EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement"), made this __ day of
March, 2001, is entered into by Arch Wireless, Inc., a Delaware corporation with
its principal place of business at 0000 Xxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxx,
XX, 00000 (the "Company"), and Xxxxxx X. Xxxxxxx, an individual residing at 00
Xxxxxxxxxxx, Xxxxxxx, XX 00000 (the "Executive").
WHEREAS, the Company recognizes that the Executive's contribution to the
Company has been integral to its success, and thus desires to continue the
employment of the Executive on the terms set forth below; and
WHEREAS, the Executive has served as the President and Chief Operating
Officer of the Company since January, 1998 and agrees to continue his employment
with the Company; and
WHEREAS, the Company and the Executive wish to enter into a formal
employment agreement with respect to the continued employment of the Executive
by the Company, which shall automatically become effective as of the date of
this Agreement and shall supersede the Executive Retention Agreement between the
parties.
NOW, THEREFORE, for the mutual covenants and promises contained herein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties hereto, the parties agree as follows:
1. TERM OF EMPLOYMENT. The Company hereby agrees to employ the Executive,
and the Executive hereby accepts employment with the Company, upon the terms set
forth in this Agreement, for the period commencing on March 13, 2001 (the
"Commencement Date") and ending on March 13, 2004 (such term, as it may be
extended or terminated, constitutes the "Employment Period"), unless sooner
terminated in accordance with the provisions of Section 4. The Employment Period
shall be extended for successive terms of one (1) year unless either party
terminates the Agreement by written notice to the other within at least ninety
(90) days prior to the expiration of the initial or extended term as applicable,
or unless sooner terminated in accordance with the provisions of Section 4.
2. POSITION AND RESPONSIBILITIES. The Executive shall serve as President
and Chief Operating Officer for the Company, or in such other equivalent
position as the Company or its Board of Directors (the "Board") may determine.
The Executive shall be based at the Company's location in Westborough,
Massachusetts, or at such location as the Board shall determine in its
discretion. The Executive shall be subject to the supervision of, and shall have
such authority as is delegated to him by the Board or such officer of the
Company as may be designated by the Board, and shall report to the Chief
Executive Officer.
The Executive agrees to undertake the duties, authority and
responsibilities as are normally associated with and appropriate for the
position of President and Chief Operating Officer, as well as such other duties
and responsibilities as the Board or its designee shall reasonably assign from
time to time (including the time, manner, details, and method of performing such
duties and responsibilities).
The Executive agrees that, during the Employment Period, he will devote his
entire business time, attention, and energies to the diligent, faithful, and
competent discharge of such duties and responsibilities for the successful
operation of the Company and its business interests; provided, however, the
Executive may actively participate in charitable activities, subject to approval
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by the Board of Directors, so long as they do not interfere or conflict with his
duties and responsibilities under this Agreement. The Executive agrees to abide
by the rules, regulations, instructions, personnel practices, and policies of
the Company and any changes therein which may be adopted from time to time by
the Company. The Executive acknowledges receipt of copies of all such rules and
policies committed to writing as of the date of this Agreement.
3. Compensation and Benefits.
3.1 Salary. In consideration of the services to be rendered by the
Executive, the Company shall pay the Executive during the period of his
employment a base salary at the annualized rate of $379,000 (the "Base Salary"),
payable in accordance with the payroll practices generally adopted by the
Company. The Executive will also be eligible to participate in the Company's
annual bonus program during the Employment Period. This salary may be reviewed
and adjusted from time to time by the Board.
3.2 Fringe Benefits. The Executive shall be entitled to participate in
all bonus and benefit programs on the most favorable terms that the Company
establishes and makes available to its employees, if any, to the extent that the
Executive's position, tenure, salary, health and other qualifications make him
eligible to participate. Such participation in bonus and benefit programs shall
be subject to: (a) the terms of the applicable plan documents; (b) generally
applicable Company policies; and (c) the discretion of the Board. The Company
may alter, modify, add to or delete its employee benefit plans at any time as
the Board, in its sole judgment, determines to be appropriate.
(i) Vacation and Holidays. The Executive shall be entitled to
four (4) weeks paid vacation per year, to be taken at such times as may be
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approved by the Company or the Board. The Executive shall also be entitled to
all paid holidays given by the Company to its other executives.
(ii) Reimbursement of Expenses. The Company shall reimburse the
Executive for all reasonable business-related expenses incurred or paid by the
Executive in connection with, or related to, the performance of his duties under
this Agreement, upon presentation by the Executive of documentation, expense
statements, vouchers and/or such other supporting information as the Company may
request, provided, however, that the amount available for such business-related
expenses may be fixed in advance by the Board.
