Exhibit 10.11
EMPLOYMENT AGREEMENT BETWEEN
SORRENTO NETWORKS CORPORATION AND XXXX XXXXXXX
This EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as of
March 1, 2002. The parties to this Agreement are Sorrento Networks Corporation,
a New Jersey corporation ("the Company") and Xxxx Xxxxxxx ("Executive").
This Agreement is made with reference to the following facts:
A. The Company desires to engage Executive's services on the terms and
conditions set forth in this Agreement.
B. Executive desires to be employed by the Company on the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, the parties agree as follows:
1. EMPLOYMENT.
1.1 The Company hereby employs Executive, and Executive hereby accepts
employment by the Company, upon the terms and conditions set forth
in this Agreement.
1.2 Executive shall serve as Chairman of the Board ("Chairman"),
President and Chief Executive Officer ("CEO") of the Company and
shall report directly to the Company's Board of Directors ("Board").
It is possible that Executive may additionally be appointed to other
leadership positions with the Company's subsidiaries. If so, this
Agreement, including the compensation provisions, will apply to any
such additional positions.
1.3 Executive shall do and perform all services, acts or things
necessary to manage and conduct the business of the Company,
consistent with the bylaws of the Company and as required by the
Board, which are customarily associated with the positions of
Chairman, President and/or CEO. These duties shall include, without
limitation, overseeing the financial, sales, marketing, technical,
product development and strategic aspects of the Company's business,
devising and executing plans and strategies in these areas,
overseeing a management team, and reporting to the Board regarding
the Company's current business and future strategies.
1.4 Unless the parties otherwise agree in writing, during the term of
this Agreement, Executive shall perform his services at the
Company's corporate offices; provided, however, that the Company may
from time to
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time require Executive to travel to other locations in connection
with the Company's business.
2. LOYAL AND CONSCIENTIOUS PERFORMANCE; NONCOMPETITION.
2.1 Executive shall devote his full business energies, interest,
abilities and productive time to the Company. Except with the prior
written consent of the Board, during his employment with the
Company, Executive will not accept other employment, consulting work
or render other services to any person, business or organization;
provided, however, this paragraph shall not preclude Executive from
engaging in civic, charitable or religious activities, or from
serving on boards of directors of companies or organizations that do
not present any conflict with the interests of the Company or
otherwise adversely affect the performance of Executive's duties.
2.2 Except as permitted herein, Executive agrees not to acquire, assume
or participate in, directly or indirectly, any position, investment
or interest that Executive knows or should know is adverse or
antagonistic to the Company, its business, clients, strategic
partners, investors or prospects. The passive ownership of less than
five percent (5%) of the outstanding shares of capital stock of any
publicly-traded corporation shall not constitute a breach of this
paragraph.
3. COMPENSATION.
3.1 The Company shall pay Executive an annual salary of Two Hundred
Fifty Thousand Dollars ($250,000) per year, payable in accordance
with the Company's regular payroll practices. Executive's annual
salary shall be prorated for any partial year of employment.
3.2 Executive's annual salary shall be reviewed annually by the Board
and may be increased by the Board in its sole discretion.
3.3 Executive shall be entitled to such bonuses (if any) or stock
options (if any) in addition to the stock options described in this
Agreement, as is determined by the Board in its sole discretion.
3.4 All of Executive's compensation shall be subject to customary
withholding taxes and any other employment taxes as are commonly
required to be collected or withheld by the Company.
3.5 The Company shall also pay Executive an after-tax living allowance
of $2,750 per month for a period of 2 years.
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3.6 The Company agrees to reimburse Executive for all reasonable and
necessary business expenses incurred during Executive's employment,
subject to the Company's standard documentation requirements.
3.7 Executive shall, in accordance with Company policy and the terms of
the applicable plan documents, be eligible to participate in
benefits under any benefit plan that may be in effect from time to
time and made available to its executives or key management
employees. The Company may modify or cancel its benefit plan(s) in
its discretion, consistent with the requirements of state or federal
law.
3.8 Executive shall, in accordance with Company policy, be entitled to
five weeks of paid vacation, accrued daily, per year. Executive
shall not accrue more than ten weeks of vacation, and shall use such
vacation in a manner that is minimally disruptive to Company's
business.
3.9 The Company agrees to defend and indemnify Executive pursuant to the
Indemnification Agreement attached as Exhibit D.
3.10 Subject to the Board's approval through a duly enacted resolution,
and subject to the provisions below, Executive will be granted an
option to purchase 475,000 additional shares of FIBR stock ("the
Option").
(a) Except as otherwise specifically provided in this Agreement, the
terms of the Option shall be governed by the Company's standard
stock option and/or stock plan documentation.
(b) The exercise price of the Option shall be the NASDAQ closing
price on March 1, 2002.
(c) The Option shall vest and become exercisable in accordance with
the following schedule:
o 20,000 shares on the first of each month between April 2002
and March 2003;
o 100,000 shares on April 1, 2003; and
o 22,500 shares per month from May 1, 2003 until full vesting.
(d) If the outstanding shares of FIBR stock are increased,
decreased, changed into or exchanged for a different number or kind
of shares (an "Event") on or before December 31, 2002, then
appropriate and proportional adjustment shall be made in the number
and kind of Executive's Option to prevent the dilution or
enlargement of Executive's rights under the Option. The reference
point for the total FIBR shares
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outstanding shall be March 1, 2002. If additional stock options are
awarded to Executive pursuant to this sub-paragraph, the strike
price for any additional stock options shall be the average of the
NASDAQ closing price on the third, fourth and fifth trading days
following the Company's issuance of a public announcement regarding
the Event.
3.11 The 125,000 option shares previously granted to Executive on or
about September 17, 2001 shall irrevocably and fully vest on March
1, 2002.
3.12 The Company shall also pay mileage expense to Executive for one
weekly round-trip between San Diego and Rancho Mirage, as originally
provided for in Executive's September 17, 2001 Agreement.
4. TERM.
This Agreement shall be effective as of March 1, 2002. Executive's
employment under this Agreement is for no specified term. Executive
shall be an at-will employee, such that either the Company or
Executive may terminate Executive's employment at any time, with or
without cause or notice, and with or without reason, subject to the
parties' rights and obligations as provided in this Agreement. This
Agreement shall also terminate upon Executive's death or disability,
as that term is defined in paragraph 6.4 below.
5. BOARD OF DIRECTORS.
Executive's continued service on the Board shall be subject to and
governed by all applicable bylaws, articles of incorporation and
laws.
