EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT (this “Agreement”) is made
and entered as of July 5,
2009 (the “Effective Date”), by
and between Unitek USA, LLC, a Delaware limited liability company (“Unitek”),
and Xxxxxx
Xxxxxx (“Employee”).
WHEREAS,
Unitek desires to continue the employment of Employee in an executive capacity,
and Employee desires to be employed by Unitek in such capacity, under the terms
and pursuant to the conditions set forth herein.
NOW,
THEREFORE, in consideration of the promises, mutual covenants and agreements
hereinafter contained and for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, Unitek and Employee hereby agree
as follows:
1. Definitions. As
used in this Agreement, the words and terms hereinafter defined have the
respective meanings ascribed to them.
(a) “Affiliate” means,
with respect to any Person, any Person who, directly or indirectly, controls, is
controlled by or is under common control with that Person, including such
Person’s subsidiaries; provided that for
purposes of this definition, “control” when used with respect to any Person
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise.
(b) “Board” means the
Board of Directors of Unitek.
(c) “Cause” means the
occurrence of one or more of the following events:
(i) Employee
has (A) committed willful misconduct, gross insubordination, and/or gross
negligence in the performance of his duties to Unitek or any of its Affiliates,
(B) willfully disregarded Unitek’s code of conduct, employee’s manual or any
reasonable and lawful policies applicable to all of its senior management or
(C) willfully failed to comply with the reasonable and lawful directives of
the Board, and, in each case, such action, inaction or failure has had, or could
reasonably be expected to have, a materially detrimental effect on Unitek or any
of its Affiliates as determined in good faith by the Board; or
(ii) Employee
has breached any material term or provision of this Agreement or any other
written agreement between Employee and Unitek or any of its Affiliates, which
breach is not cured by Employee within ten (10) business days after receipt of
written notice of such breach given by Unitek; provided, however, that such
notice and cure period shall not be required for repeated offenses;
or
(iii) the
Board has determined in good faith, after conducting an investigation, that
Employee has committed an act of fraud or theft against Unitek or any of its
Affiliates or any wrongful act or omission intended to result in the personal
enrichment of Employee or of Employee’s spouse, parents or descendants (whether
by blood or adoption and including stepchildren) or the spouses of such
individuals in violation of law or of Employee’s duty of loyalty to Unitek or
any of its Affiliates at the expense, directly or indirectly, of Unitek or any
of its Affiliates, and such act or omission was not disclosed to and
approved by the Board prior to taking such
act or omission; or
(iv) Employee
has been convicted, or entered into a plea of nolo contendere, of any
felony or other offense involving fraud or moral turpitude, or convicted, or
entered into a plea of nolo
contendere, of any other offense that will, in the good faith opinion of
the Board, adversely affect Unitek’s or any of its Affiliates’ prospects or
reputation or Employee’s ability to perform Employee’s obligations or duties to
Unitek or any of its Affiliates.
(d) “Complete Disability”
means the inability of Employee, due to illness or accident or other mental or
physical incapacity, as determined in writing by a licensed physician, to
perform any of his obligations under this Agreement for a period of one hundred
eighty (180) calendar days in the aggregate over a period of three hundred sixty
(360) consecutive calendar days, such “Complete Disability”
to become effective upon the expiration of such one hundred
eightieth (180th) day.
(e)
“Good Reason”
means the occurrence of one or more of the following, subject to Unitek’s right
to cure the circumstances giving rise to such occurrence within twenty (20)
business days of Unitek’s receipt of written notice in accordance with Section
11: (i) assignment to Employee of any duties
inconsistent, in the aggregate, in any material respect with this Agreement;
(ii) a reduction in the Base Salary (as defined below) of Employee (other than a
reduction of base salary of all Unitek senior management due to poor financial
performance of Unitek or any of its Affiliates); (iii) any material breach of
this Agreement by Unitek, which is not cured by Unitek within twenty (20)
business days after receipt of written notice of such breach given by
Employee.
(f) “Confidential
Information” means any information (i) in any form created by Unitek’s
employees, or any employees of its Affiliates (including such information
created by Employee during his course of employment with Unitek), consultants or
agents or otherwise developed or acquired by Unitek or any of its Affiliates,
regardless of the medium or media by which such information is recorded or
communicated, that is known by or in the possession of Employee being neither in
the public domain nor routinely available to third parties, and (ii) if
directly or indirectly disclosed to Unitek’s or any of its Affiliates’
competitors would (A) assist such competitors in competing against Unitek
or any of its Affiliates, (B) diminish or eliminate any competitive advantage
enjoyed by Unitek or any of its Affiliates, (C) cause financial injury or loss
to Unitek or any of its Affiliates or (D) reveal proprietary information or
trade secrets of Unitek or any of its Affiliates; provided, however, the term
“Confidential
Information” does not include any information that (i) is publicly
available or (ii) becomes available without violation of this
Agreement.