(iii) Stock Options. Any stock options previously granted by the
Company to the Executive prior to the date of this Agreement shall be governed
by the particular Stock Option Plan or individual Stock Option Agreement under
which such stock options were granted. Notwithstanding the foregoing, if a
Change in Control occurs during the Employment Period and prior to the
Termination Date (as defined in Section 5), then, effective upon the Change in
Control Date, each outstanding option to purchase shares of Common Stock of the
Company held by the Executive shall become (to the extent it is not already)
immediately exercisable in full. For purposes of this Section 3.2(iii):
(a) Change in Control Date means the first date during the
Employment Period on which a Change in Control occurs.
(b) Change in Control means, an event involving either subsection
(1) or (2) but not (3):
(1) the acquisition by an individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
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Act of 1934, as amended (the "Exchange Act")) (a "Person") of beneficial
ownership of any capital stock of the Company if, after such acquisition, such
Person beneficially owns (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) 50% or more of either (x) the then-outstanding shares of common
stock of the Company (the "Outstanding Company Common Stock") or (y) the
combined voting power of the then-outstanding securities of the Company entitled
to vote generally in the election of directors (the "Outstanding Company Voting
Securities"); provided, however, that for purposes of this subsection (a), the
following acquisitions shall not constitute a Change in Control Event: (A) any
acquisition directly from the Company (excluding an acquisition pursuant to the
exercise, conversion or exchange of any security exercisable for, convertible
into or exchangeable for common stock or voting securities of the Company,
unless the Person exercising, converting or exchanging such security acquired
such security directly from the Company or an underwriter or agent of the
Company), (B) any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation controlled by the
Company or any Acquiring Corporation (as defined in subsection (2) of this
definition), or (C) any acquisition by any corporation pursuant to a Business
Combination (as defined below) which fails to satisfy the condition specified in
clause (y) of subsection (2) of this Section 3.2(iii); or
(2) the consummation of a merger, consolidation,
reorganization, recapitalization or share exchange involving the Company or a
sale or other disposition of all or substantially all of the assets of the
Company (a "Merger Combination"), if immediately following such Merger
Combination, neither of the following two conditions is satisfied: (x) all or
substantially all of the individuals and entities who were the beneficial owners
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of the Outstanding Company Common Stock and Outstanding Company Voting
Securities immediately prior to such Merger Combination beneficially own,
directly or indirectly, more than 50% of the then-outstanding shares of common
stock and the combined voting power of the then-outstanding securities entitled
to vote generally in the election of directors, respectively, of the resulting
or acquiring corporation in such Merger Combination (which shall include,
without limitation, a corporation which as a result of such transaction owns the
Company or substantially all of the Company's assets either directly or through
one or more subsidiaries) (such resulting or acquiring corporation is referred
to herein as the "Acquiring Corporation") in substantially the same proportions
as their ownership of the Outstanding Company Common Stock and Outstanding
Company Voting Securities, respectively, immediately prior to such Merger
Combination and (y) the Continuing Directors (as defined below) do not
constitute a majority of the Board (or, if applicable, the Board of Directors of
a successor corporation to the Company), where the term "Continuing Director"
means at any date a member of the Board (A) who was a member of the Board on the
effective date of this Agreement or (B) who was nominated or elected subsequent
to such date by at least a majority of the directors who were Continuing
Directors at the time of such nomination or election or whose election to the
Board was recommended or endorsed by at least a majority of the directors who
were Continuing Directors at the time of such nomination or election; provided,
however, that there shall be excluded from this clause (B) any individual whose
initial assumption of office occurred 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.
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(3) Notwithstanding the foregoing provisions of subsections
(1) and (2), no transaction undertaken in connection with or contemplated by the
Agreement and Plan of Merger dated November 7, 1999 among Paging Network, Inc.,
Arch Communications Group, Inc. and St. Louis Acquisition Corp., as amended from
time to time (the "Merger Agreement") shall be deemed to be a Change in Control.