6. SEVERANCE AND POST-EMPLOYMENT OBLIGATIONS.
6.1 Upon the termination of Executive's employment for any reason,
Executive shall be paid his accrued salary plus any accrued and
unused vacation through the effective date of termination. Except as
expressly set forth below, Executive's entitlement to salary,
benefits or other compensation shall cease upon the termination of
Executive's employment.
6.2 If Executive's employment is terminated by the Company without Cause
(as defined in section 6.3(b)), or by Executive for Good Reason (as
defined in section 6.3(a)), Executive and the Company each agree
that they shall be bound by the terms of the Consulting Agreement
attached hereto as Exhibit A. In addition, if, after being notified
by the Company of his obligation to sign the waiver and general
release, Executive executes a waiver and general release of claims
substantially in the form of Exhibit B within 20 days of the
effective date of termination of his employment, the Company will
immediately vest Executive's then-unvested stock options
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and will, within 72 hours, pay Executive a lump sum amount equal
to two times (2x) his then-current annual salary. The Company
will also continue Executive's health and life insurance and
other benefits for a two (2) year period.
6.3 If Executive's employment is terminated by the Company for Cause, or
by the Executive for other than Good Reason, Executive's entitlement
to salary, benefits or other compensation ends as of Executive's
termination date. In addition, Executive and the Company each agree
that they shall be bound by the terms of the Consulting Agreement
attached hereto as Exhibit A.
(a) "Good Reason" as used in this Agreement means (i) any breach by
the Company of this Agreement, which breach has not been cured
within ten (10) business days after written notice of such breach
has been given by Executive to the Company; (ii) any materially
adverse change in Executive's status, position or responsibilities;
or (iii) any "Change of Control," if Executive tenders his
resignation within ninety (90) days of the "Change of Control."
(b) "Cause" as used in this Agreement means:
(i) the failure or refusal by Executive to perform his duties
hereunder that has not been remedied within ten (10)
business days after written demand for substantial
performance has been delivered to Executive by the
Company, which demand identifies the manner in which
Company believes that the Executive has not performed
such duties and the steps required to cure such failure
to perform;
(ii) the conviction of Executive of, or the entering of a plea
of nolo contendere by Executive with respect to, a
felony;
(iii) Executive's drug or alcohol addiction; or
(iv) Executive's death or any disability which prevents
Executive from substantially performing the essential
functions of his position for a period of 60 days or
more. However, in the event of Executive's death,
Executive's stock options shall continue to vest for
twelve (12) months.
(c) "Change of Control" shall have occurred if:
(i) a majority of the directors of the Company are persons
other than persons: (A) for whose election proxies shall
have
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been solicited by the Board of Directors of the Company,
or (B) who are then serving as directors appointed by the
Board of Directors to fill vacancies on the Board of
Directors caused by death or resignation (but not by
removal) or to fill newly-created directorships; or
(ii) fifty-one percent (51%) or more of the outstanding voting
power of the Company shall have been acquired after the
date hereof (as defined in Rule 13d-3 under the 1934 Act
or any successor rule thereto) by any person, or group of
two or more persons acting as a partnership, limited
partnership, syndicate, or other group acting in concert
for the purpose of acquiring, holding or disposing of
voting stock of the Company; or
(iii) a reorganization, merger, consolidation or other
corporate transaction or sale or liquidation or other
disposition of all or substantially all of the assets of
the Company occurs (other than (i) a transaction with a
subsidiary of the Company other than Sorrento Networks,
Inc. or (ii) a transaction in which the holders of voting
stock of the Company immediately before such disposition
as a class continue to hold immediately after the merger
at least fifty percent (50%) of all outstanding voting
power of the surviving or resulting corporation or its
parent (including, without limitation, a company which
owns directly or indirectly the Company or all or
substantially all of its pre-acquisition assets) in
substantially the same proportion as their ownership of
common stock of the Company immediately before the
transaction).
6.4 If Executive's employment is terminated because of disability, the
Company agrees to:
(a) pay Executive an amount equal to the pro-rata difference between
any disability benefits and Executive's then-current annual base
salary, for a period of two years;
(b) continue vesting Executive's unvested stock options for five (5)
years;
(c) continue Executive's health and other benefits for the duration
of the disability or for five (5) years, whichever is longer.
For purposes of this Agreement, "disability" shall mean the
expiration of a continuous period of ninety (90) days during which
Executive is unable to perform his assigned duties due to physical
or mental incapacity. In the event of any dispute regarding the
existence of Executive's disability, the
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matter will be resolved by the determination of a majority of three
physicians qualified to practice medicine in California, one to be
selected by each of Executive and the Board and the third to be
selected by the two designated physicians. For this purpose,
Executive will promptly submit to appropriate medical examinations.
In the event of a disability dispute, the three physician panel must
make its determination within 90 days of the initiation of the
dispute. During that determination period, Executive shall continue
to receive his salary and other benefits and his stock options shall
continue to vest as scheduled.
7. CONFIDENTIAL AND PROPRIETARY INFORMATION; NONSOLICITATION.
7.1 Executive agrees to execute and abide by the Proprietary Information
and Inventions Agreement attached to this Agreement as Exhibit C.
7.2 Executive recognizes that his employment with the Company will
involve contact with information of substantial value to the
Company, which is not generally known, and which gives the Company
an advantage over its actual or potential competitors who do not
know or use it. This confidential information includes, but is not
limited to, techniques, designs, drawings, processes, inventions,
developments, plans, code, equipment, prototypes, and employee,
sales, marketing, and customer, business and financial information
relating to the business, products, practices and techniques of the
Company (hereinafter referred to as "Confidential and Proprietary
Information"). During his employment and thereafter, Executive will
at all times regard and preserve as confidential such Confidential
and Proprietary Information and will not publish or disclose any
part of such Confidential and Proprietary Information in any manner
at any time, or use any Confidential and Proprietary Information
except on behalf of the Company, without the prior written consent
of the Company.
7.3 While employed by the Company and for one (1) year thereafter,
Executive agrees that in order to protect the Company's Confidential
and Proprietary Information from unauthorized use, that Executive
will not, either directly or through others, solicit, attempt to
solicit or provide any assistance to anyone soliciting or attempting
to solicit: (i) any employee, consultant or independent contractor
of the Company to terminate his or her relationship with the Company
in order to become an employee, consultant or independent contractor
to or for any other person or business entity; or (ii) the business
of any customer, partner or strategic alliance of the Company which,
at the time of termination or immediately prior thereto, was doing
business with the Company, to the extent that that business involves
and developing, designing, producing, or marketing any
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product or service being developed, designed, produced, or marketed
by the Company as of the date of termination or immediately prior
thereto.
