EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into this 4th day of
September, 2001, between Sonus Corp., a Yukon Territory, Canada, corporation
("Corporation"), and Xxxxxx X. Xxxxx ("Executive").
RECITALS
A. Executive is currently Vice President of Network of Corporation.
Executive is an innovative, highly experienced, and knowledgeable executive
whose creativity, expertise, and effort have been instrumental in the
development of the business and growth of Corporation.
B. Corporation recognizes that the future growth, profitability, and
success of the business of Corporation and its subsidiaries require, and will be
substantially and materially advanced by, the continued employment of Executive.
Corporation desires, therefore, to promote Executive to the position of
President-Sonus Network and secure for Corporation and its affiliates the
continued benefit of Executive's experience, ability, and leadership. In order
to retain the services of Executive and to maximize the period of his continued
availability, and in recognition of his continuing contribution to Corporation's
success, Corporation desires to offer Executive the compensation, amenities, and
other benefits that executives of comparable experience and ability generally
receive.
AGREEMENT
In consideration of the mutual covenants and agreements contained herein,
the parties agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following terms have the meanings set forth
in this
"Affiliate" - Any person, firm, corporation, association, organization, or
unincorporated trade or business that, now or hereinafter, directly or
indirectly, controls, is controlled by, or is under common control with
Corporation.
"Board" - The board of directors of Corporation.
"Cause" - Cause for termination of employment means:
(i) A material act of fraud or dishonesty by Executive within the
course of performing his duties for Corporation or its Affiliates;
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(ii) Gross negligence or intentional misconduct by Executive in
performing material duties for Corporation or its Affiliates, or
unjustifiable neglect by Executive of the performance of material duties
for Corporation or its Affiliates;
(iii) Commission of an act (or failure to take an action)
intentionally against the interest of Corporation or its Affiliates that
causes Corporation or an Affiliate material injury; or
(iv) An act of serious moral turpitude that causes Corporation or an
Affiliate material injury.
Notwithstanding the foregoing, Executive will not be deemed to have been
terminated for Cause unless and until there has been delivered to Executive a
copy of a resolution duly adopted by the affirmative vote of not less than a
majority of the entire membership of the Board (excluding Executive if at the
time he is member of the Board), at a meeting of the Board called and held for
that purpose, finding that, in the good faith opinion of the Board, Executive
was guilty of conduct constituting Cause as defined in this Agreement and
specifying the particulars thereof in detail. Executive must have been given
reasonable notice of such meeting and Executive, together with his counsel, must
have been given an opportunity to be heard before the Board at the meeting. This
provision will not be deemed to restrict the authority, discretion, or power of
the Board, by any action taken in compliance with Corporation's articles of
incorporation and bylaws, to remove Executive as an officer or director of
Corporation, with or without Cause. Rather, the foregoing provisions merely
define, for purposes of Executive's contractual rights and remedies under this
Agreement, the circumstances in which termination of Executive's employment will
constitute termination for Cause.
"Change in Control" - A change in control of Corporation means:
(i) The acquisition by an Person of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of 50 percent or
more of the combined voting power of the then outstanding Voting
Securities; provided, however, that for purposes of this paragraph (i),
the following acquisitions will not constitute a Change of Control: (A)
any acquisition directly from Corporation, (B) any acquisition by
Corporation, (C) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by Corporation or any corporation
controlled by Corporation, (D) any acquisition by Warburg, Xxxxxx
Ventures, L.P. ("WPV') or by any Person that, now or hereinafter, directly
or indirectly controls, is controlled by, is under common control with, or
is otherwise an affiliate of, WPV, or (E) any acquisition by any
corporation pursuant to a transaction which complies with clauses (A),
(B), and (C) of paragraph (iii) below; or
(ii) individuals who, as of the date of this Agreement, constitute
the Board (the "Incumbent Board") cease for any reason to constitute at
least
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a majority of the Board; provided, however, that any individual becoming a
director subsequent to the date of this Agreement whose election, or
nomination for election by Corporation's shareholders, was approved by a
vote of at least a majority of the directors then comprising the Incumbent
Board will be considered as though such individual were a member of the
Incumbent Board, but excluding, for this purpose, any such individual
whose initial assumption of office occurs as a result of an actual or
threatened election contest with respect to the election or removal of
directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board; or
(iii) consummation of a reorganization, merger, or consolidation or
sale or other disposition of all or substantially all of the assets of
Corporation (a "Business Combination") in each case, unless, following
such Business Combination, (A) all or substantially all of the individuals
and entities who were the beneficial owners of the Voting Securities
outstanding immediately prior to such Business Combination beneficially
own, directly or indirectly, more than 50 percent of, respectively, the
then outstanding shares of common stock and the combined voting power of
the then outstanding voting securities entitled to vote generally in the
election of directors, as the case may be, of the corporation resulting
from such Business Combination (including, without limitation, a
corporation which as a result of such transaction owns Corporation or all
or substantially all of Corporation's assets either directly or through
one or more subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such Business Combination, of the Voting
Securities, (B) no Person (excluding WPV, any employee benefit plan (or
related trust) of Corporation or such corporation resulting from such
Business Combination) beneficially owns, directly or indirectly, 50
percent or more of, respectively, the then outstanding shares of common
stock of the corporation resulting from such Business Combination or the
combined voting power of the then outstanding voting securities of such
corporation except to the extent that such ownership existed prior to the
Business Combination and (C) at least a majority of the members of the
board of directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the time of the
execution of the initial agreement, or of the action of the Board,
providing for such Business Combination.