4. Termination Payments.
4.1 Benefits to Executive.
(a) Termination Without Cause or for Good Reason. If the Executive's
employment with the Company is terminated by the Company (other than for Cause,
Disability or Death) or by the Executive for Good Reason, the Executive shall be
entitled to the following benefits:
(i) the Company shall pay to the Executive in a lump sum in cash
within 30 days after the Termination Date (as defined in Section 5) the
aggregate of the following amounts: the sum of (A) the Executive's base salary
through the Termination Date (to the extent not previously paid), (B) the
product of (x) the annual bonus paid or payable (including any bonus or portion
thereof which has been earned but deferred) for the most recently completed
fiscal year and (y) a fraction, the numerator of which is the number of days in
the current fiscal year through the Termination Date, and the denominator of
which is 365, and (C) the amount of any compensation previously deferred by the
Executive (together with any accrued interest or earnings thereon) and any
accrued vacation pay, in each case to the extent not previously paid (the sum of
the amounts described in clauses (A), (B) and (C) shall be hereinafter referred
to as the "Accrued Obligations"); and the amount equal to (A) three multiplied
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by (B) the sum of (x) the Executive's annual base salary in effect on the
Termination Date and (y) the average bonus paid for the three calendar years
immediately preceding the calendar year during which the Termination Date
occurs;
(ii) for 12 months after the Termination Date, or such longer
period as may be provided by the terms of the appropriate plan, program,
practice or policy, the Company shall continue to provide benefits to the
Executive and the Executive's family at least equal to those which would have
been provided to them if the Executive's employment had not been terminated, in
accordance with the applicable Benefit Plans in effect on the Termination Date
or, if more favorable to the Executive and his family, in effect generally at
any time thereafter with respect to other peer executives of the Company and its
affiliated companies; provided, however, that the Company shall not be obligated
to continue any benefits which cannot be continued for terminated employees of
the Company; and provided, further, however, that if the Executive becomes
reemployed with another employer and is eligible to receive substantially
equivalent benefits under another employer-provided plan, on terms at least as
favorable to the Executive and his family, then the Company shall no longer be
required to provide the benefits described in this clause (ii);
(iii) to the extent not previously paid or provided, the Company
shall timely pay or provide to the Executive any other amounts or benefits
required to be paid or provided or which the Executive is eligible to receive
following the Executive's termination of employment under any plan, program,
policy, practice, contract or agreement of the Company and its affiliated
companies (such other amounts and benefits shall be hereinafter referred to as
the "Other Benefits");
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(iv) for purposes of determining eligibility (but not the time of
commencement of benefits) of the Executive for retiree benefits to which the
Executive is entitled, the Executive shall be considered to have remained
employed by the Company until 12 months after the Termination Date; and
(v) notwithstanding any provisions of any Company Stock Incentive
or Option Plan or individual Stock Option Agreement to the contrary, effective
upon the Termination Date, each outstanding option to purchase shares of Common
Stock of the Company then held by the Executive shall become (to the extent it
is not already) immediately exercisable in full.
(b) Resignation without Good Reason. If the Executive voluntarily
terminates his employment with the Company, excluding a termination for Good
Reason (as defined in Section 5.2(b)), the Company shall (i) pay the Executive
in a lump sum in cash within 30 days after the Termination Date, the Accrued
Obligations and (ii) timely pay or provide to the Executive the Other Benefits.
(c) Termination for Death. The Company will pay the Executive's
estate, in full satisfaction of its compensation obligations under this
Agreement, an amount equal to any base salary due to the Executive through the
last day of the Employment Period or an amount equal to twelve (12) months of
the Executive's base salary, whichever is greater, plus a pro rated portion of
any annual bonus to which the Executive may have been entitled on the last day
of his actual employment.
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4.2 Taxes.
(a) In the event that the Company undergoes a "Change in Ownership or
Control" (as defined below), the Company shall, within 30 days after each date
on which the Executive becomes entitled to receive (whether or not then due) a
Contingent Compensation Payment (as defined below) relating to such Change in
Ownership or Control, determine and notify the Executive (with reasonable detail
regarding the basis for its determinations) (i) which of the payments or
benefits due to the Executive (under this Agreement or otherwise) following such
Change in Ownership or Control constitute Contingent Compensation Payments, (ii)
the amount, if any, of the excise tax (the "Excise Tax") payable pursuant to
Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), by
the Executive with respect to such Contingent Compensation Payment and (iii) the
amount of the Gross-Up Payment (as defined below) due to the Executive with
respect to such Contingent Compensation Payment. Within 30 days after delivery
of such notice to the Executive, the Executive shall deliver a response to the
Company (the "Executive Response") stating either (A) that he agrees with the
Company's determination pursuant to the preceding sentence or (B) that he
disagrees with such determination, in which case he shall indicate which payment
and/or benefits should be characterized as a Contingent Compensation Payment,
the amount of the Excise Tax with respect to such Contingent Compensation
Payment and the amount of the Gross-Up Payment due to the Executive with respect
to such Contingent Compensation Payment. The amount and characterization of any
item in the Executive Response shall be final; provided, however, that in the
event that the Executive fails to deliver an Executive Response on or before the
required date, the Company's initial determination shall be final. Within 90
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days after the due date of each Contingent Compensation Payment to the
Executive, the Company shall pay to the Executive, in cash, the Gross-Up Payment
with respect to such Contingent Compensation Payment, in the amount determined
pursuant to this Section 4.2(a).