8. TRADE SECRETS OF OTHERS.
It is the understanding of both the Company and Executive that Executive
shall not divulge to the Company any confidential information or trade
secrets belonging to others, including Executive's former employers, nor
shall the Company seek to elicit from Executive any such information.
Consistent with the foregoing, Executive shall not provide to the Company,
and the Company shall not request, any documents or copies of documents
containing such information.
9. ASSIGNMENT AND BINDING EFFECT.
This Agreement shall be binding upon and inure to the benefit of Executive
and Executive's heirs, executors, personal representatives, assigns,
administrators and legal representatives. Due to the unique and personal
nature of Executive's duties under this Agreement, neither this Agreement
nor any rights or obligations under this Agreement shall be assignable by
Executive. This Agreement shall be binding upon and inure to the benefit of
the Company and its successors, assigns and legal representatives. The
Company will require any successor to all or substantially all of the
business and/or assets of the Company, to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken
place.
10. NOTICES.
10.1 All notices or demands of any kind required or permitted to be given
by the Company or Executive under this Agreement shall be given in
writing and shall be personally delivered (and receipted for) or
mailed by certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Company:
Sorrento Networks Corporation
0000 Xxxx Xxx Xxxx
Xxx Xxxxx, XX 00000
If to Executive:
Xxxx Xxxxxxx
Xxx Xxxxxxxx Xxxxx
Xxxxxx Xxxxxx, XX 00000
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Any such written notice shall be deemed received when personally
delivered or three (3) days after its deposit in the United States
mail as specified above. Either party may change its address for
notices by giving notice to the other party in the manner specified
in this section.
11. INTERPRETATION; CONSTRUCTION.
The headings set forth in this Agreement are for convenience of reference
only and shall not be used in interpreting this Agreement. This Agreement
has been drafted by legal counsel representing the Company, but Executive
has consulted with his own independent counsel with respect to the terms of
this Agreement. Each party and its counsel has reviewed and revised, or had
an opportunity to review and revise, this Agreement, and the normal rule
that any ambiguities are to be resolved against the drafting party shall
not be employed in the interpretation of this Agreement.
12. REPRESENTATIONS AND WARRANTIES.
Executive represents and warrants that he is not restricted or prohibited,
contractually or otherwise, from entering into and performing each of the
terms and covenants contained in this Agreement, and that his execution and
performance of this Agreement will not violate or breach any other
agreements between Executive and any other person or entity.
13. ARBITRATION.
13.1 The parties agree to arbitrate any dispute, claim, or controversy
arising from or concerning Executive's employment, his termination
from employment, any terms or conditions of his employment, the
interpretation or enforcement of this Agreement or the rights and
duties of any person in relation to this Agreement, including
without limitation claims of employment discrimination or harassment
under Title VII of the Civil Rights Act, the California Fair
Employment & Housing Act, the Age Discrimination in Employment Act,
the Americans with Disabilities Act, or 42 U.S.C. section 1981,
claims for violation of the Employment Retirement Income Security
Act, the California Labor Code, or the Fair Labor Standards Act,
claims for breach of employment contract or the implied covenant of
good faith and fair dealing, wrongful discharge, or tortious conduct
(whether intentional or negligent) including defamation,
misrepresentation, fraud or infliction of emotional distress, but
excluding claims for workers' compensation benefits or claims for
wages before the California Department of Industrial Relations
(collectively, "Covered Claims").
13.2 The arbitration shall be conducted by a single neutral arbitrator in
accordance with the then-current rules issued by the American
Arbitration
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Association ("AAA") for resolution of employment disputes. The
arbitration shall take place in the City of San Diego. The Company
will pay the fee for the arbitration proceeding, as well as any
other charges by the AAA.
13.3 The parties hereby authorize the use of the AAA's Optional Rules for
Emergency Measures of Protection in any matter involving the alleged
breach of Executive's obligations regarding confidentiality,
inventions, non-solicitation or limitations on other employment or
activities outside of his employment with the Company.
13.4 The Arbitrator shall issue a written award. The award shall be final
and binding upon the parties. The arbitrator shall have the power to
award any type of relief that would be available in a court of
competent jurisdiction. Any award may thereafter be entered as a
judgment in any court of competent jurisdiction.
13.5 The parties agree to file any demand for arbitration within the time
limit established by the applicable statute of limitations for the
asserted claims. Failure to demand arbitration within the prescribed
time period shall result in waiver of any claims.
13.6 It is the intent of the parties to provide for mandatory arbitration
to the fullest extent of, but not beyond what is permitted by,
applicable law. A court construing this arbitration provision may
modify or interpret it to the extent necessary so as to render it
enforceable. If the parties' agreement to arbitrate is declared
unenforceable and cannot be administered, interpreted, or modified
to be enforceable, Executive agrees to waive any right he may have
to a jury trial with respect to any Covered Claim.
14. LITIGATION COSTS.
Should any litigation, arbitration, or administrative action be commenced
concerning a Covered Claim, the party prevailing in such action shall be
entitled, in addition to such other relief as may be granted, to a
reasonable sum for that party's costs and attorney's fees, which shall be
determined by the court, arbitrator, or administrative agency.
15. AMENDMENT AND WAIVER.
The provisions of this Agreement may be amended or waived only with the
prior written consent of the Company and Executive, and no course of
conduct or failure or delay in enforcing the provisions of this Agreement
shall affect the validity, binding effect or enforceability of this
Agreement.
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16. CHOICE OF LAW.
This Agreement is made in San Diego, California. The parties agree that it
shall be construed and interpreted in accordance with the laws of the State
of California.
17. INTEGRATION.
This Agreement (and any attached Exhibits) is the complete, final and
exclusive agreement of the parties relating to the subject matter of this
Agreement, and supersedes all prior implied, oral and/or written agreements
or arrangements between the parties unless otherwise expressly provided
herein.
18. ASSUMPTION.
The Company shall require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all
of the business or assets of the Company, expressly to assume and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform if no such succession had taken place.