"Code" - The Internal Revenue Code of 1986, as amended.
"Compensation Plan" - Any compensation plan such as a plan providing for
incentive or deferred compensation, stock options or other stock or
stock-related grants or awards, or any employee benefit plan such as a thrift,
investment, savings, pension, profit sharing, medical, disability, accident,
life insurance, cafeteria, or relocation plan or any other plan, policy, or
program of Corporation providing similar types of benefits to employees of
Corporation.
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"Competitive Entity" - A Person, firm, or entity engaged (in the United
States or Canada) in the manufacture of hearing aids or in the national or
regional retail provision or franchising of audiology services and/or dispensing
of hearing aids or in any managed-care for hearing health benefits.
"Disability" or "Disabled" - Inability to perform duties with Corporation
on a full-time basis by reason of "Total Disability" within the meaning of
Corporation's Group Long Term Disability Insurance Plan or any successor plan or
program maintained by Corporation. In the event Corporation no longer maintains
a similar plan or program, Disability or Disabled means inability to engage in
any substantial gainful activity by reason of any medically determinable
physical or mental impairment.
"Effective Date" - September 4, 2001.
"Exchange Act" - The Securities Exchange Act of 1934, as amended.
"Good Reason" - For all purposes of this Agreement, termination by
Executive of his employment with Corporation for "Good Reason" during the Term
means termination based on any of the following:
(a) A change in Executive's status or position or positions with
Corporation that represents a material demotion from Executive's status or
position or positions as of the date of this Agreement or as a material
change in Executive's duties or responsibilities that is inconsistent with
such status or position or positions;
(b) A reduction by Corporation in Executive's Base Salary (as in
effect on the date of this Agreement or as increased at any time during
the Term of this Agreement); or
(c) The failure of Corporation to continue Executive's participation
(on terms comparable to those for other key executives of Corporation) in
any Plans or vacation programs or arrangements in which other key
executives of Corporation are participants (unless such failure to
continue is caused by action or status of Executive).
(d) Corporation's requiring Executive to be based more than 35 miles
from Corporation's principal executive office in Portland, Oregon, except
for required travel on Corporation's business to an extent substantially
consistent with Executive's business travel obligations as of the date of
this Agreement.
"Other Agreement" - A plan, arrangement, or agreement pursuant to which an
Other Payment is made.
"Other Payment" - Any payment or benefit payable to Executive in
connection with a Change in Control of Corporation pursuant to any plan,
arrangement, or agreement
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(other than this Agreement) with Corporation, any person whose actions result in
a change in control of Corporation, or any person affiliated with Corporation or
such person.
"Person" - Any individual, corporation, partnership, limited liability
company, group, association, or other "person," as such term is used in Section
13(d)(3) or Section 14(d) of the Exchange Act, other than Corporation or any
employee benefit plan or plans sponsored by Corporation.
"Severance Payment" - The severance payment described in Section 5.4 of
this Agreement.
"Term" - The period commencing on the Effective Date and ending on August
31, 2003; provided, however, that the Term will automatically be extended to
August 31, 2004 (and thereafter will be similarly extended in additional
one-year extensions) unless, on or before March 1, 2003 (or, if the Term has
been extended, March 1 of the last year of the Term), either Corporation or
Executive gives written notice of non-extension of the Term.
"Termination Benefits" - The payments and benefits described in Section 5
of this Agreement.
"Termination Date" - The date Executive's employment with Corporation is
terminated for any reason by Corporation or by Executive.
