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EXHIBIT 10.19
EMPLOYMENT AGREEMENT
This Employment Agreement is made and entered into by and between
MachOne Communications, Inc. ("Company") and ▇▇▇▇▇ ▇▇▇▇▇▇ ("Employee") effective
as of February 26, 1998.
I. Definitions.
A. "COMMENCEMENT DATE" shall mean February 25, 1998.
B. "GOOD REASON" shall mean any of the following conditions: (i) a
decrease in Employee's base salary and/or bonus compensation; (ii) a
material, adverse change in Employee's title, authority,
responsibilities or duties; (iii) Company's relocation of the principal
place of Employee's employment more than fifty (50) miles; (iv)
Company's material breach of any provision of this Agreement; (v)
Company's failure to obtain the assumption of this Agreement by
Company's successor or assign; (vi) Company's failure to continue
Employee's opportunity to participate, on the same or more favorable
terms, in benefit or compensation programs in which Employee was
participating; or (vii) any purported termination of Employee's
employment for "material breach of contract" which is not effected
following a written notice and reasonable opportunity to cure.
C. Termination for "CAUSE" shall mean: (i) Employee's theft, dishonesty,
or falsification of any Company documents or records; (ii) Employee's
improper use or disclosure of Company's confidential or proprietary
information; (iii) any intentional act by Employee that has a materially
detrimental effect on Company's reputation or business; (iv) Employee's
failure to perform any reasonable assigned duties after written notice
from Company and a reasonable opportunity to cure; or (v) any uncured
material breach by Employee of any written agreement between Employee
and Company.
II. Position and Duties
Employee shall be employed by Company as its Vice President of
Engineering reporting only to the President effective on the Commencement Date.
In that position, Employee agrees to devote his full business time, energy and
skill to his duties at Company. Employee and Company agree that he will perform
such duties at Company's principal place of business, which shall be ▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇. These duties shall include the development of
aggregator modem and related software and hardware utilized by Company to
deliver its services to Company customers and affiliates.
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Term of Employment
Employee's employment with Company will be for no specified term, and
may be terminated by Company or Employee at any time, with or without cause.
Upon the termination of Employee's employment with Company for any reason,
neither Company nor Employee shall have any further obligation or liability
under this Agreement to the other, except as set forth in paragraphs V, VI and
VII below.
III. Base Salary
In the position as outlines above, Employee shall be paid a monthly Base
Salary of $10,000 per month ($120,000 on an annualized basis), subject to
applicable withholding, in accordance with Company's normal payroll procedures.
IV. Benefits
Employee shall be entitled to the benefits afforded to other members of
senior management under Employee's vacation, holiday and business expense
reimbursement policies. Employee shall be entitled to the medical and dental
benefits provided to other employees of Company.
A. Benefits Upon Voluntary Termination: In the event of Employee's
voluntary termination from employment with Company (unless otherwise set
forth herein), Employee shall be entitled to no compensation or benefits
from Company other than those earned through the date of such
termination or in the case of any stock options, vested through the date
of such termination.
B. Benefits Upon Other Termination. In the event of the termination of
Employee's employment by Company for the reasons set forth below, he
shall be entitled to:
1. Termination for Cause. If Employee's employment is terminated
by Company for Cause as defined above, Employee shall be
entitled to no compensation or benefits from Company other than
those earned under through the date of termination, or in the
case of any stock options, vested through the date of
termination.
2. Termination Without Cause. If Employee is terminated by
Company for any reason other than for Cause (or resigns for Good
Reason), including the death of Employee, Employee shall be
entitled to all accrued compensation (including pro-rated target
bonuses), salary and benefits for three months following
termination, plus continued vesting under the Options for a
period of six (6) months.
V. Stock Vesting Upon Death or Disability
If Employee's employment ceases as a result of death or disability, as
of the date of such termination: (i) the vested percentage of options or shares
for Company stock held by Employee at that time shall then be multiplied by a
factor of two (2) (but in no case shall the vested percentage exceed 100%).
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VI. Employee Inventions and Proprietary Rights Assignment.
Employee agrees to abide by the terms and conditions of Company's
standard Employee Inventions and Proprietary Rights Assignment Agreement as
executed by Employee and attached hereto as Exhibit A.
VII. Agreement Not To Compete Unfairly.
Employee agrees that in the event of his termination at any time and for
any reason, he shall not compete with Company in any unfair manner, including,
without limitation, using any confidential or proprietary information of Company
to compete with Company in any way. Employee agrees that for a period of one (1)
year after the date of the termination of his employment for any reason, he
shall not, either directly or indirectly, solicit the services, or attempt to
solicit the services, of any employee of Company to any other person or entity.
VIII. General Provisions.
A. Dispute Resolution: In the event of any dispute or claim relating to
or arising out of this Agreement (including, but not limited to, any
claims of breach of contract, wrongful termination or age, sex, race or
other discrimination), Employee and Company agree that all such disputes
shall be fully and finally resolved by binding arbitration conducted by
the American Arbitration Association in Santa ▇▇▇▇▇ County, California
in accordance with its National Employment Dispute Resolution rules, as
those rules are currently in effect (and not as they may be modified in
the future). Employee acknowledges that by accepting this arbitration
provision he is waiving any right to a jury trial in the event of such
dispute. Provided, however, that this arbitration provision shall not
apply to any disputes or claims relating to or arising out of the misuse
or misappropriation of trade secrets or proprietary information.
B. Attorneys' Fees: The prevailing party shall be entitled to recover
from the losing party its attorneys' fees and costs incurred in any
action brought to enforce any right arising out of this Agreement.
C. Interpretation: Employee and Company agree that this Agreement shall
be interpreted in accordance with and governed by the laws of the State
of California.
D. Successors and Assigns: This Agreement shall inure to the benefit of
and be binding upon Company and its successors and assigns. In view of
the personal nature of the services to be performed under this Agreement
by Employee, he shall not have the right to assign or transfer any of
his rights, obligations or benefits under this Agreement, except as
otherwise noted herein.
E. Entire Agreement: This Agreement constitutes the entire employment
agreement between Employee and Company regarding the terms and
conditions of his employment, with the exception of (i) the Employee
Inventions and Proprietary Rights Assignment Agreement described in
paragraph VII and (ii) any stock option agreements between Employee and
Company. To the extent that any provision of such option agreement
conflicts with this Agreement, this Agreement shall control. This
Agreement
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(including the documents described in (i) and (ii) herein) supersedes
all prior negotiations, representations or agreements between Employee
and Company, whether written or oral, concerning Employee's employment
by Company.
F. Validity: If any one or more of the provisions (or any part thereof)
of this Agreement shall be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining
provisions (or any part thereof) shall not in any way be affected or
impaired thereby, while giving the greatest possible effect to the
parties' intent and the exchange of consideration set forth in the
Agreement.
G. Modification: This Agreement may only be modified or amended by a
supplemental written agreement signed by Employee and Company.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year written below.
MACHONE COMMUNICATIONS, INC.
Date: 2/26/98 By: ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Its: President
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Date: Signature: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Printed Name: ▇▇▇▇▇ ▇▇▇▇▇▇
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