19. SEVERABILITY.
The finding by a court or arbitrator of the unenforceability, invalidity or
illegality of any provision of this Agreement shall not render any other
provision of this Agreement unenforceable, invalid or illegal. It is the
parties' desire that such court or arbitrator should modify or replace any
invalid or unenforceable term or provision with a valid and enforceable
term or provision that will most accurately represent the parties'
intention with respect to the invalid or unenforceable term or provision.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
SORRENTO NETWORKS CORPORATION
------------------------------------ ----------------------------------
XXXX XXXXXXX XXXXXX X. XXXXXXX
On Behalf of the Board of Directors
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EXHIBIT A
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is entered into by Xxxx Xxxxxxx
("Consultant") and Sorrento Networks Corporation ("Company"), with respect to
the following facts:
A. Until _______________, Consultant was employed by the Company.
B. Consultant and Company have agreed to continue their relationship, on
the grounds set forth in this Agreement.
NOW, THEREFORE, the parties agree as follows:
1.1.1 Agreement to Act as Consultant. Consultant agrees to act as a
consultant to Company to provide assistance with business strategies and matters
related to the business and/or operations of the Company and/or its
subsidiaries.
1.1.2 Duties. Consultant's duties under this Agreement shall consist of
providing advice and counsel to Company's president, chief executive or his
designee, as requested by Company's President, Chief Executive Officer or his or
her designee during the term of this Agreement. Consultant shall be responsible
for providing his own office, supplies and clerical support necessary for the
performance of his duties; however, Company shall reimburse Consultant for any
out-of-pocket expenses incurred by Consultant with the prior consent of Company
in furtherance of the performance of his duties hereunder. Consultant's total
commitment of time pursuant to this Agreement shall not exceed 8 hours in any
given month.
1.1.3 Term and Termination. This Agreement shall become effective on the
Effective Date of the termination of Consultant's employment with the Company.
This Agreement shall remain in effect for a period of 24 months, unless
terminated earlier by a written agreement signed by Consultant and a duly
authorized officer of Company.
1.1.4 Compensation. Except as set forth in this Agreement, Consultant shall
not be entitled to receive any commissions, bonuses, or other compensation or
benefits, in any form, in connection with this Agreement, unless agreed to in
writing by Company's Chief Executive Officer or as provided for elsewhere in the
Employment Agreement.
1.1.5 No Other Employment. The parties agree that it is a material term of
this Agreement that Consultant be available to render services exclusively to
Company in areas in which Company, or any of its subsidiaries, is engaged in
business, is planning to engage in business or is considering engaging in
business within the field of business conducted by the Company as of the date of
termination of employment of Consultant
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(the "Field of Interest"). Consultant shall not during the term of this
Agreement provide with or without remuneration, and whether as an employee,
director, consultant or contractor, any advice, counsel, information or services
to any other person, business or entity that is engaged in the Field of
Interest.
Consultant shall be responsible for notifying Company of any services rendered
that may potentially violate this paragraph before such services are rendered.
Violation of this paragraph by Consultant shall be grounds for the termination
of this Agreement by Company. In the event of a breach of this paragraph by
Consultant, Company shall be entitled to recover from Consultant all amounts
paid to Consultant at any time after Consultant performed services in violation
of this sub-paragraph 5, plus all costs and attorneys' fees.
1.1.6 Confidential and Proprietary Information. Consultant acknowledges
that in the course of his activities pursuant to this Agreement he may receive
non-public information related to the products, technologies, procedures,
customers, sales, prices, contracts, strategies, operations, and the like.
Consultant agrees not disclose or divulge to anyone that is not an employee of
the Company or any subsidiary thereof at the time of such disclosure, any
non-public information of the Company or any of its subsidiaries or any Trade
Secret as that term is defined by the Uniform Trade Secrets Act (California
Civil Code section 3426 et seq. ("UTSA")), including but not limited to any
information relating to the Company's (or any subsidiary thereof) patents or
patent applications, formulae or processes, customer relationships, sales
strategies, forecasts, business marketing or sales plans. This paragraph is
intended to be interpreted as broadly as possible under applicable law, and is
intended to supplement, not restrict or limit, any rights the Company or any
subsidiary thereof may already have under the UTSA, or any prior agreements
signed by Consultant in connection with his employment by, or separation from,
the Company, or any predecessor, or subsidiary thereof. This term is intended by
the parties to survive the termination of other obligations of the parties
pursuant to this Agreement.
1.1.7 Resolution of Disputes. Any and all disputes or claims that may arise
between Consultant and the Company, or any employee or subsidiary thereof,
concerning the application, interpretation or enforcement of this Agreement (but
excluding claims under the UTSA) must be resolved by binding arbitration before
a single arbitrator, to be held in San Diego. Such arbitration shall be
conducted in accordance with the Employment Dispute Resolution Rules of the
American Arbitration Association. Any party may petition any court having
jurisdiction for an order enforcing any arbitration award pursuant to this
paragraph. Following any arbitration or other proceeding pursuant to this
paragraph, the court or arbitrator shall have the authority to award the party
it determines to be the prevailing party its costs and reasonable attorneys'
fees incurred in connection with the proceeding.
1.1.8 Severability. Should any arbitrator, court or other body determine
that a term of this Agreement is unenforceable, then that term shall be deemed
to be deleted.
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However, the validity and enforceability of the remaining terms shall not be
affected by the deletion of the unenforceable term.
1.1.9 Modification. This Agreement may be modified only by a writing signed
by Consultant and by a duly authorized officer of Company.
1.1.10 Entire Agreement. This Consulting Agreement contains the entire
agreement between Consultant and Company with respect to the subject matters
covered herein. The parties agree that they have no other agreements, expressed
or implied, on these subjects, except as expressly referenced herein.
IN WITNESS WHEREOF, the undersigned has executed this Agreement on the date
shown below.
Dated: By:
-------------------------------- --------------------------------
Xxxx Xxxxxxx
Dated: SORRENTO NETWORKS CORPORATION
--------------------------------
By:
--------------------------------
*
Its:
-------------------------------
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EXHIBIT B
RELEASE AND WAIVER OF CLAIMS
In consideration of the payments and other benefits described in the
Employment Agreement dated March 1, 2002, to which this form is attached, I,
XXXX XXXXXXX, hereby furnish SORRENTO NETWORKS CORPORATION. (the "Company"),
with the following release and waiver ("Release and Waiver").