"Total Payments" - All payments or benefits payable to Executive in
connection with a Change in Control of Corporation, including the Severance
Payment and Other Payments.
"Voting Securities" - Corporation's issued and outstanding securities
ordinarily having the right to vote at elections of Corporation's Board.
2. EMPLOYMENT.
Corporation hereby agrees to employ Executive, and Executive hereby
accepts employment with Corporation during the Term on the terms and conditions
set forth in this Agreement. Notwithstanding any other provision of this
Agreement, Executive is an employee at will of Corporation and Corporation
reserves the right to terminate Executive's employment at any time for any
reason or for no reason. The provisions of this Agreement dealing with
termination without Cause or for Good Reason are intended to provide contractual
benefits and do not limit Corporation's power to treat Executive as an employee
at will.
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3. EXECUTIVE DUTIES.
3.1 Position and Duties. Executive agrees to render services to
Corporation as President-Sonus Network and as an executive officer of
Corporation and such of Corporation's Affiliates as the parties to this
Agreement mutually agree, including Affiliates that may be formed or acquired
subsequent to the Effective Date. Executive will have responsibility for all
aspects of the Sonus Network division of Corporation's business and will have
such executive and managerial duties as Corporation's Chief Executive Officer
prescribes from time to time. Executive will report directly to the
Corporation's Chief Executive Officer.
3.2 Exclusive Employment. Executive agrees that during the Term:
(a) Executive will devote substantially all his regular business
time (except during periods of vacation to which he is entitled, illness
and approved leaves of absence) solely and exclusively to the business of
Corporation, whether such business is operated directly by Corporation or
through one or more Affiliates of Corporation;
(b) Executive will diligently carry out his responsibilities under
this Agreement;
(c) Executive will not, directly or indirectly, without the prior
approval of the Board, provide services on behalf of any Competitive
Entity or on behalf of any subsidiary or affiliate of any such Competitive
Entity, as an employee, consultant, independent contractor, agent, sole
proprietor, partner, member, joint venturer, corporate officer, or
director;
(d) Executive will not acquire by reason of purchase the ownership
of more than 1 percent of the outstanding equity interest in any
Competitive Entity; and
(e) Except as expressly set forth above, Executive may engage in
personal business and investment activities.
3.3 Corporation Reserved Rights. Corporation reserves, on its own behalf
and on behalf of its shareholders, the right to elect, from time to time, any
person to its Board, to appoint any person as an officer of Corporation, and to
remove any officer or director, including Executive, in any manner and upon the
basis or bases presently or subsequently provided for by its articles of
incorporation and bylaws. Nothing in this Agreement will be deemed to constitute
any restriction on the authority, discretion, or power of the Board, but rather
will only give Executive contractual rights and remedies.
3.4 Proprietary Information. Executive acknowledges in the course of
Executive's employment with Corporation, Executive will learn trade secrets and
confidential information of Corporation, which if known to competitors could
damage the
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business of Corporation. Such confidential information includes, but is not
limited to, some or all of the following categories of non-public information
("Proprietary Information"):
(a) Financial information including, but not limited to information
relating to assets, revenues, expenses, prices, pricing structures, volume
of purchases or sales or other financial data of Corporation, or to
particular products, services, geographic areas, or time periods;
(b) Supply and service information including, but not limited to
information relating to suppliers' names and addresses, terms of supply
and service contracts or of particular transactions, and related
information about potential suppliers to the extent that such information
is not generally known to the public, and to the extent that the
combination of suppliers or use of a particular supplier, though generally
known or available, yields advantages to Corporation the details of which
are not generally known;
(c) Marketing information including, but not limited to information
relating to details of ongoing or proposed marketing programs or
agreements by or on behalf of Corporation, sales forecasts, advertising
formats and methods or results of marketing efforts or information about
impending transactions;
(d) Personnel information including, but not limited to information
relating to personal or medical histories, compensation or other terms of
employment, actual or proposed promotions, hirings, resignations,
disciplinary actions, terminations or reasons therefore, training methods,
performance, or other information concerning Executives of Corporation;
and
(e) Non-public information, including addresses and background
information, regarding affiliated audiologists and managed care
organizations having relationships with Corporation and the terms and
conditions of agreements with such parties.
