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EXHIBIT 10.2
EMPLOYMENT AND NON-COMPETE AGREEMENT
THIS AGREEMENT entered into as of the 15th day of April, 1999, by and
between SONUS COMMUNICATIONS, INC., a Virginia corporation ("Employer") and NANA
MARANELI ("Employee").
WHEREAS, Employer desires the Employee's employment with Employer and the
Employee wishes to accept such employment, upon the terms and conditions set
forth in this Agreement; and
NOW, THEREFORE, in consideration of the above premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1.
DEFINITIONS
Agreement means this Employment Agreement, as amended from time to time.
Affiliate has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act of 1934, as amended.
Compensation means Salary and Employee Benefits and other compensation
paid or to be paid hereunder.
Board of Directors means the board of directors of Employer.
Confidential Information means (i) any and all trade secrets and other
confidential or proprietary information (whether or not amounting to a trade
secret or confidential information) concerning the business and affairs of
Employer and its Affiliates and including, without limitation, product
specifications, data, know-how, formulae, compositions, processes, designs,
sketches, photographs, graphs, drawings, samples, inventions and ideas, past,
current, and planned research and development, current and planned manufacturing
or distribution methods and processes, customer lists, current and anticipated
customer requirements, price lists, market studies, business plans, computer
software and programs (including object code and source code), computer software
and database technologies, systems, structures, and architectures (and related
formulae, compositions, processes, improvements, devices, know-how, inventions,
discoveries, concepts, ideas, designs, methods and information, and any other
information, however documented), that is a trade secret within the meaning of
any applicable state trade secret law; (ii) information concerning the business
and affairs of Employer and its Affiliates (which includes historical financial
statements, financial projections and budgets, historical and projected sales,
capital spending budgets and plans, the names and backgrounds of key personnel,
personnel training and techniques and materials, however documented; and (iii)
notes, analysis, compilations, studies, summaries, and other material prepared
by or for Employer containing or based on, in whole or in part, any information
included in the foregoing.
Disability has the meaning set forth in SECTION 6.2.
Employee Benefits has the meaning set forth in SECTION 3.1(b).
Employment Period means the term of Employee's employment under this
Agreement.
"For Cause" means (i) Employee's incompetence, negligence,
insubordination, misconduct in office, or breach of any representation,
warranty, covenant or other obligation or term of this Agreement including,
without limitation, the non-competition, confidentiality and non-solicitation
provisions contained herein; provided, however, that, prior to termination under
this clause (i), Employer shall specify in reasonable detail the incompetence,
gross negligence, misconduct or breach in a written notice to Employee and, in
the event of a breach by Employee of a representation, warranty, covenant or
other obligation or term of this Agreement, shall, before terminating Employee,
provide Employee with 5 days to cure such breach to Employer's satisfaction;
(ii) Employee's conviction of a crime involving a felony, fraud, embezzlement or
the like; habitual insobriety; use of a controlled substance; or
misappropriation of funds of Employer or the taking by Employee of any improper
personal benefit; (iii) Employee's continued failure (on two or
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more occasions) to follow any reasonable policy of Employer to which similarly
situated Employees are subject, after notice of such policy; (iv) upon
Employer's reasonable determination that Employee's continuation in his position
may be expected to result in serious harm or damage, or the material risk
thereof, to the assets, business or worth of Employer; or (v) the appropriation
(or attempted appropriation) of a material business opportunity of Employer.
For Good Reason has the meaning set forth in SECTION 6.3.
Person means any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, or governmental body.
Post-Employment Period means (i) the period beginning on the date on
which the Employment Period ends and ending on the first anniversary of such
date; provided, however, that if the Employment Period ends For Good Reason,
then there shall be no Post-Employment Period.
Proprietary Items has the meaning set forth in SECTION 7.1(d).
Salary has the meaning set forth in SECTION 3.1(a).
Term has the meaning set forth in SECTION 2.2 below.
ARTICLE 2.
EMPLOYMENT TERMS AND DUTIES
2.1 Employment. Employer hereby employs Employee, and Employee hereby
accepts employment by Employer, upon the terms and conditions set forth in this
Agreement.