I hereby release, and forever discharge the Company, its officers,
directors, agents, employees, stockholders, successors, assigns, affiliates and
benefit plans, of and from any and all claims, liabilities, demands, causes of
action, costs, expenses, attorneys' fees, damages, indemnities and obligations
of every kind and nature, in law, equity, or otherwise, known and unknown,
suspected and unsuspected, disclosed and undisclosed, arising at any time prior
to and including my employment termination date with respect to any claims
relating to my employment or the termination of my employment, including but not
limited to claims pursuant to any federal, state or local law relating to
employment, such as discrimination claims under the California Fair Employment
and Housing Act, the Federal Age Discrimination in Employment Act of 1967, as
amended ("ADEA"), or Title VII of the Civil Rights Act of 1964, or claims for
wrongful termination, breach of the covenant of good faith and fair dealing,
contract claims, tort claims, and wage or benefit claims, including but not
limited to, claims for salary, bonuses, commissions, stock, stock options,
vacation pay, fringe benefits, severance pay or any form of compensation.
In releasing claims unknown to me at present, I am waiving all rights and
benefits under Section 1542 of the California Civil Code, and any law or legal
principle of similar effect in any jurisdiction:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
I acknowledge that, among other rights, I am waiving and releasing any
rights I may have under the ADEA, that this release and waiver is knowing and
voluntary, and that the consideration given for this release and waiver is in
addition to anything of value to which I was already entitled as an Executive of
the Company.
I further acknowledge that I have been advised, as required by the Older
Workers Benefit Protection Act, that: (a) the release and waiver granted herein
does not relate to claims which may arise after this release and waiver is
executed; (b) I have the right to consult with an attorney prior to executing
this release and waiver (although I may choose voluntarily not to do so); and if
I am over 40 years old upon execution of this (c)
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I have twenty-one (21) days from the date of termination of my employment with
the Company in which to consider this release and waiver (although I may choose
voluntarily to execute this release and waiver earlier); (d) I have seven (7)
days following the execution of this release and waiver to revoke my consent to
this release and waiver; and (e) this release and waiver shall not be effective
until the seven (7) day revocation period has expired ("the Effective Date").
Date:
---------------------------------- -----------------------------------
XXXX XXXXXXX
16
EXHIBIT C
SORRENTO NETWORKS CORPORATION
EMPLOYEE PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
In consideration of my employment or continued employment by SORRENTO
NETWORKS CORPORATION (the "Company"), and the compensation now and hereafter
paid to me, I, XXXX XXXXXXX, hereby agree as follows:
1. NONDISCLOSURE.
1.1 Recognition of Company's Rights; Nondisclosure. At all times during
my employment and thereafter, I will hold in strictest confidence
and will not disclose, use, lecture upon or publish any of the
Company's Proprietary Information (defined below), except as such
disclosure, use or publication may be required in connection with my
work for the Company, or unless the Company expressly authorizes
such in writing. I will obtain Company's written approval before
publishing or submitting for publication any material (written,
verbal, or otherwise) that relates to my work at Company and/or
incorporates any Proprietary Information. I hereby assign to the
Company any rights I may have or acquire in such Proprietary
Information and recognize that all Proprietary Information shall be
the sole property of the Company and its assigns.
1.2 Proprietary Information. The term "Proprietary Information" shall
mean any and all confidential and/or proprietary knowledge, data or
information of the Company. By way of illustration but not
limitation, "Proprietary Information" includes (a) trade secrets,
inventions, mask works, ideas, processes, formulas, source and
object codes, data, programs, other works of authorship, know-how,
improvements, discoveries developments, designs and techniques
(hereinafter collectively referred to as "Inventions"); and (b)
information regarding plans for research, development, new products,
marketing and selling, business plans, budgets and unpublished
financial statements, licenses, prices and costs, suppliers and
customers; and (c) information regarding the skills and compensation
of other employees of the Company. Notwithstanding the foregoing, it
is understood that, at all such times, I am free to use information
which is generally known in the trade or industry, which is not
gained as result of a breach of this Agreement, and my own, skill,
knowledge, know-how and experience to whatever extent and in
whichever way I wish.
1.3 Third Party Information. I understand, in addition, that the Company
has received and in the future will receive from third parties
confidential or proprietary information ("Third Party Information")
subject to a duty on the Company's part to maintain the
confidentiality of such information and to
17
use it only for certain limited purposes. During the term of my
employment and thereafter, I will hold Third Party Information in
the strictest confidence and will not disclose to anyone (other than
Company personnel who need to know such information in connection
with their work for the Company) or use, except in connection with
my work for the Company, Third Party Information unless expressly
authorized by an officer of the Company in writing.
1.4 No Improper Use of Information of Prior Employers and Others. During
my employment by the Company I will not improperly use or disclose
any confidential information or trade secrets, if any, of any former
employer or any other person to whom I have an obligation of
confidentiality, and I will not bring onto the premises of the
Company any unpublished documents or any property belonging to any
former employer or any other person to whom I have an obligation of
confidentiality unless consented to in writing by that former
employer or person. I will use in the performance of my duties only
information which is generally known and used by persons with
training and experience comparable to my own, which is common
knowledge in the industry or otherwise legally in the public domain,
or which is otherwise provided or developed by the Company.
2. ASSIGNMENT OF INVENTIONS.
2.1 Proprietary Rights. The term "Proprietary Rights" shall mean all
trade secret, patent, copyright, mask work and other intellectual
property rights throughout the world.
2.2 Prior Inventions. Inventions, if any, patented or unpatented, which
I made prior to the commencement of my employment with the Company
are excluded from the scope of this Agreement. To preclude any
possible uncertainty, I have set forth on Exhibit 1 (Previous
Inventions) attached hereto a complete list of all Inventions that I
have, alone or jointly with others, conceived, developed or reduced
to practice or caused to be conceived, developed or reduced to
practice prior to the commencement of my employment with the
Company, that I consider to be my property or the property of third
parties and that I wish to have excluded from the scope of this
Agreement (collectively referred to as "Prior Inventions"). If
disclosure of any such Prior Invention would cause me to violate any
prior confidentiality agreement, I understand that I am not to list
such Prior Inventions in Exhibit 1 but am only to disclose a cursory
name for each such invention, a listing of the party(ies) to whom it
belongs and the fact that full disclosure as to such inventions has
not been made for that reason. A space is provided on Exhibit 1 for
such purpose. If no such disclosure is attached, I represent that
there are no Prior Inventions. If, in the course of my employment
with the Company, I incorporate a Prior
18
Invention into a Company product, process or machine, the Company is
hereby granted and shall have a nonexclusive, royalty-free,
irrevocable, perpetual, worldwide license (with rights to sublicense
through multiple tiers of sublicensees) to make, have made, modify,
use and sell such Prior Invention. Notwithstanding the foregoing, I
agree that I will not incorporate, or permit to be incorporated,
Prior Inventions in any Company Inventions without the Company's
prior written consent.
