EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into this 11th day of
February, 2000, between SONUS CORP., a Yukon Territory, Canada, corporation
("Corporation"), and XXXX X. XXXXXXXX ("Executive").
RECITALS
A. Corporation is hiring Executive as Senior Vice President and Chief
Financial Officer.
B. Corporation and Executive are entering into this Agreement to
confirm the terms of Executive's employment with Corporation and Executive's
compensation and benefits package.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following terms have the meanings set
forth in this Section 1:
"AFFILIATE" - Any person, firm, corporation, association, organization,
or unincorporated trade or business that, now or hereinafter, directly or
indirectly, controls, is controlled by, or is under common control with
Corporation.
"BOARD" - The board of directors of Corporation.
"CAUSE" - Cause for termination of employment means:
(i) A material act of fraud or dishonesty by Executive
within the course of performing his duties for Corporation or its Affiliates;
(ii) Gross negligence or intentional misconduct by Executive
in performing material duties for Corporation or its Affiliates, or
unjustifiable neglect by Executive of the performance of material
duties for Corporation or its Affiliates;
(iii) Commission of an act (or failure to take an action)
intentionally against the interest of Corporation or its Affiliates
that causes Corporation or an Affiliate material injury; or
(iv) An act of serious moral turpitude that causes Corporation
or an Affiliate material injury.
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Notwithstanding the foregoing, Executive will not be deemed to have
been terminated for Cause unless and until there has been delivered to Executive
a copy of a resolution duly adopted by the affirmative vote of not less than a
majority of the entire membership of the Board (excluding Executive if at the
time he is member of the Board), at a meeting of the Board called and held for
that purpose, finding that, in the good faith opinion of the Board, Executive
was guilty of conduct constituting Cause as defined in this Agreement and
specifying the particulars thereof in detail. Executive must have been given
reasonable notice of such meeting and Executive, together with his counsel, must
have been given an opportunity to be heard before the Board at the meeting. This
provision will not be deemed to restrict the authority, discretion, or power of
the Board, by any action taken in compliance with Corporation's articles of
incorporation and bylaws, to remove Executive as an officer or director of
Corporation, with or without Cause. Rather, the foregoing provisions merely
define, for purposes of Executive's contractual rights and remedies under this
Agreement, the circumstances in which termination of Executive's employment will
constitute termination for Cause.
"CHANGE IN CONTROL" - A change in control of Corporation means:
(i) The acquisition by any Person of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of 50 percent or more of the combined voting power of the then
outstanding Voting Securities; provided, however, that for purposes of
this paragraph (i), the following acquisitions will not constitute a
Change of Control: (A) any acquisition directly from Corporation, (B)
any acquisition by Corporation, (C) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by Corporation
or any corporation controlled by Corporation, (D) any acquisition by
Warburg, Xxxxxx Ventures, L.P. ("WPV") or by any Person that, now or
hereinafter, directly or indirectly controls, is controlled by, is
under common control with, or is otherwise an affiliate of, WPV, or (E)
any acquisition by any corporation pursuant to a transaction which
complies with clauses (A), (B), and (C) of paragraph (iii) below; or
(ii) individuals who, as of the date of this Agreement,
constitute the Board (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board; provided, however, that
any individual becoming a director subsequent to the date of this
Agreement whose election, or nomination for election by Corporation's
shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board will be considered as
though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of directors
or other actual or threatened solicitation of proxies or consents by or
on behalf of a Person other than the Board; or
(iii) consummation of a reorganization, merger, or
consolidation or sale or other disposition of all or substantially all
of the assets of Corporation (a "Business Combination") in each case,
unless, following such Business Combination, (A) all or substantially
all of the individuals and entities who were the beneficial owners of
the Voting Securities outstanding immediately prior to such Business
Combination beneficially own, directly or indirectly, more than 50
percent of, respectively, the then
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outstanding shares of common stock and the combined voting power of
the then outstanding voting securities entitled to vote generally in
the election of directors, as the case may be, of the corporation
resulting from such Business Combination (including, without
limitation, a corporation which as a result of such transaction owns
Corporation or all or substantially all of Corporation's assets either
directly or through one or more subsidiaries) in substantially the
same proportions as their ownership, immediately prior to such
Business Combination, of the Voting Securities, (B) no Person
(excluding any employee benefit plan (or related trust) of Corporation
or such corporation resulting from such Business Combination)
beneficially owns, directly or indirectly, 50 percent or more of,
respectively, the then outstanding shares of common stock of the
corporation resulting from such Business Combination or the combined
voting power of the then outstanding voting securities of such
corporation except to the extent that such ownership existed prior to
the Business Combination and (C) at least a majority of the members of
the board of directors of the corporation resulting from such Business
Combination were members of Incumbent Board at the time of the
execution of the initial agreement, or of the action of the Board,
providing for such Business Combination.