(g)
“Person” means
any individual, firm, partnership, joint venture, venture capital fund,
association, trust, trustee, executor, administrator, legal personal
representative, estate, group, corporate body (including a limited liability
company and an unlimited liability company), corporation, unincorporated
association or organization, governmental authority, syndicate or other entity,
whether or not having legal status.
2. Employment. Subject
to the terms and pursuant to the conditions in this Agreement, Unitek hereby
employs Employee during the Term (as defined below) to serve as the Chief Financial
Officer of Unitek USA.
3. Duties of
Employee. Employee shall have such authority and perform such
duties assigned to Employee by the Board and as are generally associated with
the duties and authority of a CFO,
including (i) directing and managing the day to day activities of the Unitek
business and (ii) developing and overseeing implementation of Unitek’s strategic
and operating plans. In the performance of his duties hereunder,
Employee shall report regularly and directly to the CEO of Unitek
USA. Employee shall devote all of his business time and effort to
Unitek and its Affiliates and Employee shall not be required to report to any
other individual.
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4. Acceptance of
Employment. Employee hereby unconditionally accepts the
employment set forth hereunder, under the terms and pursuant to the conditions
set forth in this Agreement. Employee hereby covenants and agrees
that, during the Term, Employee shall not, without the prior written approval of
the Board, become employed by or engaged in any business activity other than
that of Unitek and its Affiliates. Notwithstanding the foregoing,
Employee may manage personal investments or engage in charitable activities that
do not substantially interfere with Employee’s obligations under this
Agreement.
5. Term. Employee’s
employment by Unitek under this Agreement shall commence on the Effective Date
and shall continue for three
(3) years from the Effective Date, subject to termination in accordance
with the provisions of this Agreement. The period of Employee’s
employment hereunder shall be referred to herein as the “Term”. Additionally,
at the expiration of the Term, the Agreement will continue, automatically, on a
year-to-year basis, unless one party gives the other party written notice of
intent not to continue the contract at least one hundred and eighty (180) days
before the expiration of the initial Term or continued Term then in
effect;
6. Compensation to
Employee. For and in complete consideration for Employee’s
full and faithful performance of his duties under this Agreement, Unitek hereby
covenants and agrees to pay to Employee, and Employee hereby covenants and
agrees to accept from Unitek, the following items of compensation:
(a) Base
Salary. During the Term, Unitek shall pay Employee an annual
base salary of $250,000
(the “Base
Salary”), effective as of the Effective Date, payable in equal and
regular installments (but not less often than monthly) in accordance with
Unitek’s then current payroll practices. The Base Salary may be
increased, but shall not be decreased, at any time during the Term in the sole
discretion of the Board.
(b) Incentive
Bonus. Employee shall be eligible to receive an incentive
compensation bonus (a “Bonus”) pursuant to
an incentive bonus program to be implemented by Unitek. Under such
incentive bonus program, Employee shall be eligible to receive a target Bonus of
$200,000 per calendar
year conditioned upon the achievement of annual operational and financial
milestones mutually developed by Unitek and Employee, approved by the Board, and
subject to upward or downward adjustment based upon over or under achievement of
such annual operational and financial milestones. Any such Bonus
shall be payable by Unitek to Employee in accordance with the terms of the
applicable incentive bonus program, which is incorporated
herein. Notwithstanding anything to the contrary herein, any Bonus
shall be payable as promptly as possible following determination or calculation,
but in any event within thirty (30) days following the delivery of audited
financial statements for the prior fiscal year. Any bonus paid in Year One of
employment will be prorated to start date.
(c) Employee Benefit
Plans. During the Term, Employee, if otherwise eligible, shall
be included in any pension plans, retirement plans, company life insurance
plans, medical and/or hospitalization plans, bonus plans, stock option plans
and/or any and all other benefit or incentive plans which may be placed in
effect by Unitek for its senior management. The benefits provided for
in this Section
6(c) shall be subject to Unitek’s policies in effect from time
to time,
which may be amended by Unitek in its sole discretion, and in the case of
insured benefits, to the applicable contract of insurance.
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(d) Options.1 The
undersigned Employee has previously been granted Options pursuant to the
Agreement dated September 30,
2008 which is incorporated herein. Nothing in this Agreement
shall cancel, change, modify, and/or affect the Employee’s entitlement to those
Options.
(e) Expense
Reimbursement. During the Term, Unitek shall either pay
directly or reimburse Employee for Employee’s reasonable and documented expenses
incurred for the benefit of Unitek in accordance with Unitek’s then current
policy regarding expenditures and reimbursement.