2.3 Assignment of Inventions. Subject to Sections 2.4, and 2.6, I hereby
assign and agree to assign in the future (when any such Inventions
or Proprietary Rights are first reduced to practice or first fixed
in a tangible medium, as applicable) to the Company all my right,
title and interest in and to any and all Inventions (and all
Proprietary Rights with respect thereto) whether or not patentable
or registrable under copyright or similar statutes, made or
conceived or reduced to practice or learned by me, either alone or
jointly with others, during the period of my employment with the
Company. Inventions assigned to the Company, or to a third party as
directed by the Company pursuant to this Section 2, are hereinafter
referred to as "Company Inventions."
2.4 Nonassignable Inventions. This Agreement does not apply to an
Invention which qualifies fully as a nonassignable invention under
Section 2870 of the California Labor Code (hereinafter "Section
2870"). I have reviewed the Notification on Exhibit 2 (Limited
Exclusion Notification) and agree that my signature acknowledges
receipt of the notification.
2.5 Obligation to Keep Company Informed. During the period of my
employment I will promptly disclose to the Company fully and in
writing all Inventions authored, conceived or reduced to practice by
me, either alone or jointly with others. In addition, I will
promptly disclose to the Company all patent applications filed by me
or on my behalf within six (6) months after termination of
employment. At the time of each such disclosure, I will advise the
Company in writing of any Inventions that I believe fully qualify
for protection under Section 2870; and I will at that time provide
to the Company in writing all evidence necessary to substantiate
that belief. The Company will keep in confidence and will not use
for any purpose or disclose to third parties without my consent any
confidential information disclosed in writing to the Company
pursuant to this Agreement relating to Inventions that qualify fully
for protection under the provisions of Section 2870. I will preserve
the confidentiality of any Invention that does not fully qualify for
protection under Section 2870.
2.6 Government or Third Party. I also agree to assign all my right,
title and interest in and to any particular Company Invention to a
third party, including without limitation the United States, as
directed by the Company.
19
2.7 Works for Hire. I acknowledge that all original works of authorship
which aremade by me (solely or jointly with others) within the scope
of my employment and which are protectable by copyright are "works
made for hire," pursuant to United States Copyright Act (17 U.S.C.,
Section 101).
2.8 Enforcement of Proprietary Rights. I will assist the Company in
every proper way to obtain, and from time to time enforce, United
States and foreign Proprietary Rights relating to Company Inventions
in any and all countries. To that end I will execute, verify and
deliver such documents and perform such other acts (including
appearances as a witness) as the Company may reasonably request for
use in applying for, obtaining, perfecting, evidencing, sustaining
and enforcing such Proprietary Rights and the assignment thereof. In
addition, I will execute, verify and deliver assignments of such
Proprietary Rights to the Company or its designee. My obligation to
assist the Company with respect to Proprietary Rights relating to
such Company Inventions in any and all countries shall continue
beyond the termination of my employment, but the Company shall
compensate me at a reasonable rate after my termination for the time
actually spent by me at the Company's request on such assistance. In
the event the Company is unable for any reason, after reasonable
effort, to secure my signature on any document needed in connection
with the actions specified in this Section 2.8, I hereby irrevocably
designate and appoint the Company and its duly authorized officers
and agents as my agent and attorney in fact, which appointment is
coupled with an interest, to act for and in my behalf to execute,
verify and file any such documents and to do all other lawfully
permitted acts to further the purposes of the preceding paragraph
with the same legal force and effect as if executed by me. I hereby
waive and quitclaim to the Company any and all claims, of any nature
whatsoever, which I now or may hereafter have for infringement of
any Proprietary Rights assigned hereunder to the Company.
3. RECORDS.
I agree to keep and maintain adequate and current records (in the form of
notes, sketches, drawings and in any other form that may be required by the
Company) of all Proprietary information developed by me and all Inventions
made by me during the period of my employment at the Company, which records
shall be available to and remain the sole property of the Company at all
times.
4. ADDITIONAL ACTIVITIES.
I agree that during the period of my employment by the Company I will not
without the Company's express written consent, engage in any employment or
business activity which is competitive with, or would otherwise conflict
with, my employment by the Company. I agree further that for the period of
my
20
employment by the Company and for one (1) year after the date of
termination of my employment by the Company I will not directly or
indirectly solicit or induce any employee of the Company to leave the
employ of the Company.
5. NO CONFLICTING OBLIGATION.
I represent that my performance of all the terms of this Agreement and as
an employee of the Company does not and will not breech any agreement to
keep in confidence information acquired by me in confidence or in trust
prior to my employment by the Company. I have not entered into, and I agree
I will not enter into, any agreement either written or oral in conflict
herewith.
6. RETURN OF COMPANY DOCUMENTS.
When I leave the employ of the Company, I will deliver to the Company any
and all drawings, notes, memoranda, specifications, devices, formulas, and
documents, together with all copies thereof, and any other material
containing or disclosing any Company Inventions, Third Party Information or
Proprietary Information of the Company. I further agree that any property
situated on the Company's premises and owned by the Company, including
disks and other storage media, filing cabinets or other work areas, is
subject to inspection by Company personnel at any time with or without
notice.
7. NOTICES.
Any notices required or permitted hereunder shall be given to the
appropriate party at the address provided for notices in the Employment
Agreement. Such notice shall be deemed given upon personal delivery to the
appropriate address or if sent by certified or registered mail, three (3)
days after the date of mailing.
8. NOTIFICATION OF NEW EMPLOYER.
In the event that I leave the employ of the Company, I will provide my new
employer with a copy of this Agreement.
9. GENERAL PROVISIONS.
9.1 Governing Law. This Agreement will be governed by and construed
according to the laws of the State of California.
9.2 Severability. In case any one or more of the provisions contained in
this Agreement shall, for any reason, be held to be invalid, illegal
or unenforceable in any respect such invalidity, illegality or
unenforceability shall not affect the other provisions of this
Agreement, and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.
21
9.3 Successors and Assigns. This Agreement will be binding upon my
heirs, executors, administrators and other legal representatives and
will be for the benefit of the Company, its successors, and its
assigns.
9.4 Survival. The provisions of this Agreement shall survive the
termination of my employment and the assignment of this Agreement by
the Company to any successor in interest or other assignee.
9.5 Employment. I agree and understand that nothing in this Agreement
shall confer any right with respect to continuation of employment by
the Company, which is governed by the Employment Agreement.