"CODE" - The Internal Revenue Code of 1986, as amended.
"COMPENSATION PLAN" - Any compensation plan such as a plan providing
for incentive or deferred compensation, stock options or other stock or
stock-related grants or awards, or any employee benefit plan such as a thrift,
investment, savings, pension, profit sharing, medical, disability, accident,
life insurance, cafeteria, or relocation plan or any other plan, policy, or
program of Corporation providing similar types of benefits to employees of
Corporation.
"COMPETITIVE ENTITY" - A Person, firm, or entity primarily engaged (in
the United States or Canada) in the national or regional retail provision or
franchising of audiology services and/or dispensing of hearing aids or in any
managed-care for hearing health benefits.
"DISABILITY" OR "DISABLED" - Inability to perform duties with
Corporation on a full-time basis by reason of "Total Disability" within the
meaning of Corporation's Group Long Term Disability Insurance Plan or any
successor plan or program maintained by Corporation. In the event Corporation no
longer maintains a similar plan or program, Disability or Disabled means
inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment.
"EFFECTIVE DATE" - February 11, 2000.
"EXCESS PARACHUTE PAYMENT" - Has the meaning given in Section 280G(b)
of the Code.
"EXCHANGE ACT" - The Securities Exchange Act of 1934, as amended.
"EXCISE TAX" - A tax imposed by Section 4999(a) of the Code, or any
successor provision, with respect to an Excess Parachute Payment.
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"GOOD REASON" - For all purposes of this Agreement, termination by
Executive of his employment with Corporation for "Good Reason" during the Term
means termination based on any of the following:
(a) A change in Executive's status or position or positions
with Corporation that represents a material demotion from Executive's
status or position or positions as of the date of this Agreement or a
material change in Executive's duties or responsibilities that is
inconsistent with such status or position or positions;
(b) A reduction by Corporation in Executive's Base Salary (as
in effect on the date of this Agreement or as increased at any time
during the Term of this Agreement); or
(c) The failure of Corporation to continue Executive's
participation (on terms comparable to those for other key executives of
Corporation) in any Plans and vacation programs or arrangements in
which other key executives of Corporation are participants (unless such
failure to continue is caused by an action or status of Executive).
"OTHER AGREEMENT" - A plan, arrangement, or agreement pursuant to
which an Other Payment is made.
"OTHER PAYMENT" - Any payment or benefit payable to Executive in
connection with a Change in Control of Corporation pursuant to any plan,
arrangement, or agreement (other than this Agreement) with Corporation, any
person whose actions result in a change in control of Corporation, or any person
affiliated with Corporation or such person.
"OUTSIDE TAX COUNSEL" - Outside tax counsel selected by Corporation and
reasonably acceptable to Executive.
"PARACHUTE PAYMENT" - A payment or benefit payable to Executive in
connection with a Change in Control of Corporation that is treated as a
parachute payment within the meaning of Code Section 280G(b)(2).
"PERSON" - Any individual, corporation, partnership, limited liability
company, group, association, or other "person," as such term is used in Section
13(d)(3) or Section 14(d) of the Exchange Act, other than Corporation or any
employee benefit plan or plans sponsored by Corporation.