(b) For purposes of this Section 4.2, the following terms shall have
the following respective meanings:
(i) "Change in Ownership or Control" shall mean a change in the
ownership or effective control of the Company or in the ownership of a
substantial portion of the assets of the Company determined in accordance with
Section 280G(b)(2) of the Code;
(ii) "Contingent Compensation Payment" shall mean any payment (or
benefit) in the nature of compensation that is made or made available (under
this Agreement or otherwise) to a "disqualified individual" (as defined in
Section 280G(c) of the Code) and that is contingent (within the meaning of
Section 280G(b)(2)(A)(i) of the Code) on a Change in Ownership or Control of the
Company; and
(iii) "Gross-Up Payment" shall mean an amount equal to the sum of
(i) the amount of the Excise Tax payable with respect to a Contingent
Compensation Payment and (ii) the amount necessary to pay all additional taxes
imposed on (or economically borne by) the Executive (including the Excise Taxes,
state and federal income taxes and all applicable withholding taxes)
attributable to the receipt of such Gross-Up Payment. For purposes of the
preceding sentence, all taxes attributable to the receipt of the Gross-Up
Payment shall be computed assuming the application of the maximum tax rates
provided by law.
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4.3 Timing and Dispute Resolution. Any payments or other benefits
otherwise due to the Executive following a Change in Ownership or Control that
could reasonably be characterized (as determined by the Company) as Contingent
Compensation Payments (the "Potential Payments") shall not be made until the
dates provided for in this Section. Within 30 days after the date of such Change
in Ownership or Control, the Company shall determine and notify the Executive
(with reasonable detail regarding the basis for its determinations) (i) which
Potential Payments constitute Contingent Compensation Payments, (ii) the
Eliminated Amount and (iii) whether the Override is applicable. Within 30 days
after delivery of such notice to the Executive, the Executive shall deliver a
response to the Company (the "Executive Response") stating either (A) that he
agrees with the Company's determination pursuant to the preceding sentence, in
which case he shall indicate, if applicable, which Contingent Compensation
Payments, or portions thereof (the aggregate amount of which, determined in
accordance with Proposed Treasury Regulation Section 1.280G-1, QA-30 or any
successor provision, shall be equal to the Eliminated Amount), shall be treated
as Eliminated Payments or (B) that he disagrees with such determination, in
which case he shall indicate which Potential Payments should be characterized as
Contingent Compensation Payments, the Eliminated Amount, whether the Override is
applicable, and, which (if any) Contingent Compensation Payments, or portions
thereof (the aggregate amount of which, determined in accordance with Proposed
Treasury Regulation Section 1.28OG-1, QA-30 or any successor provision, shall be
equal to the Eliminated Amount, if any), shall be treated as Eliminated
Payments. In the event that the Executive fails to deliver an Executive Response
on or before the required date, the Company's initial determination shall be
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final and the Contingent Compensation Payments that shall be treated as
Eliminated Payments shall be determined by the Company in its absolute
discretion. If the Executive states in the Executive Response that he agrees
with the Company's determination, the Company shall make the Potential Payments
to the Executive within three business days following delivery to the Company of
the Executive Response (except for any Potential Payments which are not due to
be made until after such date, which Potential Payments shall be made on the
date on which they are due). If the Executive states in the Executive Response
that he disagrees with the Company's determination, then, for a period of 60
days following delivery of the Executive Response, the Executive and the Company
shall use good faith efforts to resolve such dispute. If such dispute is not
resolved within such 60-day period, such dispute shall be settled exclusively by
arbitration in Boston, Massachusetts, in accordance with the rules of the
American Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction. The Company shall, within
three business days following delivery to the Company of the Executive Response,
make to the Executive those Potential Payments as to which there is no dispute
between the Company and the Executive regarding whether they should be made
(except for any such Potential Payments which are not due to be made until after
such date, which Potential Payments shall be made on the date on which they are
due). The balance of the Potential Payments shall be made within three business
days following the resolution of such dispute. The amount of any payments to be
made to the Executive following the resolution of such dispute shall be
increased by amount of the accrued interest thereon computed at the prime rate
announced from time to time by the Wall Street Journal, compounded monthly from
the date that such payments originally were due.
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4.4 Mitigation. The Executive shall not be required to mitigate the
amount of any payment or benefits provided for in this Section 4 by seeking
other employment or otherwise. Further, except as provided in Section
4.1(a)(ii), the amount of any payment or benefits provided for in this Section 4
shall not be reduced by any compensation earned by the Executive as a result of
employment by another employer, by retirement benefits, by offset against any
amount claimed to be owed by the Executive to the Company or otherwise.
4.5 Severance Agreement. The Company shall not be obligated under this
Section 4 until and unless the Executive shall execute a severance agreement and
release drafted by the Company and satisfactory to the Company and the
Executive.
5. Employment Termination.
5.1 Types of Terminations. The employment of the Executive by the
Company pursuant to this Agreement shall terminate upon the occurrence (which
occurrence shall constitute the "Termination Date") of the earliest of the
following to occur: (a) expiration of the Employment Period in accordance with
Section 1, at which time the Executive acknowledges that the Company will have
no obligation to employ him in any capacity whatsoever; (b) at the election of
the Company, for Cause, immediately upon written notice by the Company to the
Executive; (c) at the election of the Company, without Cause, immediately upon
thirty (30) days prior written notice of termination; (d) at the election of the
Executive, with Good Reason, upon not less than thirty (30) days prior written
notice of termination; (e) at the election of the Executive, without Good
Reason, upon not less than thirty (30) days prior written notice of termination;
and (f) immediately upon the death of the Executive, if such death occurs prior
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to the expiration of the Employment Period and prior to any notice being given
under the foregoing events of termination.
5.2 Definitions. As used in this Agreement, the following terms shall
mean:
(a) "Cause" for termination shall be deemed to exist upon (i) a
good faith finding by the Board of the Executive's abandonment of his duties
under Section 2 of this Agreement, which shall be deemed to have occurred if the
Executive ceases to function and perform his duties hereunder; leaves the
geographical area in which the Company engages in its business; or conducts
himself in willful or wanton disregard of the Company and its best interests for
any reason, including, without limitation, alcohol or drug abuse; (ii) the
Executive's commission of dishonesty, gross negligence or misconduct, whether in
connection with the Executive's responsibilities in his position with the
Company or otherwise (including, without limitation, breach by the Executive of
any provision of any employment, nondisclosure, non-competition or other similar
agreement between the Executive and the Company as determined in the sole
judgment of the Company); or (iii) the conviction of the Executive of or the
entry of a pleading of guilty or nolo contendere by the Executive to any crime
involving moral turpitude or any felony. The Executive shall be considered to
have been discharged for "Cause" if the Board determines in its sole discretion,
within thirty (30) days after the Executive's resignation or termination, that
discharge for Cause was warranted.
(b) "Good Reason" for termination by the Executive shall be
deemed to exist if: (i) the Company materially diminishes the nature or status
of the Executive's position; (ii) the Executive fails to perform his duties
under the Agreement as a result of his incapacity due to Disability; or (iii)
the Company requires the Executive to relocate more than fifty (50) miles from
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his regular place of business. If the Executive terminates his employment under
this subsection, but fails to provide the Company with written notice on the
terms set forth in Section 5.1(d), his termination will be treated as being
without Good Reason under the provisions of Section 6.3 below.
(c) "Disability" shall mean the inability of the Executive (with
reasonable accommodation as may be required by state or federal law), due to a
physical or mental disability, for a period of ninety (90) days, whether or not
consecutive, during any 360-day period, to perform the services contemplated
under this Agreement. A determination of Disability shall be made by a physician
satisfactory to both the Executive and the Company; provided that, if the
Executive and the Company do not agree on a physician, the Executive and the
Company shall each select a physician and these two together shall select a
third physician, whose determination as to Disability shall be binding on all
parties.
6. Effect of Termination.
6.1 Termination by the Company for Cause. In the event that the
Executive's employment is terminated for Cause pursuant to Section 5.2(a), the
Company shall pay to the Executive only the compensation and benefits otherwise
payable to him under Section 3 through the last day of his employment by the
Company.
6.2 Expiration of Employment Period. If the Executive's employment is
terminated by the Company pursuant to Section 5.1(a), at the expiration of the
Employment Period whether or not extended, the Company shall pay the Executive
the compensation and benefits otherwise payable to him under Section 3 through
the last day of his employment by the Company. In addition, the Company shall
pay to the Executive, in a lump sum in cash, within 30 days of the Termination
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Date, an amount equal to the sum of: (A) the Executive's annual base salary in
effect on the Termination Date and (B) the average annual bonus paid to the
Executive for the three calendar years immediately preceding the calendar year
during which the Termination Date occurred; and shall also provide (C) the
benefits described in Section 4.1(a)(ii), all subject to execution of a
severance agreement and release as provided in Section 4.5.
6.3 Termination by the Executive Without Good Reason. In the event the
Executive terminates his employment without Good Reason pursuant to Section
5.1(e), the Company shall pay the Executive the compensation and benefits
otherwise payable to him under Section 4.1(b).
6.4 Termination By the Company Without Cause or by the Executive For
Good Reason. If the Executive's employment is terminated by the Company Without
Cause or by the Executive for Good Reason, pursuant to Section 5.1(c) and
5.1(d), respectively, the Company shall pay to the Executive the compensation
and benefits otherwise payable to him under Section 4 in conformity with the
provisions of Section 4.1(a), including the requirement that the Executive
execute a severance agreement and release.
6.5 Termination By Death. If the Executive's employment is terminated
pursuant to Section 5.1(f) because of the Executive's death, this Agreement
terminates immediately and the Company shall pay to the Executive's estate the
compensation payable under Section 4.1(c).
6.6 Return of Company Property Upon Termination. The Executive shall
deliver to the Company or its designee at the termination of his employment all
Company property and equipment in his possession and control, including, without
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limitation: computers, cellular phones, automobiles and other Company property
provided to the Executive for his use during his employment. In addition, the
Executive shall return to the Company all correspondence, memoranda, notes,
records, drawings, sketches, plans, customer lists, product compositions, other
documents, and all copies thereof, including those developed in whole or in part
by the Executive, that are in the Executive's possession, custody, or control.
The Executive further agrees to cancel all accounts, if any, in the name of the
Company including, without limitation, all credit cards, telephone charge cards,
cellular phone and pager accounts and computer accounts.
6.7 Survival. The provisions of Sections 7, 8 and 9 of this Agreement
shall survive the expiration or termination of the Employment Period and the
term of this Agreement, as necessary, to give full effect to such provisions.
7. Non-Compete. During the Executive's employment and for a period of one
(1) year after the termination or expiration of the Employment Period (the
"Non-Competition Period"), the Executive will not, directly or indirectly:
(a) as an individual proprietor, partner, stockholder, officer, employee,
director, joint venturer, investor, lender, or in any other capacity whatsoever
(other than as the holder of not more than one percent (1%) of the total
outstanding stock of a publicly held company), engage in the business of
developing, producing, marketing or selling products of the kind or type
developed or being developed, produced, marketed or sold by the Company while
the Executive was employed by the Company; or
(b) recruit, solicit or induce, or attempt to induce, any employee or
employees of the Company to terminate their employment with, or otherwise cease
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their relationship with, the Company; or
(c) solicit, divert, with the intention to take away, or attempt to divert
with the intention to take away, the business or patronage of any of the
clients, customers or accounts, or prospective clients, customers or accounts,
of the Company which were contacted, solicited or served by the Executive while
employed by the Company.
The geographic scope of this Section 6 shall extend to any area the Company
has done business, is doing business or has taken substantial steps to do
business. If any restriction set forth in this Section 7 is found by any court
of competent jurisdiction to be unenforceable because it extends for too long a
period of time, or over too great a range of activities, or in too broad a
geographic area, it shall be interpreted to extend only over the maximum period
of time, range of activities or geographic area as to which it may be legally
enforceable.
The restrictions contained in this Section 7 are necessary for the
protection of the business and goodwill of the Company and are considered by the
Executive to be reasonable for such purpose. The Executive agrees that any
breach of this Section 7 will cause the Company substantial and irrevocable
damage and therefore, in the event of any such breach, in addition to such other
remedies which may be available, the Company shall have the right to seek
specific performance and injunctive relief.
This Section 7 shall not be enforceable if the Executive terminates his
employment for Good Reason or if the Executive is terminated without cause. 8.
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8. Proprietary Information and Developments.
8.1 Proprietary Information.
(a) The Executive agrees that all information and know-how,
whether or not in writing, of a private, secret or confidential nature
concerning the Company's business or financial affairs (collectively,
"Proprietary Information") is and shall be the exclusive property of the
Company. By way of illustration, but not limitation, Proprietary Information may
include inventions, products, processes, methods, techniques, formulas,
compositions, compounds, projects, developments, plans, research data, clinical
data, financial data, personnel data, computer programs, and customer and
supplier lists.
The Executive will not disclose any Proprietary Information to
others outside the Company or use the same for any unauthorized purposes without
written approval by an officer of the Company, either during or after his
employment, unless and until such Proprietary Information has become public
knowledge without fault by the Executive. Except as may be required or
appropriate in connection with him carrying out his duties under this Agreement,
the Executive shall not, without the prior written consent of the Company or as
may otherwise be required by law or any legal process, or as is necessary in
connection with any adversarial proceeding against the Company (in which case
the Executive shall cooperate with the Company in obtaining a protective order
at the Company's expense against disclosure by a court of competent
jurisdiction), communicate, to anyone other than the Company and those
designated by the Company or on behalf of the Company in the furtherance of its
business or to perform her duties hereunder, any trade secrets, confidential
information, knowledge or data relating to the Company and its businesses and
investments, obtained by the Executive during the Executive's employment by the
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Company that is not generally available public knowledge (other than by acts by
the Executive in violation of this Agreement).
(b) The Executive agrees that all files, letters, memoranda,
reports, records, data, sketches, drawings, or other written, photographic, or
other tangible material containing Proprietary Information, whether created by
the Executive or others, which shall come into his custody or possession, shall
be and are the exclusive property of the Company to be used by the Executive
only in the performance of his duties for the Company.
(c) The Executive agrees that his obligation not to disclose or
use information, know-how and records of the types set forth in paragraphs (a)
and (b) above, also extends to such types of information, know-how, records and
tangible property of customers of the Company or suppliers to the Company or
other third parties who may have disclosed or entrusted the same to the Company
or to the Executive in the course of the Company's business.
8.2 Developments.
(a) The Executive will make full and prompt disclosure to the
Company of all inventions, improvements, discoveries, methods, developments,
software, and works of authorship, whether patentable or not, which are created,
made, conceived or reduced to practice by the Executive or under his direction
or jointly with others during his employment by the Company, whether or not
during normal working hours or on the premises of the Company (all of which are
collectively referred to in this Agreement as "Developments").
(b) The Executive agrees to assign and does hereby assign to the
Company (or any person or entity designated by the Company) all his right, title
and interest in and to all Developments and all related patents, patent
applications, copyrights and copyright applications developed during his
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employment with the Company. However, this Section 8.2(b) shall not apply to
Developments which do not relate to the present or planned business or research
and development of the Company and which are made and conceived by the Executive
not during normal working hours, not on the Company's premises and not using the
Company's tools, devices, equipment or Proprietary Information.
(c) The Executive agrees to cooperate fully with the Company,
both during and after his employment with the Company, with respect to the
procurement, maintenance and enforcement of copyrights and patents (both in the
United States and foreign countries) relating to Developments. Executive shall
sign all papers, including, without limitation, copyright applications, patent
applications, declarations, oaths, formal assignments, assignment of priority
rights, and powers of attorney, which the Company may deem necessary or
desirable in order to protect its rights and interests in any Development.
8.3 Other Agreements. The Executive hereby represents that, except as
he has disclosed in writing to the Company prior to the execution of this
Agreement, he is not bound by the terms of any agreement with any previous
employer or other party to refrain from using or disclosing any trade secret or
confidential or proprietary information in the course of his employment with the
Company, or to refrain from competing, directly or indirectly, with the business
of such previous employer or any other party. The Executive further represents
that his performance of all the terms of this Agreement and as an employee of
the Company does not and will not breach any agreement to keep in confidence
proprietary information, knowledge or data acquired by him in confidence or in
trust prior to his employment with the Company.
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9. Litigation Cooperation. The Executive agrees to continue to serve the
Company as a litigation consultant, in connection therewith, to cooperate with
the Company in: (i) the defense or prosecution of any claims or actions which
already have been brought or which may be brought in the future against or on
behalf of the Company and (ii) responding to, cooperating with, or contesting
any governmental audit, inspection, inquiry, proceeding or investigation, which
relate to events or occurrences that transpired during his employment with the
Company.
The Executive's full cooperation in connection with such claims or actions
shall include, without implication of limitation: promptly notifying the Company
in writing of any subpoena, interview, investigation, request for information,
or other contact concerning events or occurrences that transpired during his
employment with the Company; being available to meet with counsel for the
Company to prepare for discovery or trial; to testify truthfully as a witness
when reasonably requested and at reasonable times designated by the Company; and
to meet with counsel or other delegated representatives of the Company; to
prepare responses to and to cooperate with the Company's processing of
governmental audits, inspections, inquiries, proceedings or investigations.
The Company agrees to reimburse the Executive for any reasonable
out-of-pocket expenses, including reasonable attorneys' fees, that he incurs in
connection with such cooperation, subject to reasonable documentation. The
Company will exercise its rights under this Section 9 so as not to interfere
unreasonably with the Executive's personal schedule or ability to engage in
gainful employment.
In furtherance of the Executive's obligations under this Agreement, he
agrees that he shall not disclose, provide or reveal, directly or indirectly,
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any information concerning the Company, including without implication of
limitation, its operations, plans, strategies or administration, to any other
person or entity unless compelled to do so (a) pursuant to a valid subpoena or
(b) as otherwise required by law; but in either case only after providing the
Company with prior written notice and opportunity to contest such subpoena or
other requirement. Written notice shall be provided to the Company's Chief
Executive Officer as soon as practicable, but in no event less than five (5)
business days before any such disclosure is compelled.
10. Arbitration All claims by the Executive arising under or in connection
with the terms and provisions of this Agreement shall be settled exclusively by
arbitration in Boston, Massachusetts, in accordance with the rules of the
American Arbitration Association. The arbitrator's determination shall be final
and binding upon all parties and judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction over such claims.
The arbitrator shall have no authority to add to, subtract from or modify in any
way the terms or provisions of this Agreement. If the Executive is the
prevailing party in any arbitration proceeding, he shall be entitled to payment
of his attorneys fees and costs.