2.2 Term. Subject to the provisions of ARTICLE 6, the term of
Employee's employment under this Agreement will be three years, beginning on the
date hereof and ending on April 15, 2002, subject to one-year renewal terms upon
mutual agreement of the parties (the "Term").
2.3 Duties. Employee will have such duties as are assigned or
delegated to Employee by the Board of Directors which Employee acknowledges
shall include, without limitation, ____________________________________ and
other activities incident to Employee's position as Executive Vice President of
Employer. Employee will serve as the Executive Vice President and Chairman of
the Employer and of Sonus Communication Holdings, Inc., a Delaware corporation
("Holdings"), during the term. Employee will devote his entire business time,
attention, skill, and energy exclusively to the business of Employer, will use
his best efforts to promote the success of Employer's business, and will
cooperate fully with the Board of Directors in the advancement of the best
interests of Employer. Nothing in this SECTION 2.3, however, will prevent
Employee from engaging in additional activities in connection with personal
investments, business and community affairs that are not inconsistent with
Employee's duties under this Agreement.
2.4 Service on Board of Directors. Employee shall, subject to earlier
removal by the shareholders, serve on the Board of Directors of Employer and
Sonus Communication Holdings, Inc. until the third anniversary of this
Agreement, without additional compensation except for reimbursement of
reasonable expenses associated with such service. Removal from the Board of
Directors by shareholders prior to the third anniversary of this agreement shall
not give rise to any claim or other liability of or against Employer under this
Agreement.
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ARTICLE 3.
COMPENSATION
3.1 Basic Compensation.
(a) Base Salary. Beginning on April 15, 2000, Employee will be paid an
annual salary commensurate with that paid to similarly situated members of
senior management of Employer, as mutually agreed upon by Employer and Employee
prior to April 15, 2000; provided, however, that such salary shall be not less
than $84,000 per annum, and shall be paid in accordance with Employer's usual
compensation schedule and practices, but not less frequently than monthly,
during the Term. Prior to April 15, 2000, Employee shall not receive a salary or
other compensation hereunder, except as expressly provided herein. The Salary
will be reviewed by the Board of Directors from time to time, and may be
adjusted upward or downward in the sole discretion of the Board of Directors,
but in no event will the Salary be less than $84,000 per year.
(b) Employee Benefits. During the Employment Period, Employee will be
permitted to participate in such pension, health, profit sharing, savings and
retirement and other employee benefit plans, practices, policies and programs
applicable generally to similarly situated senior management employees of
Employer, if any (collectively, the "Employee Benefits"); provided, however,
that until April 15, 2000, Employer shall not be required to pay any portion
thereof or make any contributions thereto with respect to Employees
participation in such plans and programs.
ARTICLE 4.
FACILITIES AND EXPENSES
For the Employment Period, Employee shall be provided office and
conference room space, furniture, fixtures, miscellaneous office equipment
(including phones, faxes, computers, and copy machines). Employee shall be
entitled to reimbursement of reasonable expenses actually incurred by the
Employee in connection with Employee's pursuit of his duties under this
Agreement, provided, however, that Employee shall provide the Employer with all
documentation thereof reasonably requested by it.
ARTICLE 5.
VACATIONS AND HOLIDAYS
Employee will be entitled to three (3) weeks' paid vacation during each
year of the Term of this Agreement, in accordance with the vacation policies of
Employer in effect for its senior executive officers from time to time. Employee
will also be entitled to the paid holidays and other paid leave set forth in
Employee's policies. Vacation requests shall be cleared by the Board of
Directors. Vacation days and holidays during any Fiscal Year that are not used
by Employee during such Fiscal Year may not be used in any subsequent Fiscal
Year.
ARTICLE 6.