"SEVERANCE PAYMENTS" - The severance payments described in Section 5.4
of this Agreement.
"TERM" - The period commencing on the Effective Date and ending on May
31, 2002.
"TERMINATION BENEFITS" - The payments and benefits described in Section
5 of this Agreement.
"TERMINATION DATE" - The date Executive's employment with Corporation
is terminated for any reason by Corporation or by Executive.
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"TOTAL PAYMENTS" - All payments or benefits payable to Executive in
connection with a Change in Control of Corporation, including Severance Payments
and Other Payments.
"VOTING SECURITIES" - Corporation's issued and outstanding securities
ordinarily having the right to vote at elections of Corporation's Board.
2. EMPLOYMENT.
Corporation hereby agrees to employ Executive, and Executive
hereby accepts employment with Corporation during the Term on the terms and
conditions set forth in this Agreement. Notwithstanding any other provision of
this Agreement, Executive is an employee at will of Corporation and Corporation
reserves the right to terminate Executive's employment at any time for any
reason or for no reason. The provisions of this Agreement dealing with
termination without Cause or for Good Reason are intended to provide contractual
benefits and do not limit Corporation's power to treat Executive as an employee
at will.
3. EXECUTIVE DUTIES.
3.1 Position and Duties. Executive agrees to render services
to Corporation as Senior Vice President and Chief Financial Officer of
Corporation and as an executive officer of such of Corporation's Affiliates as
the parties to this Agreement mutually agree, including Affiliates that may be
formed or acquired subsequent to the Effective Date. As Chief Financial Officer
of Corporation, Executive will have responsibility for all financial aspects of
Corporation's business and will have such executive and managerial duties as
Corporation's Chairman and Chief Executive Officer or President and Chief
Operating Officer prescribes from time to time. Executive will report directly
to Corporation's President and Chief Operating Officer.
3.2 Exclusive Employment. Executive agrees that during the
Term:
(a) Executive will devote substantially all his regular
business time solely and exclusively to the business of
Corporation, whether such business is operated directly by
Corporation or through one or more Affiliates of Corporation;
(b) Executive will diligently carry out his
responsibilities under this Agreement;
(c) Executive will not, directly or indirectly, without
the prior approval of the Board, provide services on behalf of
any Competitive Entity or on behalf of any subsidiary or
affiliate of any such Competitive Entity, as an employee,
consultant, independent contractor, agent, sole proprietor,
partner, member, joint venturer, corporate officer, or
director;
(d) Executive will not acquire by reason of purchase the
ownership of more than 1 percent of the outstanding equity
interest in any Competitive Entity; and
(e) Except as expressly set forth above, Executive may
engage in personal business and investment activities.
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3.3 Corporation Reserved Rights. Corporation reserves, on
its own behalf and on behalf of its shareholders, the right to
elect, from time to time, any person to its Board, to appoint
any person as an officer of Corporation, and to remove any
officer or director, including Executive, in any manner and
upon the basis or bases presently or subsequently provided for
by its articles of incorporation and bylaws. Nothing in this
Agreement will be deemed to constitute any restriction on the
authority, discretion, or power of the Board, but rather will
only give Executive contractual rights and remedies.