(f) Vacations and
Holidays. During the Term and commencing as of the Effective
Date, Employee shall be entitled to annual paid vacation leave in accordance
with Unitek’s standard paid time off policy then in effect for senior
management.
7. Termination. Employee’s
employment with Unitek may be terminated in accordance with the provisions set
forth below.
(a) Death or Disability of
Employee. Employee’s employment with Unitek shall terminate
upon the death or Complete Disability of Employee; provided, however, that in the
event of termination due to death or Complete Disability, (A) Unitek shall pay
to Employee or his estate, custodian, conservator or trustee, as applicable, as
soon as practicable (allowing Unitek a reasonable period of time to calculate
such amounts) any and all of Employee’s salary, benefits and other compensation
earned through the date of such termination of employment and (B) Unitek shall,
subject to execution and delivery by Employee or his estate, custodian,
conservator or trustee, as applicable, of a release in substantially the form
attached hereto as Exhibit A
(with such changes as may reasonably be required by Unitek to reflect
changes in law or the circumstances surrounding Employee’s release, the “Release”), which
Release shall not have been revoked by Employee or his estate, custodian,
conservator or trustee, as applicable, pursuant to the terms thereof (and all
applicable statutory revocation periods have expired), and subject to Employee’s
continued compliance with Section 8 and Section 9, (x) pay to
Employee or his estate, custodian, conservator or trustee, as applicable, an
amount equal to his Base Salary (at the rate then in effect) for no less than a
period of twelve (12) months after the date of such termination of
employment, payable in accordance with Unitek’s then current payroll practices
and (y) assess, reasonably promptly following such termination of
employment and as of the date of such termination, the operational and financial
milestones established for the Bonus for the calendar year in which Employee is
so terminated; and to the extent such operational and financial milestones are
being achieved at the time of such termination, Unitek shall pay Employee or his
estate, custodian, conservator or trustee, as applicable, the applicable
pro-rata portion of such Bonus in equal increments over no less than a twelve
(12) month period after the date of
such termination of employment, payable in accordance with Unitek’s then current
payroll practices.
1 The
terms of each option will be set forth in the applicable Award, but will
include, without limitation, (i) an exercise price of $1.00 per share
(based upon an expected equity cost for HM Capital of $1.00 per share, but is
subject to adjustment based on the final equity cost to HM Capital),
(ii) full vesting upon a change of control (not an IPO), (iii) a $3.00
per share (based on an expected equity cost for HM Capital of $1.00 per share,
but is subject to adjustment based on the final equity cost to HM Capital)
return requirement upon exit for performance options to become exercisable and
(iv) upon Employee’s termination or resignation from Unitek for any reason,
Employee will have 30 days to exercise any vested and exercisable
options.
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(b) Cause or Without Good
Reason. Employee’s employment with Unitek shall terminate upon
(i) Unitek giving written notice to Employee of the termination of such
employment for Cause or (ii) Employee giving written notice to Unitek of the
termination of such employment without Good Reason; provided, however, that in the
event of termination for Cause or without Good Reason, Unitek shall pay to
Employee as soon as practicable (allowing Unitek a reasonable period of time to
calculate such amounts) any and all salary, benefits and other compensation
earned through the date of such termination of employment. Employee
shall not be entitled to any additional compensation other than the compensation
aforementioned in this paragraph.
(c) Expiration of
Agreement. Employee’s employment with Unitek shall terminate upon
expiration of this Agreement; provided, however, that in the
event of termination for expiration of the Agreement, Unitek shall pay to
Employee as soon as practicable (allowing Unitek a reasonable period of time to
calculate such amounts) any and all salary, benefits and other compensation
earned through the date of such termination of employment. For
termination upon expiration of the Agreement to occur, the parties must comply
with paragraph 5 of this Agreement.
(d) Without Cause; For Good
Reason.
(i) Without
Cause. Employee’s employment with Unitek shall terminate upon
Unitek giving written notice to Employee of the termination of such employment
without Cause; provided, however, in the event
of termination without Cause, (A) Unitek shall pay to Employee as soon as
practicable (allowing Unitek a reasonable period of time to calculate such
amounts) any and all of Employee’s salary, benefits and other compensation
earned through the date of such termination of employment and (B) Unitek shall,
subject to Employee’s execution and delivery of a release in substantially the
form attached hereto as Exhibit A
(with such changes as may reasonably be required by Unitek to reflect
changes in law or the circumstances surrounding Employee’s release, the “Release”), which
Release shall not have been revoked by Employee pursuant to the terms thereof
(and all applicable statutory revocation periods have expired), and subject to
Employee’s continued compliance with Section 8 and Section 9, (x) pay to
Employee an amount equal to his Base Salary (at the rate then in effect) for no
less than a period of twenty-four (24) months
after the date of such termination of employment, payable to Employee in
accordance with Unitek’s then current payroll practices and (y) assess,
reasonably promptly following such termination of employment and as of the date
of such termination, the operational and financial milestones established for
the Bonus for the calendar year in which Employee is so terminated; and to the
extent such operational and financial milestones are being achieved at the time
of such termination, Unitek shall pay Employee the applicable pro-rata portion
of such Bonus in equal increments over no less than a twelve (12) month period
after the date of such termination of employment, payable to Employee in
accordance with Unitek’s then current payroll practices.