9.6 Waiver. No waiver by the Company of any breach of this Agreement
shall be a waiver of any preceding or succeeding breach. No waiver
by the Company of any right under this Agreement shall be construed
as a waiver of any other right. The Company shall not be required to
give notice to enforce strict adherence to all terms of this
Agreement.
9.7 Entire Agreement. The obligations pursuant to Sections 1 and 2 of
this Agreement shall apply to any time during which I was previously
employed, or am in the future employed, by the Company as a
consultant if no other agreement governs nondisclosure and
assignment of inventions during such period. Except for the
Employment Agreement, this Agreement is the final, complete and
exclusive agreement of the parties with respect to the subject
matter hereof. In the event of any conflict between the terms of
this Agreement and the Employment Agreement, the Employment
Agreement shall prevail. No modification of or amendment to this
Agreement, nor any waiver of any rights under this Agreement, will
be effective unless in writing and signed by the party to be
charged.
I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I HAVE COMPLETELY
FILLED OUT EXHIBIT B TO THIS AGREEMENT.
Dated:
---------------------------------- ---------------------------------
XXXX XXXXXXX
ACCEPTED AND AGREED TO:
SORRENTO NETWORKS CORPORATION
Dated: May 15, 2002
------------ ---------------------------------
XXXXXX X. XXXXXXX
On Behalf of the Board of Directors
22
EXHIBIT 1
TO: SORRENTO NETWORKS CORPORATION
FROM: XXXX XXXXXXX
DATE: ________________
SUBJECT: PREVIOUS INVENTIONS
The following is a complete list of all inventions or improvements relevant to
the subject matter of my employment by SORRENTO NETWORKS CORPORATION (the
"COMPANY") that have been made or conceived or first reduced to practice by me
alone or jointly with others prior to my engagement by the Company: [ ] No
inventions or improvements. [ ] See below: ___________________________________
____________________________________________ [ ] Additional sheets attached.
DATED: _______________ ________________________
XXXX XXXXXXX
23
EXHIBIT 2
LIMITED EXCLUSION NOTIFICATION
THIS IS TO NOTIFY you in accordance with Section 2872 of the California Labor
Code that the foregoing Agreement between you and the Company does not require
you to assign or offer to assign to the Company any invention that you developed
entirely on your own time without using the Company's equipment, supplies,
facilities or trade secret information except for those inventions that either:
1. Relate at the time of conception or reduction to practice of the
invention to the Company's business, or actual or demonstrably
anticipated research or development of the Company;
2. Result from any work performed by you for the Company. To the extent
a provision in the foregoing Agreement purports to require you to
assign an invention otherwise excluded from the preceding paragraph,
the provision is against the public policy of this state and is
unenforceable. This limited exclusion does not apply to any patent
or invention covered by a contract between the Company and the
United States or any of its agencies requiring full title to such
patent or invention to be in the United States.
I ACKNOWLEDGE RECEIPT of a copy of this notification.
Dated:
---------------------------------- ------------------------------------
XXXX XXXXXXX
ACCEPTED AND AGREED TO:
SORRENTO NETWORKS CORPORATION
Dated: May 15, 2002
------------ ------------------------------------
XXXXXX X. XXXXXXX
On Behalf of the Board of Directors
**
24
EXHIBIT D
SORRENTO NETWORKS CORPORATION
INDEMNITY AGREEMENT
This Agreement is made and entered into as of March 1, 2002 by and between
Sorrento Networks Corporation, a New Jersey corporation ("the Company"), and
Xxxx Xxxxxxx ("Indemnitee").
RECITALS
WHEREAS, Indemnitee performs a valuable service to the Company in his
capacity as Chairman of the Board ("Chairman"), President and Chief Executive
Officer ("CEO") of the Company;
WHEREAS, in order to induce Indemnitee to serve as Chairman, President and
CEO of the Company, the Company has determined and agreed to enter into this
Agreement with Indemnitee;
NOW, THEREFORE, the parties agree as follows:
AGREEMENT
1. Services to the Company. Indemnitee will serve, pursuant to his March 1,
2002 Employment Agreement, as Chairman, President and CEO of the Company.
2. Indemnity. Subject to the procedures described in Section 8 below, the
Company hereby agrees to hold harmless and indemnify Indemnitee:
a. against any and all expenses (including attorneys' fees), witness
fees, damages, judgments, fines and amounts paid in settlement, and any other
amounts that Indemnitee becomes legally obligated to pay because of any claim or
claims made against him in connection with any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, arbitrational,
administrative or investigative (including an action by or in the right of the
Company, except as excluded below) to which Indemnitee is, was, or at any time
becomes a party, or is threatened to be made a party, by reason of the fact that
Indemnitee is or was a director, executive officer, officer, employee,
consultant or other agent of the Company; and
b. otherwise to the fullest extent not prohibited by the Company's
Articles of Incorporation ("the Articles"), its Bylaws or the California
Corporations Code ("the Code").
3. Limitations on Additional Indemnity. The Company shall not be obligated
to indemnify Indemnitee:
25
a. on account of any claim against Indemnitee for an accounting of
profits made from the purchase or sale of securities of the Company pursuant to
the provisions of Section 16(b) of the Securities Exchange Act of 1934 and
amendments thereto or any similar provision of any federal, state or local
statutory law;
b. on account of Indemnitee's conduct from which Indemnitee derived an
improper personal benefit;
c. on account of Indemnitee's conduct that he believed to be contrary
to the best interests of the Company or its shareholders, or that was not done
in good faith;
d. on account of Indemnitee's conduct that constituted a knowing
violation of law;
e. on account of Indemnitee's conduct which constituted a violation of
the Indemnitee's duties under Sections 310 or 316 of the Code;
f. for which payment is due Indemnitee under an insurance policy;
g. if indemnification is not lawful;
h. in connection with any proceeding (or part thereof) initiated by
Indemnitee, unless (i) such indemnification is expressly required to be made by
law, (ii) the proceeding was authorized by the Board of Directors of the
Company, (iii) such indemnification is provided by the Company, in its sole
discretion, pursuant to the powers vested in the Company under the Code, or (iv)
the proceeding is initiated pursuant to Section 9 of this Indemnity Agreement;
i. with respect to any action by or in the right of the Company:
i. if the Indemnitee is adjudged to be liable to the Company
because of Indemnitee's conduct;
ii. for expenses incurred in defending a pending action which is
settled or otherwise disposed of without court approval; or
iii. to the extent, and only to the extent, that indemnification
with respect to such action (i) would be inconsistent with the Articles or
Bylaws, or a resolution of the shareholders or agreement of the Company
prohibiting or otherwise limiting such indemnification and in effect at the time
of the accrual of the action or (ii) would be inconsistent with any condition
expressly imposed by a court in approving a settlement, unless the
indemnification has been approved by the shareholders of the Company in
accordance with Section 153 of the Code (with the shares of the Indemnitee not
being entitled to vote thereon).
26
4. Term of Indemnity. This Indemnity Agreement shall be effective as of the
date that Indemnitee became a director of the Company. This Indemnity Agreement
shall continue during the period Indemnitee is a director, executive officer,
officer, employee, consultant or other agent of the Company and shall continue
thereafter so long as Indemnitee shall be subject to any possible claim or
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, arbitrational, administrative or investigative, by reason of the fact
that Indemnitee had served in the capacity referred to herein.
5. Partial Indemnification. Indemnitee shall be entitled under this
Agreement to indemnification by the Company for a portion of the expenses
(including attorneys' fees), witness fees, damages, judgments, fines and amounts
paid in settlement, and any other amounts that Indemnitee becomes legally
obligated to pay in connection with any action, suit or proceeding referred to
in Section 2 above, even if he is not entitled to indemnification for the total
amount thereof.
6. Notification and Defense of Claim. Indemnitee agrees to notify the
Company within thirty (30) days of receiving notice of the commencement of any
action, suit or proceeding for which he seeks indemnity. After doing so:
a. the Company will be entitled to participate therein at its own
expense;
b. except as otherwise provided below, the Company may, at its option,
assume the defense thereof, with counsel subject to Indemnitee's approval, which
approval shall not be unreasonably withheld. After notice from the Company to
Indemnitee of its election to assume the defense thereof, the Company will not
be liable to Indemnitee under this Agreement for any expenses subsequently
incurred by Indemnitee. Indemnitee shall have the right to employ separate
counsel in such action, suit or proceeding but the fees and expenses of such
counsel incurred after notice from the Company of its assumption of the defense
thereof shall be at the expense of Indemnitee unless (i) the employment of
counsel by Indemnitee has been authorized by the Company, (ii) Indemnitee shall
have reasonably concluded that there may be a conflict of interest between the
Company and Indemnitee in the conduct of the defense of such action or (iii) the
Company shall not in fact have employed counsel to assume the defense of such
action, in each of which cases the reasonable fees and expenses of Indemnitee's
separate counsel shall be at the expense of the Company. The Company shall not
be entitled to assume the defense of any action, suit or proceeding brought by
or on behalf of the Company or as to which Indemnitee shall have made the
conclusion provided for in clause (ii) above; and
c. the Company shall not be liable to indemnify Indemnitee under this
Agreement for any amounts paid in settlement of any action or claim effected
without its written consent, which shall not be unreasonably withheld. The
Company shall be permitted to settle any action except that it shall not settle
any action or claim in any manner which would impose any penalty or limitation
on Indemnitee without
27
Indemnitee's written consent, which may be given or withheld in Indemnitee's
sole discretion.
7. Expenses. The Company may request reasonable and customary documentation
for any expenses incurred by Indemnitee for which Indemnitee seeks
indemnification.
8. Determination by the Company. The Company shall make a reasonable, good
faith determination as to whether indemnification of Indemnitee is required
pursuant to this Indemnity Agreement within thirty (30) days of being notified
by Indemnitee, by means of:
a. a majority vote of a quorum consisting of directors who are not
parties to such proceeding; or
b. if such quorum is not obtainable, by independent legal counsel.
9. Arbitration. Pursuant to paragraph 13 of Indemnitee's Employment
Agreement, Indemnitee and the Company agree to arbitrate any dispute regarding
this Indemnity Agreement, including any demand for arbitration.
10. Subrogation. In the event of payment under this Agreement, the Company
shall be subrogated to the extent of such payment to all of the rights of
recovery of Indemnitee, who shall execute all documents required and shall do
all acts that may be necessary to secure such rights and to enable the Company
effectively to bring suit to enforce such rights.
11. Non-Exclusivity of Rights. The rights conferred on Indemnitee by this
Agreement shall not be exclusive of any other right which Indemnitee may have or
hereafter acquired under any statute, provision of the Articles or Bylaws,
agreement, vote of shareholders or directors, or otherwise, both as to action in
his official capacity and as to action in another capacity while holding office.
12. Survival of Rights.
a. The rights conferred on Indemnitee by this Agreement shall continue
after Indemnitee has ceased to be a director, executive officer, officer,
employee or other agent of the Company or to serve at the request of the Company
as a director, executive officer, officer, employee or other agent of another
Company, partnership, joint venture, trust, employee benefit plan or other
enterprise and shall inure to the benefit of Indemnitee's heirs, executors and
administrators.
b. The Company shall require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all of
the business or assets of the Company, expressly to assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be
28
required to perform if no such succession had taken place.
13. Severability. Each of the provisions of this Agreement is a separate
and distinct agreement and independent of the others, so that if any provision
hereof shall be held to be invalid for any reason, such invalidity or
unenforceability shall not affect the validity or enforceability of the other
provisions hereof. Furthermore, if this Agreement shall be invalidated in its
entirety on any ground, then the Company shall nevertheless indemnify Indemnitee
to the fullest extent provided by the Articles, the Bylaws, the Code or any
other applicable law.
14. Governing Law. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of California.
15. Amendment and Termination. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless in writing signed by
both parties hereto.
16. Identical Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
but all of which together shall constitute but one and the same Agreement.
17. Headings. The headings of the sections of this Agreement are inserted
for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction hereof.
18. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given (i)
upon delivery if delivered by hand to the party to whom such communication was
directed or (ii) upon the third business day after the date on which such
communication was mailed if mailed by certified or registered mail with postage
prepaid:
a. if to Indemnitee, at the address indicated below his signature
hereunder.
Xxxx Xxxxxxx
Xxx Xxxxxxxx Xxxxx
Xxxxxx Xxxxxx, XX 00000
b. if to the Company, to
Sorrento Networks Corporation
0000 Xxxx Xxx Xxxx
Xxx Xxxxx, XX 00000
or to such other address as may have been furnished to Indemnitee by the
Company.
29
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and
as of the day and year first above written.
SORRENTO NETWORKS CORPORATION,
By:
--------------------------------
Printed Name: Xxxxxx X. Xxxxxxx
On Behalf of the Board of Directors
EXECUTIVE:
-------------------------------------
XXXX XXXXXXX
30