3.4 Proprietary Information. Executive acknowledges in the
course of Executive's employment with Corporation, Executive
will learn trade secrets and confidential information of
Corporation, which if known to competitors could damage the
business of Corporation. Such confidential information
includes, but is not limited to, some or all of the following
categories of non-public information ("Proprietary
Information"):
(a) Financial information including, but not limited to
information relating to assets, revenues, expenses, prices,
pricing structures, volume of purchases or sales or other
financial data of Corporation, or to particular products,
services, geographic areas, or time periods;
(b) Supply and service information including, but not
limited to information relating to suppliers' names and
addresses, terms of supply and service contracts or of
particular transactions, and related information about
potential suppliers to the extent that such information is not
generally known to the public, and to the extent that the
combination of suppliers or use of a particular supplier,
though generally known or available, yields advantages to
Corporation the details of which are not generally known;
(c) Marketing information including, but not limited to
information relating to details of ongoing or proposed
marketing programs or agreements by or on behalf of
Corporation, sales forecasts, advertising formats and methods
or results of marketing efforts or information about impending
transactions;
(d) Personnel information including, but not limited to
information relating to personal or medical histories,
compensation or other terms of employment, actual or proposed
promotions, hirings, resignations, disciplinary actions,
terminations or reasons therefore, training methods,
performance, or other information concerning Executives of
Corporation; and
(e) The names and addresses, and all background
information regarding affiliated audiologists and managed care
organizations having relationships with Corporation and the
terms and conditions of agreements with such parties.
Executive agrees to keep all Proprietary Information confidential.
Except as may be necessary in the performance of Executive's duties on behalf of
Corporation, Executive will make no use of and will not communicate or divulge
to any party whatsoever any Proprietary Information. Executive will not at any
time after Executive's employment with Corporation terminates use any
Proprietary Information for Executive's own benefit or on behalf of any person,
firm, partnership, association, corporation, or other party whatsoever. This
covenant
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shall not apply to any information that by means other than Executive's
deliberate or inadvertent disclosure becomes well known to the public or to
disclosure compelled by judicial or administrative proceedings after Executive
notifies and affords Corporation the opportunity to seek confidential treatment
of compelled disclosures.
4. COMPENSATION AND BENEFITS.
4.1 Base Salary. As compensation for the performance of
Executive's services during the Term, inclusive of services as an officer and
director of Corporation's Affiliates, Corporation will pay to Executive in
accordance with its normal payroll practices (i) $1,000 until Executive begins
his duties on a full-time basis in Portland, Oregon (the "Start Date"), which
shall not be later than March 20, 2000, and (ii) from and after the Start Date
an annual salary (the "Base Salary") of $166,000 per year, subject to such
increases (but not decreases) as are determined from time to time by the Board,
or a compensation committee designated by the Board.
4.2 Incentive Bonuses.
4.2.1 Initial Bonus. Upon execution of this Agreement,
Corporation agrees to pay Executive a first year bonus ( the "Initial Bonus")
for services to be performed in Corporation's fiscal year ending July 31, 2000,
in an amount equal to $10,312.50, payable in two installments (without interest)
on the first day of May 2000 and August 2000. Notwithstanding any provision of
Section 5, a prorated portion of the Initial Bonus will be payable even if
Executive dies, becomes disabled, or is terminated without Cause or for Good
Reason within such fiscal year. Executive will be eligible to receive an
additional bonus amount (the "Additional Initial Bonus") of up to $10,312.50 for
services to be performed in Corporation's fiscal year ending July 31, 2000. The
amount of the Additional Initial Bonus will be determined by Corporation's
Chairman and Chief Executive Officer in his sole discretion based on his
evaluation of Executive's performance. The Additional Initial Bonus will be
payable no later than August 31, 2000.
4.2.2 Annual Bonus. During the Term of this Agreement,
beginning with Corporation's fiscal year beginning August 1, 2000, Executive
will be entitled to participate in such bonus and profit-sharing plans as
Corporation may provide for its senior executive employees generally.
4.3 Stock Options
4.3.1 Option Awards. Corporation will grant Executive
nonqualified stock option awards for 200,000 shares of Corporation's common
stock (the "Option") under Corporation's Stock Award Plan (the "Plan").