(ii) For Good
Reason. Employee’s employment with Unitek shall terminate upon
Employee giving written notice to Unitek of the termination of such employment
for Good Reason (so long as such notice is given within thirty (30) days of the
occurrence of such Good Reason); provided, however, in the event
of termination for Good Reason, (A) Unitek shall pay to Employee as soon as
practicable (allowing Unitek a reasonable period of time to calculate such
amounts) any and all of Employee’s salary, benefits and other compensation
earned through the date
of such termination of employment and (B) Unitek shall, subject to Employee’s
execution and delivery of the Release, which Release shall not have been revoked
by Employee pursuant to the terms thereof (and all applicable statutory
revocation periods have expired), and subject to Employee’s continued compliance
with Section 8
and Section 9,
(x) pay to Employee an amount equal to his Base Salary (at the rate then in
effect) for no less than a period of twenty-four (24) months after
the date of such termination of employment, payable to Employee in accordance
with Unitek’s then current payroll practices and (y) assess, reasonably
promptly following such termination of employment and as of the date of such
termination, the operational and financial milestones established for the Bonus
for the calendar year in which Employee is so terminated; and to the extent such
operational and financial milestones are being achieved at the time of such
termination, Unitek shall pay Employee the applicable pro-rata portion of such
Bonus in equal increments over no less than a twelve (12) month period after the
date of such termination of employment, payable to Employee in accordance with
Unitek’s then current payroll practices.
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(e) COBRA. If
termination of the Employee occurs pursuant to Paragraph 7(a), (c), and/or (d),
the Company will pay the expense of COBRA for the Employee to maintain the
Employee’s benefits eligible to continue under COBRA, at the same level as the
date of termination, for a period of twelve (12) months.
(f) Full
Satisfaction. Employee acknowledges that the payment by Unitek
of the amounts specified in this Section 7 shall
constitute full and final satisfaction of any entitlement that Employee may have
arising from, or in any way related to, Employee’s employment hereunder,
including the termination of such employment; provided, however, that
Employee’s rights with respect to the Award and the options granted thereunder
shall be governed by the terms and conditions set forth in the Unitek Holdings,
Inc. Equity Incentive Plan and such Award.
8. Confidentiality.
(a) Employee
hereby warrants, covenants and agrees that, without the prior express written
approval of Unitek, Employee shall hold in the strictest confidence and shall
not disclose to any Person any Confidential Information. The
provisions of this Section 8 shall
not prohibit the disclosure of Confidential Information by Employee to the
extent required by any governmental authority or by applicable
law. If Employee receives such a demand for disclosure: (i) Employee
shall give written notice thereof to Unitek as promptly as is reasonably
practicable after he learns of any such demand, (ii) Employee agrees to
cooperate with Unitek to prevent or limit such disclosure and
(iii) Employee agrees to only disclose that amount of Confidential
Information that is expressly required to be disclosed. The warranty,
covenant and agreement set forth in this Section 8 shall not
expire and shall survive this Agreement and be binding upon Employee without
regard to the passage of time or other events.
(b) The
violation of any of the terms of this Section 8 by
Employee would cause irreparable injury to Unitek, the amount of which will be
impossible to estimate or determine and which cannot be adequately compensated
by monetary damages. Accordingly, the remedy at law for any breach of
this Section 8 will
be inadequate. Therefore, notwithstanding Section 20,
Unitek will be entitled to a temporary and permanent injunction, restraining
order or any other equitable relief from any court of competent jurisdiction in
the event of any breach or threatened breach of this Section 8 by
Employee without the necessity of proving actual damage or posting of any bond
whatsoever.
9. Restrictions on Activities
of Employee.
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(a) Acknowledgments. Employee
and Unitek acknowledge and agree that:
(i) Employee
is being employed hereunder in a key capacity with Unitek and that Unitek is
engaged in a highly competitive business and that the success of Unitek’s
business in the marketplace depends upon its goodwill and reputation for quality
and dependability.
(ii) Employee
will have access to Confidential Information in performing his duties for Unitek
under this Agreement.