TERMINATION
6.1 Events of Termination. Except as otherwise provided in this
ARTICLE 6, the Employment Period, Employee's Compensation, and any and all other
rights of Employee under this Agreement or otherwise as an employee of Employer
will terminate:
(a) immediately upon the death of Employee;
(b) upon the Disability of Employee immediately upon notice from
either party to the other;
(c) immediately upon a termination of the Employment Period by
Employer For Cause, or
(d) upon a termination of the Employment Period by Employee, upon not
less than thirty days' prior notice from Employee to Employer.
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6.2 Definition of Disability. For purposes of SECTION 6.1, Employee
will be deemed to have a "Disability" if, for physical or mental reasons,
Employee is unable to perform Employee's duties under this Agreement for one
hundred twenty (120) consecutive days, or one hundred eighty (180) days during
any twelve (12) month period, as determined in accordance with this SECTION 6.2.
The Disability of Employee will be determined by a medical doctor selected by
written agreement of Employer and Employee upon the request of either party by
notice to the other. If Employer and Employee cannot agree on the selection of a
medical doctor, each of them will select a medical doctor and the two medical
doctors will select a third medical doctor who will determine whether Employee
has a Disability. The determination of the medical doctor selected under this
SECTION 6.2 will be binding on both parties. Employee must submit to a
reasonable number of examinations by the medical doctor making the determination
of Disability under this SECTION 6.2, and Employee hereby authorizes the
disclosure and release to Employer of such determination and all supporting
medical records. If Employee is not legally competent, Employee's legal guardian
or duly authorized attorney-in-fact will act in Employee's stead, under this
SECTION 6.2, for the purposes of submitting Employee to the examinations, and
providing the authorization of disclosure, required under this SECTION 6.2.
6.3 Definition of For Good Reason. For purposes of this Agreement, the
phrase "For Good Reason" means Employer's material and continuing breach of this
Agreement.
6.4 Benefits. Except as otherwise provided in this Agreement,
Employee's accrual of, or participation in plans providing for, the Benefits
will cease at the effective date of the termination of the Employment Period,
and Employee will be entitled to accrued benefits pursuant to such plans only as
provided in such plans. Employee will receive, as his termination pay, any
payment or other compensation for any vacation, holiday, sick leave, or other
leave unused on the date the notice of termination is given under this
Agreement.
ARTICLE 7.
AGREEMENTS OF EMPLOYEE
In consideration of the compensation and benefits to be paid or provided
to Employee by Employer under this Agreement, Employee covenants as follows:
7.1 Confidentiality.
(a) Subject to SECTION 7.1(b), Employee agrees and acknowledges that
through the nature of his work, he will have access to and will acquire
information and knowledge concerning the business and operations of Employer and
its Affiliates including, without limitation, the Confidential Information.
Employee acknowledges that all such Confidential Information is the property of
Employer and its Affiliates solely and constitutes valuable, proprietary and
confidential information of Employer and its Affiliates; that the disclosure
thereof would cause substantial loss to the goodwill of Employer and its
Affiliates; that disclosure thereof to Employee is being made only because of
the position of trust and confidence which he will occupy and because of his
agreement to the restrictions herein contained. Employee shall not, at any time,
divulge, disseminate, disclose or communicate to any Person any Confidential
Information, which information Employee shall hold during such period in trust
in a fiduciary capacity for the sole benefit of Employer, its Affiliates, and
their successors and assigns.
(b) None of the foregoing obligations and restrictions applies to any
part of the Confidential Information that Employee demonstrates (i) was or
became generally available to the public other than as a result of a disclosure
by Employee; (ii) is information that has been explicitly approved for public
release by Employer or an Affiliate thereof; (iii) is disclosed pursuant to a
valid and enforceable subpoena of a court or governmental agency of competent
jurisdiction, provided that Employee shall first have given Employer reasonable
opportunity to seek a confidentiality order or other confidential treatment of
such Confidential Information; (iv) is disclosed to third parties by Employer
without restrictions as to confidentiality; or (v) is received from a third
party whose disclosure would not violate any confidentiality obligation, direct
or indirect, express or implied.
(c) Employee will not remove from Employer's premises (except to the
extent such removal is for purposes of the performance of Employee's duties at
home or while traveling, or except as otherwise specifically authorized by
Employer) any document, record, notebook, plan, model, component, device, or
computer software or code, whether embodied in a disk or in any other form
(collectively, the "Proprietary Items"). Employee recognizes that, as between
Employer and Employee, all of the Proprietary Items, whether or not developed by
Employee, are the
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exclusive property of Employer. Upon termination of this Agreement by either
party, or upon the request of Employer during the Employment Period, Employee
will return to Employer all of the Proprietary Items in Employee's possession or
subject to Employee's control, and Employee shall not retain any copies,
abstracts, sketches, or other physical embodiment of any of the Proprietary
Items.
7.2 Disputes or Controversies. Employee recognizes that should a
dispute or controversy arising from or relating to this Agreement be submitted
for adjudication to any court, arbitration panel, or other third party, the
preservation of the secrecy of Confidential Information may be jeopardized.
Employee and Employer will use their best efforts to cause all pleadings,
documents, testimony, and records relating to any such adjudication to be
maintained in secrecy and to make the same available for inspection by Employer,
Employee, and their respective attorneys and experts, who will agree, in advance
and in writing, to receive and maintain all such information in secrecy, except
as may be limited by them in writing.
ARTICLE 8.
RESTRICTIVE COVENANTS
8.1 Acknowledgments by Employee. Employee acknowledges that: (a) the
services to be performed by him under this Agreement are of a special, unique,
unusual, extraordinary, and intellectual character; (b) Employer's business is
national in scope and its products are marketed throughout the United States;
(c) Employer competes with other businesses that are or could be located in any
part of the United States; (d) Employer has required that Employee make the
covenants set forth in this ARTICLE 8 as a condition to Employer's employment of
employee; and (e) the geographic boundaries, scope of prohibited activities, and
time duration of the provisions of this ARTICLE 8 are reasonable, are no broader
than are necessary to protect the business interests of Employer and its
Affiliates and are not oppressive and do not and will not impose any
unreasonable burden on Employee.
8.2 Covenants of Employee. In consideration of the acknowledgments by
Employee, and in consideration of the compensation and benefits to be paid or
provided to Employee by Employer, Employee covenants that he will not, directly
or indirectly:
(a) during the Employment Period, except in the course of his
employment hereunder, and during the Post-Employment Period, engage or invest
in, own, manage, operate, finance, control, or participate in the ownership,
management, operation, financing, or control of, be employed by, associated
with, or in any manner connected with, lend Employee's name or any similar name
to, lend Employee's credit to or render services or advice to, any business
whose products or activities compete in whole or in part with the products or
activities of Employer:
(i) anywhere within the United States;
(ii) anywhere in Virginia, Washington, D.C. or Maryland;
(iii) anywhere within 50 miles of any location where Employer
does business including, without limitation, Georgia, China or Pakistan;
(iv) anywhere within 100 miles of any physical location owned,
leased or operated by Employer;
(v) anywhere within 50 miles of any physical location owned,
leased or operated by Employer;
provided, however, that (A) Employee may purchase or otherwise acquire up
to (but not more than) 4.99 percent of any class of securities of any enterprise
(but without otherwise participating in the activities of such enterprise) if
such securities are listed on any national or regional securities exchange or
have been registered under Section 12(g) of the Securities Exchange Act of 1934,
and (B) this provision shall not require Employee to sell, transfer, assign or
otherwise divest any interest owned by him prior to the date of this Agreement;
(b) whether for Employee's own account or for the account of any other
Person, at any time during the Employment Period and the Post-Employment Period,
solicit business of the same or similar type being carried on by Employer, from
any Person known by Employee to be a customer of Employer, whether or not
Employee had personal contact with such person during and by reason of
Employee's employment with Employer;
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(c) whether for Employee's own account or the account of any other
Person (i) at any time during the Employment Period and the Post-Employment
Period, solicit, employ, or otherwise engage as an employee, independent
contractor, or otherwise, any Person who is an employee of Employer or in any
manner induce or attempt to induce any employee of Employer to terminate his
employment with Employer; or (ii) at any time during the Employment Period and
during the Post-Employment Period, interfere with Employer's relationship with
any Person, including any Person who at any time during the Employment Period
was an employee, contractor, supplier, or customer of Employer; or
(d) at any time during the Employment Period and during the
Post-Employment Period, disparage Employer or any of its shareholders,
directors, officers, employees, or agents.
8.3 Return of Materials. When Employee ceases to be an employee of
Employer, Employee promptly shall deliver to Employer all documents, memoranda,
records, notes, and other materials in his possession, whether prepared by him
or others, and all copies thereof, that contain any Confidential Information,
and Employee shall have no further rights therein.
ARTICLE 9.
MISCELLANEOUS
9.1 Injunctive Relief and Additional Remedy. Employee acknowledges
that the injury that would be suffered by Employer as a result of a breach of
the provisions of this Agreement (including any provision of ARTICLE 7 or
ARTICLE 8) would be irreparable and that an award of monetary damages to
Employer for such a breach would be an inadequate remedy. Consequently, Employer
will have the right, in addition to any other rights it may have, to obtain
injunctive relief to restrain any breach or threatened breach or otherwise to
specifically enforce any provision of this Agreement, and Employer will not be
obligated to post bond or other security in seeking such relief. Without
limiting Employer's rights under this ARTICLE 9 or any other remedies of
Employer, if Employee breaches any of the provisions of ARTICLE 7 or ARTICLE 8,
Employer will have the right to cease making any payments otherwise due to
Employee under this Agreement.
9.2 Covenants of Article 7 and Article 8 are Essential and Independent
Covenants. The covenants by Employee in ARTICLE 7 and ARTICLE 8 are essential
elements of this Agreement, Employer would not have entered into this Agreement
or employed or continued the employment of Employee. The Company and Employee
have independently consulted their respective counsel and have been advised in
all respects concerning the reasonableness and propriety of such covenants, with
specific regard to the nature of the business conducted by Employer. Employee's
covenants in ARTICLE 7 and ARTICLE 8 are independent covenants and the existence
of any claim by Employee against Employer under this Agreement or otherwise, or
against the Buyer, will not excuse Employee's breach of any covenant in ARTICLE
7 or ARTICLE 8. Except as otherwise stated herein, if Employee's employment
hereunder expires or is terminated, this Agreement will continue in full force
and effect as is necessary or appropriate to enforce the covenants and
agreements of Employee in ARTICLE 7 and ARTICLE 8.
9.3 Representations and Warranties by Employee. Employee represents
and warrants to Employer that the execution and delivery by Employee of this
Agreement does not, and the performance by Employee of Employee's obligations
hereunder will not, with or without the giving of notice or the passage of time,
or both: (a) violate any judgment, writ, injunction, or order of any court,
arbitrator, or governmental agency applicable to Employee; or (b) conflict with,
result in the breach of any provisions of or the termination of, or constitute a
default under, any agreement to which Employee is a party or by which Employee
is or may be bound.
9.4 Waiver. The rights and remedies of the parties to this Agreement
are cumulative and not alternative. Neither the failure nor any delay by either
party in exercising any right, power, or privilege under this Agreement will
operate as a waiver of such right, power, or privilege, and no single or partial
exercise of any such right, power, or privilege will preclude any other or
further exercise of such right, power, or privilege or the exercise of any other
right, power, or privilege. To the maximum extent permitted by applicable law,
(a) no claim or right arising out of this Agreement can be discharged by one
party, in whole or in part, by a waiver or renunciation of the claim or right
unless in writing signed by the other party; (b) no waiver that may be given by
a party will be applicable except in the specific instance for which it is
given; and (c) no notice to or demand on one party will be deemed to be a waiver
of any
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obligation of such party or of the right of the party giving such notice or
demand to take further action without notice or demand as provided in this
Agreement.
9.5 Binding Effect; Delegation of Duties Prohibited. This Agreement
shall inure to the benefit of, and shall be binding upon, the parties hereto and
their respective successors, assigns, heirs, and legal representatives,
provided, however, that this Agreement may be assigned by Employer only with the
prior written consent of Employee, which consent shall not be unreasonably
withheld. The duties and covenants of Employee under this Agreement, being
personal, may not be delegated.
9.6 Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
9.7 Notices. All notices, requests, demands, claims, and other
communications hereunder shall be in writing and shall be given by registered or
certified mail, return receipt requested, postage prepaid, by telecopier or by
national overnight delivery service, and addressed to the intended recipient as
set forth below:
IF TO EMPLOYEE:
Nana Maraneli
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IF TO EMPLOYER WITH A COPY TO:
Sonus Communications, Inc.
c/o Chief Executive Officer Xxxxx X. Xxxxxx, III, Esquire
0000 Xxxxxx Xxxx. McGuire, Woods, Battle & Xxxxxx LLP
Suite 0000 Xxxxx Xxxxx Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000 Xxxxxxxxx, Xxxxxxxx 00000-0000
Any notice given in the manner aforesaid shall be deemed to have been served,
and shall be effective for all purposes hereof (a) if sent by registered or
certified mail, on the earlier of the second day following the day on which it
is posted or the date of its receipt by the party to be notified, (b) if sent by
telecopier, the day actually received as evidenced by a written receipt of
transmission and (c) if sent by overnight delivery service, the day after such
notice has been delivered by the party to said service. Any Party may change the
address to which notices, requests, demands, claims, and other communications
hereunder are to be delivered by giving the other Party notice in the manner
herein set forth.
9.8 Entire Agreement; Amendments. This Agreement contains the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings, oral or written, between the
parties hereto with respect to the subject matter hereof. This Agreement may not
be amended orally, but only by an agreement in writing signed by the parties
hereto.
9.9 Construction. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties and no presumption or burden of proof shall
arise favoring or disfavoring any Party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise.
9.10 Severability. If any provision of this Agreement is held invalid
or unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
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Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
9.11 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
9.12 Governing Law; Venue. This Agreement shall be governed by and
construed in accordance with the domestic laws of the Commonwealth of Virginia
without giving effect to any choice or conflict of law provision or rule
(whether of the Commonwealth of Virginia or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the
Commonwealth of Virginia. To the extent not resolved by binding arbitration
pursuant to Section 9.13 below, each of the parties submits to the jurisdiction
of any state or federal court sitting in Fairfax, Virginia, in any action or
proceeding arising out of or relating to this Agreement and agrees that all
claims in respect of the action or proceeding shall be heard and determined in
any such court. Each party also agrees not to bring any action or proceeding
arising out of or relating to this Agreement in any other court. Each of the
parties waives any defense of inconvenient forum to the maintenance of any
action or proceeding so brought and waives any bond, surety, or other security
that might be required of any other party with respect thereto.
9.13 Binding Arbitration. Any controversy, dispute or claim of whatever
nature arising out of, in connection with, or in relation to the interpretation,
performance or breach of this Agreement, including any claim based on contract,
tort, or statute, and regardless of the amount of any claim or counterclaim,
shall be settled, at the request of any party to this Agreement, by final and
binding arbitration conducted at a location in Fairfax, Virginia (the
"Arbitration") determined by an arbitrator (the "Arbitrator") selected and
designated by the American Arbitration Association ("AAA"), administered by and
in accordance with the then existing Expedited Procedures (the "Expedited
Procedures") under the Commercial Arbitration Rules of the AAA, and judgment
upon any award rendered by the Arbitrator may be entered by any state or federal
court having jurisdiction thereof. By executing this Agreement, the parties
hereto expressly agree that the Expedited Procedures under the Commercial
Arbitration Rules of the AAA shall govern any arbitration proceeding, and the
parties expressly waive any and all challenges to the administration of
Arbitration pursuant to the Expedited Procedures.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed and delivered as of the day and date first above written.
EMPLOYER:
SONUS COMMUNICATIONS, INC.
By:
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Name: W. Xxxx Xxxxxx
Title: President
EMPLOYEE:
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Nana Maraneli
Schedule A - 1