The Option will have the following additional features:
o The option purchase price per share will be the Fair
Market Value (as defined in the Plan) on the Effective Date or $4.00, whichever
is greater;
o The Option will have a term of 10 years, commencing on
the Effective Date;
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o The Option will be exercisable as follows:
o The Option will be immediately exercisable as to
50,000 shares; and
o The Option will become exercisable as to an
additional 50,000 shares on the first, second and third
anniversaries of the Effective Date.
o The Option will become immediately and fully exercisable
in the event that, at any time following a Change in Control of Corporation,
Executive is terminated without Cause or one of the events described in the
definition of Good Reason in Section 1 of this Agreement occurs (provided,
however, that for this purpose, an acquisition of more than 50 percent of the
Voting Securities by WPV, or any person that directly or indirectly controls, is
controlled by, is under common control with, or is otherwise affiliated with
WPV, will constitute a Change in Control);
o The Option will be governed by an Award Agreement (as
defined in the Plan) as approved by the Board; and
o Vested Options will remain exercisable for 90 days after
termination of employment or, in the case of termination due to death or
Disability, for one year.
4.4 Other Benefits. During the term of this Agreement,
Executive will be entitled to participate in all Compensation Plans (including
Compensation Plans adopted following the Effective Date) covering Corporation's
key executive and managerial employees (as described in Corporation's employee
manual, as amended from time to time), including, without limitation,
Compensation Plans providing medical, disability, and life insurance benefits,
and vacation pay.
4.5 Temporary Living and Moving Expenses. Corporation will
reimburse Executive up to $1,500 per month for temporary living expenses through
June 2000 or until Executive has relocated his primary residence to Portland,
Oregon, whichever first occurs. In addition, Corporation will reimburse up to
$40,000 in moving expenses for Executive and his family, including amounts
actually paid for travel costs associated with selecting a new home, closing
costs and real estate commissions related to sale of Executive's prior residence
and purchasing a new residence in Portland, and moving and transfer costs.
4.6 Expenses. Executive is authorized to incur on behalf of
Corporation, and Corporation will directly pay or will fully reimburse Executive
for all customary and reasonable out-of-pocket expenses incurred for promoting,
pursuing, or otherwise furthering the business of Corporation or its affiliates.
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5. TERMINATION OF AGREEMENT.
5.1 Death. If Executive dies during the Term, Corporation will
pay to Executive's representative his Base Salary through the date of death. All
benefits, including death benefits, to which Executive is then entitled under
Compensation Plans in which Executive is a participant will be payable as
provided in those Compensation Plans. This Agreement will terminate as of the
date of death and Corporation will have no further obligations to Executive
under this Agreement.
5.2 Disability. In the event Executive becomes Disabled during
the Term, Executive will remain an employee of Corporation and be entitled to
receive his Base Salary until Executive becomes eligible to receive benefits
under Corporation's Group Long Term Disability Insurance Policy (the "Disability
Benefits Date"). All benefits, including disability benefits, to which Executive
is then entitled under Compensation Plans in which Executive is a participant
will be payable as provided in those Compensation Plans. The Agreement will
terminate as of the Disability Benefits Date and Corporation will have no
further obligations to Executive under this Agreement.
5.3 Termination for Cause or Voluntary Termination Without
Good Reason. During the Term of this Agreement, pending the determination by the
Board whether or not Cause exists for termination of Executive's employment
pursuant to the definition of Cause in Section 1, the Board may suspend
Executive or relieve Executive of his duties as an officer, but may not
terminate Executive's employment. Upon such determination that Cause exists,
Corporation may terminate Executive's employment. If during the Term Corporation
terminates Executive's employment for Cause or Executive voluntarily terminates
employment other than for Good Reason, Corporation will pay Executive his Base
Salary through the effective date of such termination. Executive will not be
entitled to any Annual Bonus, or any prorated portion of any Annual Bonus, for
the fiscal year in which the Termination Date occurs. This Agreement will
terminate as of the Termination Date, and Corporation will have no further
obligations to Executive under this Agreement. All accrued benefits to which
Executive is then entitled under Compensation Plans in which he is a participant
will be payable as provided in those Compensation Plans.
5.4 Termination Without Cause or With Good Reason. If
Executive's employment with Corporation is terminated (other than for Disability
or upon Executive's death) during the Term by Corporation without Cause or by
Executive with Good Reason, Corporation will pay Executive the following amounts
("Severance Payments"):
(a) Executive's Base Salary through the Termination Date;
and
(b) An amount of severance pay equal to Executive's Base
Salary.