(iii) Reasonable
limits may be placed on Employee’s ability to compete against Unitek and its
Affiliates that are engaged in the Business (as defined below) to the extent
that they protect and preserve the legitimate business interests and goodwill of
Unitek and/or its Affiliates that are engaged in the Business, and that the
limits contained herein are in consideration for and as an inducement for, among
other things, Employee’s right to receive the options to purchase common stock
of Holdings set forth in Section 6(d).
(iv) The
covenants and undertakings by Employee contained in this Section 9 relate
to matters which are of a special, unique and extraordinary character, and a
violation of any of the terms of this Section 9 will
cause irreparable injury to Unitek, the amount of which will be impossible to
estimate or determine and which cannot be adequately compensated by monetary
damages. Accordingly, the remedy at law for any breach of this Section 9 will
be inadequate. Therefore, notwithstanding Section 20,
Unitek will be entitled to a temporary and permanent injunction, restraining
order or any other equitable relief from any court of competent jurisdiction in
the event of any breach or threatened breach of this Section 9 by
Employee without the necessity of proving actual damage or posting of any bond
whatsoever. Employee consents to jurisdiction and venue in the
Federal or State courts of Xxxxxxxxxx County, Pennsylvania for such equitable
relief.
(v) The
rights and remedies provided by this Section 9 are
cumulative and in addition to any other rights and remedies which Unitek may
have hereunder or at law or in equity. The parties hereto agree that,
if any arbitrator or court of competent jurisdiction determines that a specified
time period, a specified geographical area, a specified business limitation or
any other relevant feature of this Section 9 is
unreasonable, arbitrary or against public policy, then a lesser period of time,
geographical area, business limitation or other relevant feature which is
determined by such arbitrator or court to be reasonable, not arbitrary and not
against public policy may be enforced against the applicable party.
(b) Non-Competition
Restrictions. During the Non-Competition Period (as defined
below), Employee will not, anywhere in the Territory (as defined below),
directly or indirectly, alone or as principal, agent, employee, officer,
director, trustee, employer, consultant, investor or partner, enter the employ
of, or render services to, or own any stock or any other ownership interest in,
or make any financial investment in, any person, business or entity which is a
Competitor (as defined below) to Unitek and/or it Affilaites; provided, however, that the
ownership of not more than two percent (2%) of the outstanding securities of any
class of securities listed on a national exchange or inter-dealer quotation
system shall not constitute a violation of this Section
9(b). For purposes of this Agreement, a business or entity
shall be considered a “Competitor” as of any
point in time during the Non-Competition Period if it engages in the business of
providing outsourced services to the telecommunications, satellite, broadband
cable, cellular/wireless tower, utility, power, management services, government,
security or home services industries, or that otherwise competes with Unitek or
any of its Affiliates
within the Territory (the “Business”). For
purposes of this Agreement, the “Non-Competition
Period” shall mean the period commencing on the Effective Date and ending
twenty-four (24) months
after the date Employee’s employment is terminated. For purposes of
this Agreement, “Territory” means
anywhere in the United States of America and Canada.
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(c) Non-Solicitation
Restrictions. During the Non-Competition Period, Employee will
not, directly or indirectly, (i) solicit the employment or services of any
individual who upon termination of Employee’s employment with Unitek or within
twelve (12) months prior thereto, was known by Employee to be
employed by Unitek or any of its Affiliates (each such individual, a “Unitek Affiliate”),
(ii) hire any Unitek Affiliate or (iii) solicit any customer or supplier of
Unitek or any of its Affiliates to terminate its arrangement with Unitek or any
of its Affiliates, otherwise change its relationship with Unitek or any of its
Affiliates, or establish any relationship, directly or indirectly, with Employee
for any business purpose that is competitive with the Business.
10. Deductions and
Withholdings. All payments made to Employee pursuant to this
Agreement shall be subject to all applicable statutory deductions and
withholding amounts.
11. Notices. Any
notices or other communications required or permitted hereunder shall be in
writing, and shall be sufficiently given if made by hand delivery, by overnight
courier or by registered or certified mail, postage prepaid, return receipt
requested, addressed as follows (or at such other address as may be substituted
by notice given as herein provided):
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to Unitek:
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Unitek
USA, LLC
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c/o
HM Capital Partners LLC
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000
Xxxxxxxx Xxxxx, Xxxxx 0000
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Xxxxxx,
Xxxxx 00000
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Facsimile:
(000) 000-0000
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Attention: Xxxxx
Xxxxxxx
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with copies to:
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Weil,
Gotshal & Xxxxxx LLP
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000
Xxxxxxxx Xxxxx, Xxxxx 000
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Xxxxxx,
Xxxxx 00000
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Facsimile:
(000) 000-0000
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Attention:
S. Xxxxx Xxxxx
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to Employee:
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[Name]
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[Address]
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[Address]
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with copies to:
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[Name]
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[Address]
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[Address]
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Attention:
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Facsimile:
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Any
notice or communication hereunder shall be deemed to have been given or made as
of the date so delivered if delivered by hand or overnight courier and five (5)
calendar days after mailing if sent by registered
or certified mail (except that a notice of change of address shall not be deemed
to have been given until actually received by the addressee).