Executive agrees to keep all Proprietary Information confidential. Except
as may be necessary in the performance of Executive's duties on behalf of
Corporation, Executive will make no use of and will not communicate or divulge
to any party whatsoever any Proprietary Information. Executive will not at any
time after Executive's employment with Corporation terminates use any
Proprietary Information for Executive's own benefit or on behalf of any person,
firm, partnership, association, corporation, or other party whatsoever. This
covenant shall not apply to any information that by means other than Executive's
deliberate or inadvertent disclosure becomes well known to the public or to
disclosure compelled by judicial or administrative proceedings after Executive
notifies and affords Corporation the opportunity to seek confidential treatment
of compelled disclosures.
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4. COMPENSATION AND BENEFITS.
4.1 Base Salary. As compensation for the performance of Executive's
services during the Term, inclusive of services as an officer and director of
Corporation's Affiliates, Corporation will pay to Executive in accordance with
its normal payroll practices an annual salary of $105,000 per year (the "Base
Salary"), subject to such increases (but not decreases) as are determined from
time to time by the Board, or a compensation committee designated by the Board.
Executive's Base Salary shall increase to $115,000 as of October 1, 2002, in the
event that for the fiscal year ended July 31, 2002, net revenue and net profit
for the Sonus Network division of Corporation are not less than $18 million and
$8 million, respectively. Executive's Base Salary shall increase to $125,000 as
of October 1, 2003, in the event that for the fiscal year ended July 31, 2003,
net revenue and net profit for the Sonus Network division of Corporation are not
less than $24 million and $10 million, respectively.
4.2 Annual Bonus. During the Term of this Agreement, beginning with
Corporation's fiscal year beginning August 1, 2001, Executive will be entitled
to participate in such bonus and profit-sharing plans as Corporation may provide
for its senior executive employees generally.
4.3 Stock Options. Executive has been granted options to purchase 50,000
shares of the Corporation's common stock under the Corporation's Stock Award
Plan (the "Plan") at a price equal to the fair market value of the common stock
on August 3, 2001. On the Effective Date, Executive will be granted options to
purchase an additional 100,000 shares of the Corporation's common stock under
the Plan at a price equal to the fair market value of the common stock on the
Effective Date. The previous grant of 50,000 options described above will vest
as to 20% of the shares on August 3, 2002, and thereafter as to an additional
20% of the shares on each succeeding anniversary of August 3, 2002 until August
3, 2006, provided Executive continues to be employed by the Corporation. The
subsequent grant of 100,000 options will vest as to 20% of the shares on each of
the first through the fifth anniversaries of the Effective Date, provided
Executive continues to be employed by the Corporation.
The options will become immediately and fully exercisable in the event that at
any time following a Change in Control of Corporation, Executive is terminated
without Cause or the Executive resigns for Good Reason.
The options will be subject to terms of the Plan and a customary award agreement
for options granted under the Plan.
Vested options will remain exercisable for 90 days after termination of
employment or, in the case of termination due to death or Disability, for one
year.
4.4 Other Benefits. During the term of this Agreement, Executive will be
entitled to participate in all Compensation Plans (including Compensation Plans
adopted following the Effective Date) covering Corporation's key executive and
managerial employees (as described in Corporation's employee manual, as amended
from time to
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time), including, without limitation, Compensation Plans providing medical,
disability, and life insurance benefits, and vacation pay. During the term of
this Agreement, Corporation shall provide Executive with monthly parking
privileges for one car at the U.S. Bancorp parking garage located at S.W. Fourth
and Pine in Portland, Oregon.
4.5 Expenses. Executive is authorized to incur on behalf of Corporation,
and Corporation will directly pay or will fully reimburse Executive for all
customary and reasonable out-of-pocket expenses incurred for promoting,
pursuing, or otherwise furthering the business of Corporation or its Affiliates.
5. TERMINATION OF AGREEMENT.
5.1 Death. If Executive dies during the Term, Corporation will pay to
Executive's representative his Base Salary through the date of death. All
benefits, including death benefits, to which Executive is then entitled under
Compensation Plans in which Executive is a participant will be payable as
provided in those Compensation Plans. This Agreement will terminate as of the
date of death and Corporation will have no further obligations to Executive
under this Agreement.
5.2 Disability. In the event Executive becomes Disabled during the Term,
Executive will remain an employee of Corporation and be entitled to receive his
Base Salary until Executive becomes eligible to receive benefits under
Corporation's Group Long Term Disability Insurance Policy (the "Disability
Benefits Date"). All benefits, including disability benefits, to which Executive
is then entitled under Compensation Plans in which Executive is a participant
will be payable as provided in those Compensation Plans. The Agreement will
terminate as of the Disability Benefits Date and Corporation will have no
further obligations to Executive under this Agreement.
5.3 Termination for Cause or Voluntary Termination Without Good Reason.
During the Term of this Agreement, pending the determination by the Board
whether or not Cause exists for termination of Executive's employment pursuant
to the definition of Cause in Section 1, the Board may suspend Executive or
relieve Executive of his duties as an officer, but may not terminate Executive's
employment. Upon such determination that Cause exists, Corporation may terminate
Executive's employment. If during the Term Corporation terminates Executive's
employment for Cause or Executive voluntarily terminates employment other than
for Good Reason, Corporation will pay Executive his Base Salary through the
effective date of such termination. Executive will not be entitled to any annual
bonus, or any prorated portion of any annual bonus, for the fiscal year in which
the Termination Date occurs. This Agreement will terminate as of the Termination
Date, and Corporation will have no further obligations to Executive under this
Agreement. All accrued benefits to which Executive is then entitled under
Compensation Plans in which he is a participant will be payable as provided in
those Compensation Plans.
5.4 Termination Without Cause or With Good Reason. If Executive's
employment with Corporation is terminated (other than for Disability or upon
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Executive's death) during the Term by Corporation without Cause or by Executive
with Good Reason, Corporation will pay Executive, in lieu of any salary payments
to Executive for periods subsequent to the Termination Date, an amount of
severance pay (the "Severance Payment") equal to one-half of Executive's total
compensation (Base Salary plus bonus) for the 12 calendar months immediately
preceding the month of the Termination Date (payable in six substantially equal
monthly installments commencing on the first day of the first calendar month
beginning after the Termination Date).
5.5 No Mitigation. Executive will not be required to mitigate the amount
of any payment provided for in this Section 5 by seeking other employment or
otherwise.
5.6 Noncompetition Following Termination. Executive acknowledges that the
agreements and covenants contained in this Section 5.6 are essential to protect
the value of Corporation's business and assets and that, by his employment with
Corporation and its subsidiaries, Executive will obtain such knowledge,
contacts, know-how, training and experience, and that such knowledge, contacts,
know-how, training and experience could be used to the substantial advantage of
a Competitive Entity and to Corporation's substantial detriment. Therefore
Executive agrees that:
(a) In the event Executive's employment is terminated (whether by
Corporation or by Executive) for any reason, Executive will not, for a
period of one year from the Termination Date, participate (as an owner,
employee, officer, partner, member, shareholder, director, consultant, or
otherwise) in any Competitive Entity. The benefits payable under this
Agreement, including without limitation Corporation's obligation to pay
severance benefits pursuant to Section 5.4 of this Agreement are in
consideration of Executive's performance of the convenants of this Section
5.6.
(b) Executive acknowledges that pursuant to the terms of this
Agreement, he is receiving a "bona fide advancement" in terms of his
employment with Corporation within the meaning of ORS 653.295. Executive
further acknowledges that he is receiving consideration under this
Agreement in addition to such consideration as to which he would be
entitled in the absence of this Agreement, and he acknowledges that his
agreement to the provisions of this Section 5.6 is a necessary condition
for Corporation to enter into this Agreement and pay the consideration
provided for in this Agreement.
(c) Executive acknowledges that Corporation's remedy at law for a
breach by him of the provisions of this Section 5.6 will be inadequate.
Accordingly, in the event of the breach by Executive of any provision of
this Section 5.6, Corporation will be entitled to injunctive relief in
addition to any other remedy it may have. If any of the provisions of, or
covenants contained in, this Section 5.6 are hereafter construed to be
invalid or unenforceable in any jurisdiction, the same will not affect the
remainder of the provisions of the enforceability thereof in any other
jurisdiction, which will be given full effect, without regard to the
invalidity or unenforceability in such other jurisdiction. If
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any of the provisions of, or covenants contained in, this Section 5.6 are
held to be unenforceable in any jurisdiction because of the duration or
geographical scope of such provision or covenant, Executive and
Corporation agree that the court making such determination will have the
power to reduce the duration or geographical scope of such provision or
covenant and that, in its reduced form, such provision or covenant will be
enforceable; provided, however, that the determination of such court will
not affect the enforceability of this Section 5.6 in any other
jurisdiction.
6. EFFECT OF CHANGE IN CONTROL.
The Severance Payment payable under Section 5.4 of this Agreement is not
conditioned upon a Change in Control of Corporation but is payable upon any
termination described in that Section, whether or not a Change in Control has
occurred. Thus, it is the parties' mutual intention that the Severance Payment
is not to be treated as Total Payments.
7. SUCCESSORS; BINDING EFFECT.
7.1 Corporation. This Agreement will inure to the benefit of, and be
binding upon, any corporate or other successor or assignee of Corporation that
acquires, directly or indirectly, by merger, consolidation or purchase, or
otherwise, all or substantially all the business or assets of Corporation.
Corporation will require any such successor, by an agreement in form and
substance reasonably satisfactory to Executive, expressly to assume and agree to
perform this Agreement in the same manner and to the same extent as corporation
would be required to perform if no such succession had take place.
7.2 Executive. This Agreement will inure to the benefit of and be
enforceable by Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees, and legatees. If
Executive should die while any amount would still be payable to Executive
hereunder if Executive had continued to live, all such amounts, unless otherwise
provided herein, will be paid in accordance with the terms of this Agreement to
Executive's devisee, legatee, or other designee or, if there is no such
designee, to Executive's estate.
8. WAIVER AND MODIFICATION.
Any waiver, altercation, or modification of any of the terms of this
Agreement will be valid only if made in writing and signed by the parties to
this Agreement. No waiver by either of the parties of its rights under this
Agreement will be deemed to constitute a waiver with respect to any subsequent
occurrences or transactions hereunder unless the waiver specifically states that
it is to be construed as a continuing waiver.
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9. GOVERNING LAW; SEVERABILITY.
The validity, interpretations, construction, and performance of this
Agreement will be governed by and construed in accordance with the law of the
state of Oregon. Any provision of this Agreement that is prohibited or
unenforceable will be ineffective only to the extent of that prohibition or
unenforceability without invalidating the remaining provisions of this
Agreement.
10. NOTICES.
For the purposes of this Agreement, notices and all communications
provided for in this Agreement must be in writing and will be deemed to have
been given upon the earlier of (i) personal delivery or (ii) three business days
after being mailed by United States registered mail, return receipt requested,
with postage prepaid, addressed to the respective party at the address set forth
below (or to such other address as either party may have furnished to the other
in writing in accordance with this Section 10, except that notices of change or
address will be effective only upon receipt):
To Corporation: Sonus Corp.
000 X.X. Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxx, XX 00000
Attn: General Counsel
To Executive: Xxxxxx X. Xxxxx
0000 X.X. 000xx
Xxxxxxxxxx, Xxxxxxxxxx 00000
11. HEADINGS.
Headings herein are for convenience only, are not a part of this
Agreement, and are not to be used in construing this Agreement.
12. ARBITRATION.
Any dispute or claim that arises out of or that relates to this Agreement
or to the interpretation, breach, or enforcement of this Agreement, must be
resolved by mandatory arbitration conducted in Portland, Oregon, in accordance
with the then effective arbitration rules of the American Arbitration
Association and any judgment upon the award rendered pursuant to such
arbitration may be entered in any court having jurisdiction thereof.
13. ATTORNEYS' FEES.
In the event of any suit or action or arbitration proceeding to enforce or
interpret any provision of this Agreement (or which is based on this Agreement),
the prevailing
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party will be entitled to recover, in addition to other costs, reasonable
attorneys' fees in connection with such suit, action, arbitration, and in any
appeal. The determination of who is the prevailing party and the amount of
reasonable attorneys' fees to be paid to the prevailing party will be decided by
the arbitrator or arbitrators (with respect to attorneys' fees incurred prior to
and during the arbitration proceedings) and by the court or courts, including
any appellate courts, in which the matter is tried, heard, or decided, including
the court which hears any exceptions made to an arbitration award submitted to
it for confirmation as a judgment (with respect to attorneys' fees incurred in
such confirmation proceedings).
14. EFFECT OF TERMINATION OF AGREEMENT.
If this Agreement is terminated, all rights and benefits that have become
vested hereunder prior to termination will remain in full force and effect, and
the termination of the Agreement will not be construed as relieving any party
from the performance of any accrued obligation incurred to the other under this
Agreement.
15. ENTIRE AGREEMENT.
This Agreement constitutes and embodies the entire understanding and
agreement of the parties hereto relating to the matters addressed in this
Agreement. Except as otherwise provided in this Agreement, there are no other
agreements or understandings, written or oral, in effect between the parties
relating to the matters addressed herein.
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as
of the date first written above.
CORPORATION: SONUS CORP.
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Xxxxxx X. Xxxx
Chief Executive Officer
EXECUTIVE: /s/ Xxxxxx X. Xxxxx
------------------------------------
Xxxxxx X. Xxxxx