Nothing in this section prevents the Company from proceeding in a court of
competent jurisdiction in accordance with the provisions of Sections 7 and 8 of
this Agreement.
11. Miscellaneous.
11.1 Employment By Subsidiary. For purposes of this Agreement, the
Executive's employment with the Company shall not deemed to have terminated
solely as a result of the Executive continuing to be employed by a wholly-owned
subsidiary of the Company.
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11.2 Tax Withholding. Any payments provided for under
this Agreement shall be paid net of any tax withholding required under federal,
state or local law.
11.3 Notices. All notices required or permitted under this Agreement
shall be in writing and shall be deemed effective upon: personal delivery;
deposit in the United States Post Office, by registered or certified mail,
return receipt requested and postage prepaid; or prepaid via a reputable
nationwide overnight courier service. Notices, demands and all other
communications provided for in this Agreement shall, in each case, be addressed
to the Company at 0000 Xxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxx, XX, 00000,
Attention: Chief Executive Officer, and to the Executive at 00 Xxxxxxxxxxx,
Xxxxxxx, XX 00000 (or to such other address as any party may have furnished to
the others in writing, except that notices of change of address shall be
effective only upon receipt).
11.4 Entire Agreement. This Agreement sets forth the entire agreement
of the parties with respect to the Company's employment of the Executive, and
supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any party regarding such subject matter
including the Executive Retention Agreement by and between the Company and the
Executive, most recently amended and restated in an instrument dated November 1,
2000.
11.5 Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions, or the
validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction. If the final judgment of a court of
competent jurisdiction declares that any term or provision hereof is invalid or
25
unenforceable, the parties agree that the court making the determination of
invalidity or unenforceability shall have the power to limit the term or
provision, to delete specific words or phrases, or to replace any invalid or
unenforceable term or provision with a term or provision that is valid and
enforceable and that comes closest to expressing the intention of the invalid or
unenforceable term or provision, and this Agreement shall be enforceable as so
modified.
11.6 Amendment. This Agreement may be amended or modified only by a
written instrument executed by both the Company and the Executive.
11.7 Governing Law; Jurisdiction. This Agreement shall be governed by
and construed in accordance with the internal laws of the Commonwealth of
Massachusetts without giving effect to any choice or conflict of law provision
or rule (whether of the Commonwealth of Massachusetts or any other jurisdiction)
that would cause the application of laws of any jurisdictions other than those
of the Commonwealth of Massachusetts. The Executive hereby irrevocably submits
to the jurisdiction of the Commonwealth of Massachusetts in any action or
proceeding to enforce the provisions of this Agreement, and waives the defense
of inconvenient forum to the maintenance of any such action or proceedings.
11.8 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of both parties and their respective successors and
assigns. The Company shall require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company to expressly assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform it if no such succession had taken place.
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The obligations of the Executive under this Agreement are personal and
shall not be assigned or transferred by him, other than his right to payments or
benefits, which may be transferred only by will or the laws of descent and
distribution. Upon the Executive's death, all rights of the Executive shall
inure to the benefit of and be enforceable by the Executive's beneficiary or
beneficiaries or his estate. If the Executive should die following the
Termination Date while amounts would still be payable to him had he continued to
live, all such amounts, unless otherwise provided, shall be paid to his
beneficiary or beneficiaries or his estate in accordance with the terms of this
Agreement.
11.9 No Waiver. No delay or omission by the Company in exercising any
right under this Agreement shall operate as a waiver of that or any other right.
A waiver or consent given by the Company on any one occasion shall be effective
only in that instance and shall not be construed as a bar or waiver of any right
on any other occasion.
11.10 Counterparts; Facsimile Signature. This Agreement may be
executed in two or more counterparts, each of which shall be deemed an original
but all of which together shall constitute one and the same instrument. This
Agreement may be executed by facsimile signature.
11.11 Pronouns. Whenever the context may require, any pronouns used in
this Agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular forms of nouns and pronouns shall include the plural,
and vice versa.
11.12 Headings. The section headings contained in this Agreement are
used for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
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11.13 Construction. The language used in this Agreement shall be
deemed to be the language chosen by the parties to express their mutual intent,
and no rule of strict construction shall be applied against any party.
11.14 Acknowledgment. The Executive states and represents that he has
had an opportunity to fully discuss and review the terms of this Agreement with
an attorney. The Executive further states and represents that he has carefully
read this Agreement, understands the contents herein, freely and voluntarily
assents to all of its terms and conditions, and signs his name of his own free
act.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year set forth above.
ARCH WIRELESS, INC.
By:________________________________
Xxxxx Xxxxxxxx
March ___, 2001
-----------------------------------
Xxxxxx X. Xxxxxxx
March ___, 2001
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