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12. Governing
Law. This Agreement shall be governed by and interpreted in
accordance with the laws of Pennsylvania applicable therein, without giving
effect to the principles of conflict of laws thereof.
13. Assignment. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns; provided, however, that
Employee shall not assign this Agreement or delegate his duties hereunder
without the prior written consent of Unitek. Any purported assignment
in violation of this Section 13 shall be
null and void and of no force or effect.
14. Amendment or
Modification. This Agreement may not be amended, modified,
changed or altered except by a writing signed by the Chief Executive Officer of
Unitek and Employee.
15. Waiver. None
of the terms of this Agreement, including this Section 15, or any
term, right or remedy hereunder shall be deemed waived unless such waiver is in
writing and signed by the party to be charged therewith and in no event by
reason of any failure to assert or delay in asserting any such term, right or
remedy or similar term, right or remedy hereunder.
16. Interpretation. Titles
of sections are for convenience only and are not to be considered a part of this
Agreement. Whenever the terms “hereof,” “hereby,” “herein,” or words
of similar import are used in this Agreement they shall be construed as referred
to this Agreement in its entirety rather than to a particular section or
provision, unless the context specifically indicates to the
contrary. Any reference to a particular “Section” or “paragraph”
shall be construed as referred to the indicated section or paragraph of this
Agreement unless the context indicates to the contrary. The use of
the term “including” herein shall be construed as meaning “including, without
limitation.” All references to “$” shall be references to legal
currency of the United States of America.
17. Severability. If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated and the parties shall negotiate in good faith to modify this
Agreement to preserve each party’s anticipated benefits under this
Agreement.
18. Counterparts. This
Agreement may be executed in two or more counterparts, each of which will be
deemed an original, but all of which together shall constitute one and the same
agreement.
19. Complete
Agreement. This Agreement constitutes the entire agreement and
supersedes all other prior agreements, term sheets and undertakings, both
written and oral, among the parties with respect to the subject matter hereof,
including, without limitation, that certain Employment Agreement, dated as of
September 30, 2008, by
and between Unitek and Employee. However, nothing in this paragraph shall affect
the grant of Options to the Employee pursuant to the Agreement dated September 30, 2008 (see,
Paragraph 6(d) above).
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20. Confidential Arbitration of
Disputes. Except as otherwise provided in Section 8 and
Section 9 of this Agreement, any controversy or claim arising out of or
relating to this Agreement or the breach thereof, relating to the Release or
arising out of Employee’s employment or the termination of that employment
(including any claims of unlawful employment discrimination whether based on age
or otherwise) shall, to the fullest extent permitted by law, be resolved by
binding confidential arbitration, under the auspices of the American Arbitration
Association (“AAA”) in
Philadelphia, Pennsylvania, before
three neutral and independent arbitrators licensed to practice law and in
accordance with the Commercial Rules of the AAA. In the event that
any person or entity other than Employee or Unitek is a party with regard to any
such controversy or claim, such controversy or claim with such third party shall
be submitted to confidential arbitration subject to such other person or
entity’s agreement. However, with the exception of Section 8 and
Section 9,
all disputes between Unitek and Employee shall be arbitrated. Any
award rendered in any arbitration shall be final and conclusive upon the parties
to the arbitration, and the judgment thereon may be entered in the highest court
of the forum (state or federal) having jurisdiction over the issues addressed in
the arbitration. This Section 20 shall be
specifically enforceable. Nothing in this Section 20 shall
prevent Unitek from seeking injunctive or equitable relief from any court of
appropriate jurisdiction as provided in Section 8 and
Section 9.
21. Employee
Representation. Employee acknowledges that he has negotiated and entered
into this Agreement with the full advice and representation of legal counsel
specifically retained for such purpose.
[The
Remainder of This Page Is Intentionally Left Blank.]
- 10
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IN
WITNESS WHEREOF AND INTENDING TO BE LEGALLY BOUND THEREBY, the parties hereto
have executed and delivered this Agreement as of the year and date first above
written.