5.5 No Mitigation. Executive will not be required to mitigate
the amount of any payment provided for in this Section 5 by seeking other
employment or otherwise. However, except in the case of a termination of
Executive without Cause or with Good Reason following a Change in Control of
Corporation, the amount of any payment or related benefit provided for in this
Section 5 will be reduced by any compensation earned or related benefit received
by
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Executive as a result of either employment by another employer or
self-employment after the Termination Date. Executive agrees to provide
Corporation with any information reasonably necessary to determine the amount of
such reduction.
5.6 Noncompetition Following Termination. Executive
acknowledges that the agreements and covenants contained in this Section 5.6 are
essential to protect the value of Corporation's business and assets and that, by
his employment with Corporation and its subsidiaries, Executive will obtain such
knowledge, contacts, know-how, training and experience, and that such knowledge,
contacts, know-how, training and experience could be used to the substantial
advantage of a Competitive Entity and to Corporation's substantial detriment.
Therefore Executive agrees that:
(a) In the event Executive's employment is terminated
(whether by Corporation or by Executive) for any reason,
Executive will not, for a period of one year from the
Termination Date, participate (as an owner, employee, officer,
partner, member, shareholder, director, consultant, or
otherwise) in any Competitive Entity. The benefits payable
under this Agreement, including without limitation
Corporation's obligation to pay Severance Benefits pursuant to
Section 5.4 of this Agreement are in consideration of
Executive's performance of the covenants in this Section 5.6.
(b) Executive acknowledges that this Agreement is being
entered into in connection with the initial employment of
Executive with Corporation. Executive further acknowledges
that he is receiving consideration under this Agreement in
addition to such consideration as to which he would be
entitled in the absence of this Agreement, and he acknowledges
that his agreement to the provisions of this Section 5.6 is a
necessary condition for Corporation to enter into this
Agreement and pay the consideration provided for in this
Agreement.
(c) Executive acknowledges that Corporation's remedy at
law for a breach by him of the provisions of this Section 5.6
will be inadequate. Accordingly, in the event of the breach or
threatened breach by Executive of any provision of this
Section 5.6, Corporation will be entitled to injunctive relief
in addition to any other remedy it may have. If any of the
provisions of, or covenants contained in, this Section 5.6 are
hereafter construed to be invalid or unenforceable in any
jurisdiction, the same will not affect the remainder of the
provisions or the enforceability thereof in any other
jurisdiction, which will be given full effect, without regard
to the invalidity or unenforceability in such other
jurisdiction. If any of the provisions of, or covenants
contained in, this Section 5.6 are held to be unenforceable in
any jurisdiction because of the duration or geographical scope
of such provision or covenant, Executive and Corporation agree
that the court making such determination will have the power
to reduce the duration or geographical scope of such provision
or covenant and that, in its reduced form, such provision or
covenant will be enforceable; provided, however, that the
determination of such court will not affect the enforceability
of this Section 5.6 in any other jurisdiction.
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6. EFFECT OF CHANGE IN CONTROL.
The Severance Payments payable under Section 5.4 of this Agreement are
not conditioned upon a Change in Control of Corporation but are payable upon any
termination described in that Section, whether or not a Change in Control has
occurred. Thus, it is the parties' mutual intention that the Severance Payments
are not to be treated as Total Payments.
7. SUCCESSORS; BINDING EFFECT.
7.1 Corporation. This Agreement will inure to the benefit of, and be
binding upon, any corporate or other successor or assignee of Corporation that
acquires, directly or indirectly, by merger, consolidation or purchase, or
otherwise, all or substantially all the business or assets of Corporation.
Corporation will require any such successor, by an agreement in form and
substance reasonably satisfactory to Executive, expressly to assume and agree to
perform this Agreement in the same manner and to the same extent as Corporation
would be required to perform if no such succession had taken place.
7.2 Executive. This Agreement will inure to the benefit of and be
enforceable by Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees, and legatees. If
Executive should die while any amount would still be payable to Executive
hereunder if Executive had continued to live, all such amounts, unless otherwise
provided herein, will be paid in accordance with the terms of this Agreement to
Executive's devisee, legatee, or other designee or, if there is no such
designee, to Executive's estate.
8. WAIVER AND MODIFICATION.
Any waiver, alteration, or modification of any of the terms of this
Agreement will be valid only if made in writing and signed by the parties to
this Agreement. No waiver by either of the parties of its rights under this
Agreement will be deemed to constitute a waiver with respect to any subsequent
occurrences or transactions hereunder unless the waiver specifically states that
it is to be construed as a continuing waiver.
9. GOVERNING LAW; SEVERABILITY.
The validity, interpretation, construction, and performance of this
Agreement will be governed by and construed in accordance with the laws of the
state of Oregon. Any provision of this Agreement that is prohibited or
unenforceable will be ineffective only to the extent of that prohibition or
unenforceability without invalidating the remaining provisions of this
Agreement.
10. NOTICES.
For the purposes of this Agreement, notices and all communications
provided for in this Agreement must be in writing and will be deemed to have
been given upon the earlier of (i) personal delivery or (ii) three business days
after being mailed by United States registered mail, return receipt requested,
with postage prepaid, addressed to the respective party at the address set forth
below (or to such other address as either party may have furnished to the other
in writing in
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accordance with this Section 10, except that notices of change of
address will be effective only upon receipt):
To Corporation: Sonus Corp.
000 X.X. Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000
Attn: General Counsel
To Executive: Xxxx X. Xxxxxxxx
00000 X.X. 00xx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
11. HEADINGS.
Headings herein are for convenience only, are not a part of this
Agreement, and are not to be used in construing this Agreement.
12. ARBITRATION.
Any dispute or claim that arises out of or that relates to this
Agreement or to the interpretation, breach, or enforcement of this Agreement,
must be resolved by mandatory arbitration in accordance with the then effective
arbitration rules of the American Arbitration Association and any judgment upon
the award rendered pursuant to such arbitration may be entered in any court
having jurisdiction thereof.
13. ATTORNEYS' FEES.
In the event of any suit or action or arbitration proceeding to enforce
or interpret any provision of this Agreement (or which is based on this
Agreement), the prevailing party will be entitled to recover, in addition to
other costs, reasonable attorneys' fees in connection with such suit, action,
arbitration, and in any appeal. The determination of who is the prevailing party
and the amount of reasonable attorneys' fees to be paid to the prevailing party
will be decided by the arbitrator or arbitrators (with respect to attorneys'
fees incurred prior to and during the arbitration proceedings) and by the court
or courts, including any appellate courts, in which the matter is tried, heard,
or decided, including the court which hears any exceptions made to an
arbitration award submitted to it for confirmation as a judgment (with respect
to attorneys' fees incurred in such confirmation proceedings).
14. EFFECT OF TERMINATION OF AGREEMENT.
If this Agreement is terminated, all rights and benefits that have
become vested hereunder prior to termination will remain in full force and
effect, and the termination of the Agreement will not be construed as relieving
any party from the performance of any accrued obligation incurred to the other
under this Agreement.
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15. ENTIRE AGREEMENT.
This Agreement constitutes and embodies the entire understanding and
agreement of the parties hereto relating to the matters addressed in this
Agreement. Except as otherwise provided in this Agreement, there are no other
agreements or understandings, written or oral, in effect between the parties
relating to the matters addressed herein.
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement
effective as of the Effective Date.
CORPORATION: SONUS CORP.
By /s/ Xxxxx X. Xxxxx
-------------------------
Xxxxx X. Xxxxx
President and Chief Operating Officer
EXECUTIVE: /s/ Xxxx X. Xxxxxxxx
-------------------------
Xxxx X. Xxxxxxxx