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UNITEK:
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Unitek
USA, LLC
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By:
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/s/ C. Xxxxx Xxxxx
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Name: C. Xxxxx
Xxxxx
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Title:
Chief Executive Officer
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EMPLOYEE:
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/s/ Xxxxxx Xxxxxx
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Xxxxxx
Xxxxxx
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EXHIBIT
A
FORM OF
RELEASE
This
Release (this “Release”) dated as of
________, 20__ (the “Execution Date”), is
made by and between Unitek USA, LLC, a Delaware limited liability company
(“Unitek”), and
_________________ (“Employee”).
WHEREAS,
the parties hereto entered in that certain Employment Agreement, executed
_____________, 2008 (the “Employment
Agreement”);
WHEREAS,
Employee’s employment with Unitek has been terminated in a manner described in
Section 7(c) of the Employment Agreement;
WHEREAS,
pursuant to Section 7(c) of the Employment Agreement, it is a condition
precedent to Unitek’s obligation to make the payments under clauses (i) and (ii)
of Section 7(c) that Employee executes and delivers this Release.
NOW
THEREFORE, for good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. Termination. Each
of the parties agrees that, except for the parties respective rights and
obligations pursuant to Sections 8, 9 and 20 of the Employment Agreement (which
shall survive in accordance with their respective terms), the Employment
Agreement is terminated effective as of, and shall be of no further force and
effect effective as of, ____________, ______.
2. Release. Employee
ON BEHALF OF HIMSELF, HIS SPOUSE, ATTORNEYS, HEIRS, EXECUTORS, ADMINISTRATORS,
AGENTS, ASSIGNS, AND ANY TRUSTS, PARTNERSHIPS AND OTHER ENTITIES UNDER HIS
CONTROL (TOGETHER, THE “EMPLOYEE PARTIES”),
HEREBY GENERALLY RELEASES AND FOREVER DISCHARGES each of Unitek, [benefits plan
administrator], their respective employees and affiliates, and their respective
predecessors, successors and assigns and their respective past and present
stockholders, members, directors, officers, employees, agents, representatives,
principals, insurers and attorneys (together the “Employer Parties”)
from any and all claims, demands, liabilities, suits, damages, losses, expenses,
attorneys’ fees, obligations or causes of action, KNOWN OR UNKNOWN of any kind
and every nature whatsoever, and WHETHER OR NOT ACCRUED OR MATURED, that any of
them have or may have, arising out of or relating to any transaction, dealing,
relationship, conduct, act or omission, OR ANY OTHER MATTERS OR THINGS OCCURRING
OR EXISTING AT ANY TIME PRIOR TO AND INCLUDING THE EXECUTION DATE (including,
but not limited to, any claim against the Employer Parties based on, relating to
or arising under wrongful discharge, breach of contract (whether oral or
written), tort, fraud (including fraudulent inducement into this Release),
defamation, negligence, promissory estoppel, retaliatory discharge, the Age
Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq., as amended, Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as amended
(including the Civil Rights Act of 1991), the Americans with Disabilities Act of
1990, 42 U.S.C. §§ 12101, et
seq., as amended, Employee Retirement Income Security Act of 1974,
(“ERISA”), 29
U.S.C. §§ 1001 et seq.,
as amended, the Family and Medical Leave Act (“FMLA”), 29 U.S.C.
§§ 2601 et seq.,
as amended, the Labor Management Relations Act, 29 U.S.C. §§ 141 et seq., as amended, the
Occupational Safety and Health Act (“OSHA”),
29 U.S.C.
§§ 651 et seq., as
amended, the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§
1961 et seq., as
amended, the Sarbanes Oxley Act of 2002, the Sabine Pilot Doctrine and/or the
American Jobs Creation Act of 2004, or any other federal, state or local law
relating to employment or discrimination in employment, including, without
limitation, the Texas Commission on Human Rights Act, the Texas Worker’s
Compensation Act and the Texas Payday Act) arising out of or relating to
Employee’s employment by Unitek or the Employment Agreement or his services as
an officer or employee of Unitek, or otherwise relating to the termination of
such employment or the Employment Agreement (“Released Claims”);
provided, however, that such
general release will not limit or release the Employer Parties from their
respective obligations (i) under this Release, or (ii) under the surviving
portions of the Employment Agreement as specified in Section 1
hereof. Employee, ON BEHALF OF HIMSELF AND EMPLOYEE PARTIES, hereby
covenants forever not to assert, file, prosecute, maintain, commence, institute
(or sponsor or purposely facilitate any person in connection with the
foregoing), any complaint or lawsuit or any legal, equitable or administrative
proceeding of any nature, against any of the Employer Parties in connection with
any matter released in this Section 2, and
represents and warrants that no other person or entity has initiated or, to the
extent within his control, will initiate any such proceeding on his or their
behalf. For avoidance of doubt, this Release covers both claims that
Employee knows about and those he may not know about.
3. Acknowledgement of Waiver of
Claims under ADEA. Employee acknowledges that, pursuant to
Section 2
hereof, he is waiving and releasing any rights he may have against the Employer
Parties under the Age Discrimination in Employment Act of 1967 and that this
waiver and release is knowing and voluntary. Employee acknowledges
that the consideration given for this waiver and release is in addition to
anything of value to which Employee was already entitled. Employee
further acknowledges that (a) he has had at least twenty-one (21) days to
consider and review the terms of this Release or has knowingly and voluntarily
waived his right to do so; (b) he has been advised by the Employer Parties to
consult with his attorney regarding the terms of this Release; (c) any and all
questions regarding the terms of this Release have been asked and answered to
his complete satisfaction; (d) he has read this Release and fully understands
its terms and their import; and (e) the consideration provided for herein is
good and valuable. Employee understands that he may revoke this
Release, in writing within seven (7) days of the Execution Date, and this
Release shall not become effective and enforceable until such period has expired
(the “Revocation
Period”). In the event that Employee revokes this Release
prior to the expiration of the Revocation Period, this Release shall be null and
void ab initio, and
Employee acknowledges and agrees that he will not receive the benefits provided
by this Release or in the Employment Agreement (including payment under Section
7(c) of the Employment Agreement) if he revokes this Release.
4. Acknowledgments. Employee
acknowledges that he understands the terms of this Release, that he has executed
this Release knowingly and voluntarily and that, before entering into this
Release, he has had the opportunity to consult with any attorney or other
advisor of his choice, and has done so, and has not relied in connection
herewith on legal counsel for Unitek. Employee acknowledges that, in
consideration for the covenants and releases contained herein, he will receive
the payments as described in Section 7(c) of the Employment Agreement, and that
he would not receive such payment without the execution of this
Release.
5. Modification. This
Release may not be modified or amended except in writing signed by the
parties. No term or condition of this Release will be deemed to have
been waived except in writing by the party charged with waiver. A
waiver shall operate only as to the specific term or
condition waived and will not constitute a waiver for the future or act on
anything other than that which is specifically waived.
6. Counterparts. This
Release may be executed in any number of counterparts, each of which shall be an
original, but all of which, together shall constitute one and the same
instrument. Any counterpart of this Release that has attached to it
separate signature pages that together contain the signature of all parties
hereto shall for all purposes be deemed a fully executed
original. Facsimile signatures shall constitute original
signatures.
7. Successors and
Assigns. All the terms and provisions of this Release shall be
binding upon and inure to the benefit of the parties hereto and to their
respective successors and permitted assigns. Neither this Release nor
any rights or obligations hereunder may be assigned by Employee, other than by
will or the laws of descent or distribution.
8. Severability. All
provisions of this Release are intended to be severable. In the event
any provision or restriction contained herein is held to be invalid or
unenforceable in any respect, in whole or in part, such finding shall in no way
affect the validity or enforceability of any other provision of this
Release. The parties hereto further agree that any such invalid or
unenforceable provision shall be deemed modified so that it shall be enforced to
the greatest extent permissible under law, and to the extent that any court or
arbitrator of competent jurisdiction determines any restriction herein to be
unreasonable in any respect, such court or arbitrator may limit this Release to
render it reasonable in the light of the circumstances in which it was entered
into and specifically enforce this Release as limited.
9. Governing
Law. This Release shall be governed by and construed in
accordance with the laws of the State of Texas without reference to principles
of conflict of laws.
10. Construction. The
parties agree that this Release was negotiated by the parties and shall not be
construed against any party.
[The
Remainder of This Page Is Intentionally Left Blank.]
IN WITNESS WHEREOF, the
parties have executed this Release as of the day and year first above
written.
UNITEK:
Unitek
USA, LLC
By:
Name:
Title:
Accepted
and Agreed to:
I
ACKNOWLEDGE THAT I HAVE CAREFULLY READ THE FOREGOING RELEASE, THAT I UNDERSTAND
ALL OF ITS TERMS, AND THAT I AM ENTERING INTO IT VOLUNTARILY. I
FURTHER ACKNOWLEDGE THAT I AM AWARE OF MY RIGHTS TO REVIEW AND CONSIDER THIS
RELEASE FOR 21 DAYS AND TO CONSULT WITH AN ATTORNEY ABOUT IT, AND STATE THAT
BEFORE SIGNING THIS RELEASE, I HAVE EXERCISED THESE RIGHTS TO THE FULL EXTENT
THAT I DESIRED.
__________________________
EMPLOYEE
Date
Signed:
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STATE
OF ____________
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)
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)
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COUNTY
OF __________
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)
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On this
_____ day of ___________, 20__, personally appeared before me, a Notary Public,
EMPLOYEE, known (or proved) to me to be the person whose name is subscribed to
the above instrument who acknowledged that EMPLOYEE executed the
instrument.
___________________________________
Expiration:
