Exhibit 6
EMPLOYMENT AND NON-COMPETITION AGREEMENT
This Employment and Non-Competition Agreement is entered into on this 6th
day of December, 2000 between Blackbird, Inc. (the "Company"), and ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ("Employee").
WHEREAS, pursuant to the Agreement and Plan of Merger between Nokia
Corporation a company organized under the laws of the Republic of Finland
("Parent"), Blackbird Acquisition, Inc., a Delaware corporation and wholly-owned
subsidiary of Parent ("Purchaser"), and the Company, the Parent will acquire the
Company upon the terms and conditions set forth in the Agreement and Plan of
Merger; and
WHEREAS, Employee is a substantial shareholder of the Company and the
Agreement and Plan of Merger will result in the acquisition by Parent and
Purchaser of all of the issued and outstanding capital stock of the Company,
including all shares possessed by Employee; and
WHEREAS, the Agreement and Plan of Merger requires that certain key
employees of the company execute employment and non-competition agreements and,
accordingly, as a condition and as an inducement to Parent to enter into the
Agreement and Plan of Merger, the Employee has agreed to enter into this
Employment and Non-competition Agreement which restricts his future activities.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
convenants, terms and conditions set forth herein and in the Agreement and Plan
of Merger, and other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, THE PARTIES AGREE AS FOLLOWS:
1. Employment
----------
The Company shall continue the employment of Employee and Employee accepts
continued employment with the Company in accordance with the terms and
conditions set forth in this Agreement. Employee agrees to devote his full work
time, skill, knowledge, and attention to the business of the Company and the
performance of his duties under this Agreement and further agrees to abide by
all of the Company's decisions and policies. The Employee may continue to serve
on the board of directors of Rapid5 Networks and as an advisory board member for
Xalted Networks and may continue to engage in charitable and civic activities
provided his service on the board of directors of such companies or his civic
and charitable activities do not impede Employee's ability to diligently perform
his job duties and provided such activities do not create a conflict of interest
or violate the non-competition and confidentiality provisions of this
Agreement. Employee may serve on the board of directors of other companies if
he obtains written consent from his manager.
2. Term
----
This Agreement is contingent on and shall become effective on the closing
date of the transaction contemplated in the Acquisition Agreement ("Effective
Date"). This term of this Agreement is for a period of two (2) years from the
Effective Date. However, this Agreement may be terminated earlier, as provided
in paragraph 7. This Agreement shall not become effective if the closing does
not occur under the Acquisition Agreement. If the Employee's employment shall
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continue beyond the term of this Agreement, the employment will continue to be
on an "at-will" basis.
3. Duties
------
Employee shall perform such duties as may be assigned by the Company from
time to time and the Employee's initial position shall be vice president of
small office systems for the IP routing group (SOS/IPRG). In this capacity,
Employee will, among other things, oversee and ensure integration of Blackbird
into the Parent (or into one of its affiliates); oversee research and
development, quality control and product management for SOS/IPRG; and oversee
California and India based engineering teams for SOS/IPRG, including software,
hardware, and quality control. Employee agrees that he will not have
responsibility over sales or marketing, finance, or manufacturing for SOS/IPRG.
4. Compensation
------------
Employee shall receive compensation from the Company for his employment as
follows:
a. Base Salary. Employee's base, annual gross salary shall be $ USD
-----------
200,000 payable in the usual and customary methods and times
established by the Company.
b. Incentives. Employee will be eligible to participate in all standard
----------
Employee compensation and incentive plans. Employee's eligibility for
benefits is subject to any terms and limitations set forth under the
Nokia Global Bonus & Incentive Plan Policy. Employee will participate
in the Nokia/Blackbird Acquisition Retention Plan.
5. Benefits
--------
Employee will be eligible to participate in all standard Employee benefit
programs, including vacation, made available by the Company to other Company
Employees of comparable position. Employee's eligibility for benefits is
subject to any terms and limitations set forth in the Employee benefit plans.
6. Expense Reimbursement
---------------------
Employee shall be entitled to reimbursement for reasonable and necessary
"out of pocket" business expenses in accordance with the Company's usual and
ordinary practices.
7. Termination of Agreement and Compensation Upon Termination
----------------------------------------------------------
a. Notwithstanding paragraph 2, Employee's employment may be terminated
by the Company at any time at the option of the Company for any
reason or no reason at all; provided, however, that termination of
this Agreement shall not impair Employee's right, if any, to
compensation provided under paragraph 7(e). This Agreement shall
automatically terminate on the death of Employee.
b. Employee may terminate this Agreement at any time upon giving 30 days
notice in writing to the Company.
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c. The Employee will, at the time of separation, receive information
regarding health insurance continuation and retirement benefits under
federal law. To the extent that Employee has such rights, nothing in
this Agreement will impair those rights.
d. Except as specifically provided in paragraphs 7(e) and (f), no
separation pay shall be payable in the event of the termination of
this Agreement prior to the completion of the term of this Agreement
and Employee shall only be entitled to his base salary earned prior
to the date of termination computed pro rata up to and including the
date of termination and to his accrued vacation as of the effective
date of termination.
e. In the event the Employee is terminated during the term of this
Agreement without "Good Cause" by the Company the Company will pay
the Employee a lump sum amount equivalent to twelve (12) months of
base pay (subject to applicable employment and tax withholdings) and
the Company will accelerate 50% of unvested stock options under the
Nokia/Blackbird Acquisition Retention Plan. If Employee elects health
insurance continuation (COBRA), the Company agrees that it will pay
the premiums for such coverage for twelve (12) months from the date
of his separation from the Company. For purposes of this Agreement,
"Good Cause" for termination shall include: breach of paragraphs 8,
9, 10 and 11 of this Agreement; willful and serious misconduct in the
performance of his job responsibilities; conviction of any felony;
material dishonesty; committing a fraud against the company; engaging
in conduct demonstrably injurious to and has a material detrimental
affect on the Company or its business or reputation; breach of
fiduciary duty; or inability to perform the essential functions of
his position or any other material breach of any provision of the
Employment Agreement, which inability to perform or material breach
is not cured within ten (10) days following written notice from the
Company.
f. Subject to paragraph 7(g) and 7(h), in the event Employee terminates
this Agreement with Employee's Good Reason, the Company will pay the
Employee a lump sum amount equivalent to twelve (12) months of base
pay (subject to applicable employment and tax withholdings) and the
Company will accelerate 50% of unvested stock options under the
Nokia/Blackbird Acquisition Retention Plan. Additionally, if Employee
elects COBRA, the Company agrees that it will pay the premiums for
such coverage for twelve (12) months from the date of his separation
from the Company. For purposes of this Agreement, Employee's Good
Reason is defined as (a) a substantial reduction in Employee's
function or responsibilities without the Employee's written consent
or (b) a relocation of Employee's principal place of employment by
more than 30 miles without the Employee's written consent or (c) a
reduction of Employee's salary during the term of this Agreement. The
parties agree that a mere change in job titles shall not constitute a
substantial reduction in function or responsibilities.
g. No separation pay shall be payable under paragraph 7(f) of this
Agreement if the reduction in Employee's function and
responsibilities is due to substantial growth of the Company,
expansion of the Company into additional lines of business or markets
(including expansion into businesses of any Nokia affiliate), or
Company consolidations (or reorganizations) of operations, not
specifically targeted at the Employee, with the operations of any
present or future parent, affiliate, or subsidiary. Employee shall
not have the right to terminate this Agreement for Employee's Good
Reason and the Company shall not be obligated to pay any separation
pay to Employee under paragraph 7(f) unless:
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(i) the Employee has provided the Company notice in writing of the
acts giving rise to the claim of right to termination for
Employee's Good Reason within thirty (30) days after the
occurrence of any such acts;
(ii) and Employee provides the Company thirty (30) calendar days in
which to cure the conduct giving rise to the claim of right to
termination for Employee's Good Reason.
h. In the event the Company expressly waives in whole or in part in
writing the non-compete/non-solicitation provisions in paragraphs
10(c)(i), (c)(ii), and (c)(iii) the Company's separation payment under
paragraphs 7(e) and (f) shall be limited to six (6) months of base pay
and, if the Employee elects COBRA, will pay the premiums for such
coverage for six (6) months from the date of his separation from the
Company.
i. Paragraphs 8, 9, 10, 11, 12, 13, 18, and 19 of this Agreement will
survive and continue to be effective notwithstanding the termination of
this Agreement.
j. A termination of this Agreement does not in any way impair the
Employee's obligations under paragraph 10 of this Agreement unless the
covenants therein have been waived by the company expressly in writing
in accordance with the terms of this Agreement.
8. Proprietary Information & Confidentiality
-----------------------------------------
a. Employee understands that his employment with the Company creates a
relationship of confidence and trust with respect to any information
of a confidential or secret nature that he has acquired or will
acquire as a result of his employment with the Company that relates
to the business of the Company or to the business of any parent,
subsidiary, affiliate, customer or supplier of the Company or any
other party with whom the Company agrees to hold information of such
party in confidence ("Proprietary Information"). Such Proprietary
Information includes but is not limited to inventions, trade secrets,
product specifications, inventions, designs, sketches, graphs,
drawings, systems, computer software and programs, current and
planned research and development, customer requirements, marketing
plans, product plans, business strategies, financial information,
forecasts, and customer lists.
b. At all times, both during his employment and after its termination,
Employee will keep and hold all Proprietary Information in strict
confidence and trust, and he will not use or disclose any Proprietary
Information without the prior written consent of the Company, except
as may be necessary to perform his duties as an Employee of the
Company for the benefit of the Company. Upon termination of his
employment with the Company, Employee will promptly deliver to the
Company all documents and materials of any nature pertaining to his
work with the Company and he will not take with him any documents or
materials or copies containing any Proprietary Information. At the
Company's request, Employee will sign necessary confidentiality
Agreements required in accordance with non-disclosure Agreements
between the Company and any third-party for the purpose of protecting
third-party confidential information.
c. It shall not be a violation of this Agreement for Employee, after the
termination of employment with the Company, to use or disclose
information which is generally
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known to the public at the time of disclosure or later becomes so
generally known through no fault of the Employee. The burden of
showing that information is generally known to the public shall rest
with the Employee. Nothing in this provision, however, shall be
construed to affect the rights and obligations contained in paragraph
10 of this Agreement.
9. No Breach of Prior Agreement
----------------------------
Employee represents that his performance of all the terms of this Agreement
and his duties as an Employee of the Company will not breach any invention
assignment, proprietary information or similar Agreement with any former
employer or other party. Employee also represents that he will not use in the
performance of his duties for the Company any documents or materials of a former
employer that are not generally available to the public or have not been legally
transferred to the Company.
10. Duty Not to Compete and Non-Solicitation
-----------------------------------------
a. Definitions
-----------
(i) "Competitor" means any person or entity which is involved in
the research, development, manufacture, sale, installation,
maintenance, merchandising or promotion of any "Competitive
Product" within the "Territory", including the following
entities: Cosine, Netscreen, ▇▇▇▇▇▇▇▇▇.▇▇▇, and Cacheflow.
(ii) "Competitive Product" means IP Security Appliance Products
(software and hardware) for small-office and enterprise remote-
office customers, including appliances and or platforms which
combine network security applications such as Firewall,
Intrusion Detection, Anti Virus, and or VPN applications with
purpose built computing hardware.
(iii) "Territory" means the United States and any foreign countries,
regions, localities or territories world-wide in which the
Company, Parent, or any of their respective affiliates that
incorporates the specific technologies acquired in connection
with the Acquisition Agreement, including any derivatives,
enhancements, modifications or further developments of such
technologies, is then doing business or marketing its products
or services, as the Company, Parent, or any of their
respective affiliates may then be constituted.
b. Unfair Competition During Employment
------------------------------------
Employee understands that during his employment, he will not, without
the Company's written consent, engage in any employment or business
other than for the Company, assist in any manner in any Competitor, or
have a financial interest in any Competitor.
c. Post-Employment Restrictions
----------------------------
For the consideration in the Acquisition Agreement, Employee agrees
that he will not, for a period of eighteen months (18) months from the
Effective Date of this Agreement or one (1) year from termination of
employment with the Company or any successor, whichever is later:
------
(i) Have a financial interest in any Competitor.
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(ii) Own, manage, operate, control, be employed by, contract
with, participate in, assist, or render services in any
capacity (including as Employee, agent, partner,
independent contractor, officer, director, lender, or
guarantor), directly or indirectly, to any Competitor.
(iii) Directly or indirectly solicit, in any way encourage,
or take away customers and suppliers of the Company (or
of any current or future parent, affiliate, or
subsidiary) for Employee's own benefit or for the
benefit of a Competitor.
(iv) Directly or indirectly solicit, in any way encourage,
or take away present or future employees or present or
future consultants of the Company (or of any present or
future parent, affiliate or subsidiary) for his own
benefit or for the benefit of any other party.
(v) The parties agree that the restrictions on Employee's
competitive activities created by paragraphs 10(c)(i),
10(c)(ii), and 10(c)(iii) above shall not extend beyond
four (4) years from the Effective Date. This paragraph
does not in any way impair or limit the restrictions
set forth in paragraph 10(c)(iv) of this Agreement.
(vi) Paragraphs 10(c)(i), 10(c)(ii), and 10(c)(iii) do not
restrict Employee from accepting employment with a
Competitor if the Employee does not directly or
indirectly assist or render any services in connection
with the research, development, manufacture, sale,
installation, maintenance, merchandising or promotion
of any "Competitive Product" within the "Territory."
Before commencing employment with that Competitor, the
Employee shall provide written notice to the Company
informing it of the Competitor with whom he has
accepted employment and such notice shall specify the
duties to be performed in that position. Employee shall
also authorize this Competitor to provide information
to the Company regarding the job duties to be performed
in that position.
d. Financial Interest
------------------
For purposes of this Agreement, Employee shall be deemed to be engaged
in or have a financial interest in a business if the Employee is an
employee, officer, director, agent, consultant, advisor, independent
contractor, proprietor, principal or partner of any person which is
engaged in such business, or if the Employee, directly or indirectly,
performs such services for such person or if the Employee or any member
of the Employee's Immediate Family beneficially owns any equity
interest in or securities of, or any interest or securities convertible
into any equity interest in or securities of, any such person;
provided, however, that the ownership of publicly traded securities
having no more than three percent of the outstanding voting power of
any Competitor of the Company or any of their respective affiliates or
an investment of no more than 3% of any venture fund, shall be deemed
not to be a violation of this Agreement so long as the Employee or such
member of Employee's Immediate Family has no other connection or
relationship with such Competitor or such venture fund. For purposes
of this paragraph, Immediate Family is defined as the spouse and minor
children of the Employee.
e. Waiver of Non-Compete Obligations
----------------------------------
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The Company has the right to waive, in whole on in part, the
restrictions set forth in paragraph 10. In order for a waiver of such
restrictions to be effective, the waiver must be in writing and
signed by the Vice President of Legal Operations for Nokia U.S.
f. Notification
------------
Employee authorizes the Company to notify actual or future employers of
the terms of this Agreement and his responsibilities under it.
11. Inventions and Creations
------------------------
a. Employee agrees that all inventions, discoveries, developments,
improvements, trademarks, copyrights, trade secrets, innovations,
mask works, ideas, contributions, and any other intellectual property
of any kind (herein called collectively "Inventions"), whether or not
patented or patentable, or otherwise protectable in law, which are
conceived, made, developed or acquired by Employee, either
individually or jointly, during his employment with the Company
(including employment with Company before and after the execution of
this Agreement) and which relate in any manner to Employee's work,
the research or business of the Company, or fields to which the
business of the Company may reasonably extend, shall belong to the
Company. Employee agrees to irrevocably assign and transfer to the
Company his entire right, title, and interest in and to the
Inventions. Employee further agrees to promptly and fully disclose
the Inventions to the Company, in writing if requested by the
Company, and to execute and deliver or otherwise assist any and all
lawful applications, assignments, and other documents which the
Company requests for protecting the Inventions in the United States,
Canada or any other country. The Company shall have the full and sole
power to prosecute such applications and to take all other action
concerning the Inventions, and Employee agrees to co-operate fully,
at the expense of the Company, in the preparation and prosecution of
all such applications and in any legal actions and proceedings
concerning the Inventions.
b. Employee agrees to and does assign, convey, and transfer to the
Company any and all manuscripts, programs, writings, pictorial
materials, and other creations (called collectively "Creations"),
created by Employee, either individually or jointly, during his
employment by the Company and which relate to the business of the
Company. The Company shall have the full right to seek and procure
copyright on the Creations, and Employee shall co-operate fully, at
the expense of the Company, in securing copyrights and in any legal
actions and proceedings concerning the Creations.
c. Paragraph 11 shall not apply to inventions which an Employee cannot
be obligated to assign under Section 2870 of the California Labor
Code (hereinafter called "Section 2870"). Whether or not Employee
believes any invention is protected by Section 2870, Employee shall
disclose such invention to the Company in order to permit the Company
to determine such issues that may arise. The Company shall not
disclose information about such invention to any third party, and
shall use such information only for purposes of evaluating its rights
under this Employment Agreement. In the event such invention is
determined to be subject to Section 2870, the Company shall promptly
return to Employee all copies of any medium containing information by
Employee pursuant to this provision. Employee shall, as a condition
of this Agreement, sign Exhibits A and B to this Agreement
concurrently with the execution of this Agreement.
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12. Remedies
--------
a. Upon a breach by Employee as determined by a court of competent
jurisdiction of any of the covenants contained in this agreement, the
Company shall suffer losses for which an award of damages does not
provide an adequate remedy and shall be entitled to have a court of
competent jurisdiction enter an injunction against Employee
prohibiting any further breach of the covenants contained herein. The
parties agree that the services to be performed are of a unique,
special, and extraordinary character. Therefore, in the event of any
controversy concerning the rights or obligations under this
Agreement, such rights or obligations shall be enforceable in a court
of competent jurisdiction at law or equity by a decree of specific
performance. Such remedy, however, shall be nonexclusive and shall be
in addition to any other remedies which the Company may have.
b. Except for claims of injunctive relief, any and all disputes that may
arise between the parties (and any claim by a party against an
affiliate of the other party) under or in connection with this
Agreement shall be submitted (together with any counterclaims and
disputes under or in connection with other agreements between the
parties) to final and binding arbitration heard by a single
arbitrator in accordance with the then-current Arbitration Rules of
the American Arbitration Association (the "AAA") relating to
commercial disputes (except as such rules may be modified by the
terms of this arbitration agreement), unless otherwise agreed in
writing by the parties. Any counterclaim not brought within 30 days
after receipt of the arbitration notice shall be barred. All matters
within the scope of the Federal Arbitration Act (9 U.S.C. (S)(S) 1 et
--
seq.) shall be governed by it. The arbitration shall be conducted in
---
Mountain View, California area in the English language. The award
shall include a written statement of findings of fact and conclusions
of law and the reasons on which it is based. The award shall be
enforceable in any court of competent jurisdiction.
c. The prevailing party shall be entitled to recover reasonable
attorney's fees incurred in enforcement of this Agreement.
13. Assignment, Effect of Merger, Etc.
----------------------------------
This Agreement and the respective rights, duties, and obligations of
Employee may not be assigned or delegated by Employee. This Agreement inures to
the benefit of the Company and its affiliates, and successors and is enforceable
by any affiliate or a successor to the business of the Company. In accordance
with the Acquisition Agreement, the Company shall continue as the surviving
corporation ("Surviving Corporation") as a result of the merger of the Company
with the Purchaser. All rights and obligations set forth in this Agreement
shall vest in the Surviving Corporation on the Effective Date.
14. Notice
------
Any notice required to be given in accordance with the provisions of this
Agreement shall be in writing and sent by registered or certified mail, return
receipt requested, by a recognized overnight courier service or by hand delivery
to the parties at the following addresses:
If to Company:
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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With copies to:
Head of Human Resources ▇▇▇▇ ▇▇▇▇▇▇▇▇
Nokia Inc. Nokia Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
________________________________________________________________________________
If to Employee:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇'▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With copy to:
______________
______________
______________
Notice properly given by certified or registered mail shall be deemed effective
three (3) business days after mailing.
15. Entire Agreement
----------------
This Agreement constitutes the entire Agreement between the Company and
Employee concerning Employee's employment by the Company, and supersedes any and
all previous Agreements or understandings or rights, whether written or oral
(including any rights in unvested common stock or stock options or other rights
to compensation) between Employee and the Company concerning such employment.
This Agreement may not be modified orally. By signing this Agreement, Employee
does not waive any rights or obligations set forth in the Acquisition Agreement.
16. Waiver
------
The waiver by either party of the breach of any provision in this Agreement
shall not be construed as a waiver of any subsequent breach by either party.
17. Invalidity of Any Provision
---------------------------
The validity, legality or enforceability of the remainder of this Agreement
will not be affected even if one or more of the provisions of this Agreement
will be held to be invalid, illegal or unenforceable in any respect. Further,
if the period of time, the extent of the geographic area, or the scope of the
prescribed activities covered by paragraph 10 of this Agreement should be deemed
unenforceable, then this Agreement shall be construed to cover the maximum
period of time, geographic area and scope of prescribed activities
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(not to exceed the maximum time, geographic area or scope set forth herein) as
may be valid under applicable law and each of the parties hereto shall request
any court considering the enforceability of this Agreement to construe and/or
reform it so as to render it enforceable to the maximum extent as provided
above.
18. Applicable Law
--------------
This Agreement shall be interpreted and enforced in accordance with the
laws of the State of California. The parties agree that the paragraph 10 of
this Agreement relating to Employee's non-compete/non-solicitation covenants
have arisen out of sale of the business (including goodwill) and corporate
shares. Additionally, Employee specifically acknowledges that he is a key
employee and substantial shareholder of the Company and that the Acquisition
Agreement will result in the purchase of all of the Company's shares possessed
by him subject to such terms and conditions set forth in the Acquisition
Agreement.
19. Reasonableness of Restrictions and At-Will Employment
-----------------------------------------------------
Employee has read this agreement and agrees that the consideration provided
by the Company is fair and reasonable and further acknowledges the importance to
the Company of the Company's proprietary information and particular methods of
doing business, the post-employment restrictions on Employee's activities are
likewise fair and reasonable. Employee acknowledges that he has had the
opportunity to review this agreement with his own counsel and agrees to its
terms and conditions freely and voluntarily. Employee further acknowledges that
nothing in this agreement alters the "at will" nature of the employment
relationship, except that the at will employment relationship does not impair
Employee's right to compensation, if any, under paragraph 7 of this Agreement.
The parties have executed this Agreement on the date as indicated.
For Ramp Networks, Inc. For Nokia
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ Mika Vehuilainen
------------------ --------------------
Date: 12/6/00 Date: 12/6/00
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ATTEST:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------
EMPLOYEE
Date: 12/6/00
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EXHIBIT A
WRITTEN NOTIFICATION TO EMPLOYEE
In accordance with Section 2872 of the California Labor Code, you are
hereby notified that this Agreement does not require you to assign to the
Company any invention for which no equipment, supplies, facility, or trade
secret information of the Company was used and which was developed entirely on
your own time, and (a) which does not relate (1) to the business of the Company
or (2) to the Company's actual or demonstrably anticipated research or
development, or (b) which does not result from any work performed by you for the
Company.
You are hereby provided a copy of Section 2870 of the California Labor
Code:
SECTION 2870 OF THE CALIFORNIA LABOR CODE
"(a) Any provision in an employment agreement which provides that an
Employee shall assign or offer to assign any of his or her rights in
an invention to his or her employer shall not apply to an invention
that the Employee developed entirely on his or her own time without
using the employer's equipment, supplies, facilities, or trade secret
information except for those inventions that either:
(1) Relate at the time of conception or reduction to practice
of the invention to the employer's business, or actual or
demonstrably anticipated research or development of the
employer.
(2) Result from any work performed by the Employee for the
employer.
(b) To the extent a provision in an employment agreement purports to
require an Employee to assign an invention otherwise excluded from
being required to be assigned under subdivision (a), the provision is
against the public policy of this state and is unenforceable."
I hereby acknowledge receipt of this written notification.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------
EMPLOYEE
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EXHIBIT B
1. Confidential Information. Except as set forth below, I acknowledge
------------------------
that at this time I know nothing about the business of the Company or the
Company's Confidential Information, except information which has been
disclosed to me by the Company (if none, so state):
NONE
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
2. Prior Inventions. Except as set forth below, I acknowledge that at
----------------
this time I have not made or reduced to practice (alone or jointly with others)
any inventions or innovations (if none, so state) other than for the Company:
NONE
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
3. Conflicting Relationships. Except as set forth below, I acknowledge
-------------------------
that I have no other current or prior agreements, relationships or commitments
which conflict with my relationship with the Company under this Agreement (if
none, so state:
NONE
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated: 12/6/00 /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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EMPLOYEE
12
EMPLOYMENT AND NON-COMPETITION AGREEMENT
This Employment and Non-Competition Agreement is entered into on this 6th
day of December, 2000 between Ramp Networks, Inc. (the "Company"), and ▇▇▇▇▇
▇▇▇▇▇▇▇ ("Employee").
WHEREAS, pursuant to the Agreement and Plan of Merger between Nokia
Corporation a company organized under the laws of the Republic of Finland
("Parent"), Blackbird Acquisition, Inc., a Delaware corporation and wholly-
owned subsidiary of Parent ("Purchaser"), and the Company, the Parent will
acquire the Company upon the terms and conditions set forth in the Agreement
and Plan of Merger; and
WHEREAS, Employee is a substantial shareholder of the Company and the
Agreement and Plan of Merger will result in the acquisition by Parent and
Purchaser of all of the issued and outstanding capital stock of the Company,
including all shares possessed by Employee; and
WHEREAS, the Agreement and Plan of Merger requires that certain key
employees of the company execute employment and non-competition agreements
and, accordingly, as a condition and as an inducement to Parent to enter into
the Agreement and Plan of Merger, the Employee has agreed to enter into this
Employment and Non-competition Agreement which restricts his future
activities.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
convenants, terms and conditions set forth herein and in the Agreement and
Plan of Merger, and other valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, THE PARTIES AGREE AS FOLLOWS:
1. Employment
----------
The Company shall continue the employment of Employee and Employee accepts
continued employment with the Company in accordance with the terms and
conditions set forth in this Agreement. Employee agrees to devote his full work
time, skill, knowledge, and attention to the business of the Company and the
performance of his duties under this Agreement and further agrees to abide by
all of the Company's decisions and policies.
2. Term
----
This Agreement is contingent on and shall become effective on the closing
date of the transaction contemplated in the Agreement and Plan of Merger
("Effective Date"). This term of this Agreement is for a period of two (2)
years from the Effective Date. However, this Agreement may be terminated
earlier, as provided in paragraph 7. This Agreement shall not become effective
if the closing does not occur under the Agreement and Plan of Merger. If the
Employee's employment shall continue beyond the term of this Agreement, the
employment will continue to be on an "at-will" basis.
3. Duties
------
Employee shall perform such duties as may be assigned by the Company from
time to time and the Employee's initial position shall be Director, Product
Management, of small office systems for the IP routing group (SOS/IPRG). In
this capacity, Employee will be responsible for
13
development and management of SOS/IPRG product roadmap and assure integrity of
the SOS/IPRG product line.
4. Compensation
------------
Employee shall receive compensation from the Company for his employment as
follows:
c. Base Salary. Employee's base, annual gross salary shall be $USD
-----------
140,000 payable in the usual and customary methods and times
established by the Company.
d. Incentives. Employee will be eligible to participate in all standard
----------
Employee compensation and incentive plans. Employee's eligibility for
benefits is subject to any terms and limitations set forth under the
Nokia Global Bonus & Incentive Plan Policy. Employee will participate
in the Nokia/Blackbird Acquisition Retention Plan.
5. Benefits
--------
Employee will be eligible to participate in all standard Employee
benefit programs, including vacation, made available by the Company to other
Company Employees of comparable position. Employee's eligibility for benefits
is subject to any terms and limitations set forth in the employee benefit plans.
6. Expense Reimbursement
---------------------
Employee shall be entitled to reimbursement for reasonable and necessary
"out of pocket" business expenses in accordance with the Company's usual and
ordinary practices.
7. Termination of Agreement and Compensation Upon Termination
----------------------------------------------------------
g. Notwithstanding paragraph 2, Employee's employment may be terminated
by the Company at any time at the option of the Company for any
reason or no reason at all; provided, however, that termination of
this Agreement shall not impair Employee's right, if any, to
compensation provided under paragraph 7(e). This Agreement shall
automatically terminate on the death of Employee.
h. Employee may terminate this Agreement at any time upon giving 30 days
notice in writing to the Company.
i. The Employee will, at the time of separation, receive information
regarding health insurance continuation and retirement benefits under
federal law. To the extent that Employee has such rights, nothing in
this Agreement will impair those rights.
j. Except as specifically provided in paragraphs 7(e) and (f), no
separation pay shall be payable in the event of the termination of
this Agreement prior to the completion of the term of this Agreement
and Employee shall only be entitled to his base salary earned prior
to the date of termination computed pro rata up to and including the
date of termination and to his accrued vacation as of the effective
date of termination.
k. In the event the Employee is terminated during the term of this
Agreement without "Good Cause" by the Company the Company will pay
the Employee a lump sum amount equivalent to twelve (12) months of
base pay (subject to applicable employment and tax withholdings)
14
and the Company will accelerate 50% of unvested stock options under
the Nokia/Blackbird Acquisition Retention Plan. If Employee elects
health insurance continuation (COBRA), the Company agrees that it
will pay the premiums for such coverage for twelve (12) months from
the date of his separation from the Company. For purposes of this
Agreement, "Good Cause" for termination shall include: breach of
paragraphs 8, 9, 10 and 11 of this Agreement; willful and serious
misconduct in the performance of his job responsibilities; conviction
of any felony; material dishonesty; committing a fraud against the
company; engaging in conduct demonstrably injurious to and has a
material detrimental affect on the Company or its business or
reputation; breach of fiduciary duty; or inability to perform the
essential functions of his position or any other material breach of
any provision of the Employment Agreement, which inability to perform
or material breach is not cured within ten (10) days following
written notice from the Company.
l. Subject to paragraph 7(g) and 7(h), in the event Employee terminates
this Agreement with Employee's Good Reason, the Company will pay the
Employee a lump sum amount equivalent to twelve (12) months of base
pay (subject to applicable employment and tax withholdings) and the
Company will accelerate 50% of unvested stock options under the
Nokia/Blackbird Acquisition Retention Plan. Additionally, if Employee
elects COBRA, the Company agrees that it will pay the premiums for
such coverage for twelve (12) months from the date of his separation
from the Company. For purposes of this Agreement, Employee's Good
Reason is defined as (a) a substantial reduction in Employee's
function or responsibilities without the Employee's written consent;
provided however, the parties agree that a mere change in job titles
shall not constitute a substantial reduction in function or
responsibilities, or (b) a relocation of Employee's principal place
of employment by more than 30 miles without the Employee's written
consent or (c) a reduction of Employee's salary during the term of
this Agreement.
g. No separation pay shall be payable under paragraph 7(f) of this
Agreement if the reduction in Employee's function and
responsibilities is due to substantial growth of the Company,
expansion of the Company into additional lines of business or markets
(including expansion into businesses of any Nokia affiliate), or
Company consolidations (or reorganizations) of operations, not
specifically targeted at the Employee, with the operations of any
present or future parent, affiliate, or subsidiary. Employee shall
not have the right to terminate this Agreement for Employee's Good
Reason and the Company shall not be obligated to pay any separation
pay to Employee under paragraph 7(f) unless:
(i) the Employee has provided the Company notice in writing of the
acts giving rise to the claim of right to termination for
Employee's Good Reason within thirty (30) days after the
occurrence of any such acts;
(ii) and Employee provides the Company thirty (30) calendar days in
which to cure the conduct giving rise to the claim of right to
termination for Employee's Good Reason.
h. In the event the Company expressly waives in whole or in part in
writing the non-compete/non-solicitation provisions in paragraphs
10(c)(i), (c)(ii), and (c)(iii) the Company's separation payment under
paragraphs 7(e) and (f) shall be limited to six (6) months of base pay
and, if the Employee elects COBRA, will pay the premiums for such
coverage for six (6) months from the date of his separation from the
Company.
15
i. Paragraphs 8, 9, 10, 11, 12, 13, 18, and 19 of this Agreement will
survive and continue to be effective notwithstanding the termination of
this Agreement.
j. A termination of this Agreement does not in any way impair the
Employee's obligations under paragraph 10 of this Agreement unless the
covenants therein have been waived by the company expressly in writing
in accordance with the terms of this Agreement.
8. Proprietary Information & Confidentiality
-----------------------------------------
a. Employee understands that his employment with the Company creates a
relationship of confidence and trust with respect to any information
of a confidential or secret nature that he has acquired or will
acquire as a result of his employment with the Company that relates
to the business of the Company or to the business of any parent,
subsidiary, affiliate, customer or supplier of the Company or any
other party with whom the Company agrees to hold information of such
party in confidence ("Proprietary Information"). Such Proprietary
Information includes but is not limited to inventions, trade secrets,
product specifications, inventions, designs, sketches, graphs,
drawings, systems, computer software and programs, current and
planned research and development, customer requirements, marketing
plans, product plans, business strategies, financial information,
forecasts, and customer lists.
b. At all times, both during his employment and after its termination,
Employee will keep and hold all Proprietary Information in strict
confidence and trust, and he will not use or disclose any Proprietary
Information without the prior written consent of the Company, except
as may be necessary to perform his duties as an Employee of the
Company for the benefit of the Company. Upon termination of his
employment with the Company, Employee will promptly deliver to the
Company all documents and materials of any nature pertaining to his
work with the Company and he will not take with him any documents or
materials or copies containing any Proprietary Information. At the
Company's request, Employee will sign necessary confidentiality
Agreements required in accordance with non-disclosure Agreements
between the Company and any third-party for the purpose of protecting
third-party confidential information.
c. It shall not be a violation of this Agreement for Employee, after the
termination of employment with the Company, to use or disclose
information which is generally known to the public at the time of
disclosure or later becomes so generally known through no fault of
the Employee. The burden of showing that information is generally
known to the public shall rest with the Employee. Nothing in this
provision, however, shall be construed to affect the rights and
obligations contained in paragraph 10 of this Agreement.
9. No Breach of Prior Agreement
----------------------------
Employee represents that his performance of all the terms of this Agreement
and his duties as an Employee of the Company will not breach any invention
assignment, proprietary information or similar Agreement with any former
employer or other party. Employee also represents that he will not use in the
performance of his duties for the Company any documents or materials of a former
16
employer that are not generally available to the public or have not been legally
transferred to the Company.
10. Duty Not to Compete and Non-Solicitation
-----------------------------------------
d. Definitions
-----------
(iv) "Competitor" means any person or entity which is involved in
the research, development, manufacture, sale, installation,
maintenance, merchandising or promotion of any "Competitive
Product" within the "Territory", including the following
entities: Cosine, Netscreen, ▇▇▇▇▇▇▇▇▇.▇▇▇, and Cacheflow.
(v) "Competitive Product" means IP Security Appliance Products
(software and hardware) for small-office and enterprise remote-
office customers, including appliances and or platforms which
combine network security applications such as Firewall,
Intrusion Detection, Anti Virus, and or VPN applications with
purpose built computing hardware.
(vi) "Territory" means the United States and any foreign countries,
regions, localities or territories world-wide in which the
Company, Parent, or any of their respective affiliates that
incorporates the specific technologies acquired in connection
with the Agreement and Plan of Merger, including any
derivatives, enhancements, modifications or further
developments of such technologies, is then doing business or
marketing its products or services, as the Company, Parent, or
any of their respective affiliates may then be constituted.
e. Unfair Competition During Employment
------------------------------------
Employee understands that during his employment, he will not, without
the Company's written consent, engage in any employment or business
other than for the Company, assist in any manner in any Competitor, or
have a financial interest in any Competitor.
f. Post-Employment Restrictions
----------------------------
For the consideration in the Agreement and Plan of Merger, Employee
agrees that he will not, for a period of eighteen months (18) months
from the Effective Date of this Agreement or one (1) year from
termination of employment with the Company or any successor, whichever
is later:
------
(i) Have a financial interest in any Competitor.
(iv) Own, manage, operate, control, be employed by, contract
with, participate in, assist, or render services in any
capacity (including as Employee, agent, partner,
independent contractor, officer, director, lender, or
guarantor), directly or indirectly, to any Competitor.
(v) Directly or indirectly solicit, in any way encourage, or
take away customers and suppliers of the Company (or of
any current or future parent, affiliate, or subsidiary)
for Employee's own benefit or for the benefit of a
Competitor.
17
(vi) Directly or indirectly solicit, in any way encourage, or
take away present or future employees or present or
future consultants of the Company (or of any present or
future parent, affiliate or subsidiary) for his own
benefit or for the benefit of any other party.
(vii) The parties agree that the restrictions on Employee's
competitive activities created by paragraphs 10(c)(i),
10(c)(ii), and 10(c)(iii) above shall not extend beyond
four (4) years from the Effective Date. This paragraph
does not in any way impair or limit the restrictions set
forth in paragraph 10(c)(iv) of this Agreement.
(viii) Paragraphs 10(c)(i), 10(c)(ii), and 10(c)(iii) do not
restrict Employee from accepting employment with a
Competitor if the Employee does not directly or
indirectly assist or render any services in connection
with the research, development, manufacture, sale,
installation, maintenance, merchandising or promotion of
any "Competitive Product" within the "Territory." Before
commencing employment with that Competitor, the Employee
shall provide written notice to the Company informing it
of the Competitor with whom he has accepted employment
and such notice shall specify the duties to be performed
in that position. Employee shall also authorize this
Competitor to provide information to the Company
regarding the job duties to be performed in that
position.
d. Financial Interest
------------------
For purposes of this Agreement, Employee shall be deemed to be engaged
in or have a financial interest in a business if the Employee is an
employee, officer, director, agent, consultant, advisor, independent
contractor, proprietor, principal or partner of any person which is
engaged in such business, or if the Employee, directly or indirectly,
performs such services for such person or if the Employee or any member
of the Employee's Immediate Family beneficially owns any equity
interest in or securities of, or any interest or securities convertible
into any equity interest in or securities of, any such person;
provided, however, that the ownership of publicly traded securities
having no more than three percent of the outstanding voting power of
any Competitor of the Company or any of their respective affiliates or
an investment of no more than 3% of any venture fund, shall be deemed
not to be a violation of this Agreement so long as the Employee or such
member of Employee's Immediate Family has no other connection or
relationship with such Competitor or such venture fund. For purposes
of this paragraph, Immediate Family is defined as the spouse and minor
children of the Employee.
g. Waiver of Non-Compete Obligations
---------------------------------
The Company has the right to waive, in whole on in part, the
restrictions set forth in paragraph 10. In order for a waiver of such
restrictions to be effective, the waiver must be in writing and
signed by the Vice President of Legal Operations for Nokia U.S.
h. Notification
------------
Employee authorizes the Company to notify actual or future employers of
the terms of this Agreement and his responsibilities under it.
18
11. Inventions and Creations
------------------------
a. Employee agrees that all inventions, discoveries, developments,
improvements, trademarks, copyrights, trade secrets, innovations,
mask works, ideas, contributions, and any other intellectual property
of any kind (herein called collectively "Inventions"), whether or not
patented or patentable, or otherwise protectable in law, which are
conceived, made, developed or acquired by Employee, either
individually or jointly, during his employment with the Company
(including employment with Company before and after the execution of
this Agreement) and which relate in any manner to Employee's work,
the research or business of the Company, or fields to which the
business of the Company may reasonably extend, shall belong to the
Company. Employee agrees to irrevocably assign and transfer to the
Company his entire right, title, and interest in and to the
Inventions. Employee further agrees to promptly and fully disclose
the Inventions to the Company, in writing if requested by the
Company, and to execute and deliver or otherwise assist any and all
lawful applications, assignments, and other documents which the
Company requests for protecting the Inventions in the United States,
Canada or any other country. The Company shall have the full and sole
power to prosecute such applications and to take all other action
concerning the Inventions, and Employee agrees to co-operate fully,
at the expense of the Company, in the preparation and prosecution of
all such applications and in any legal actions and proceedings
concerning the Inventions.
b. Employee agrees to and does assign, convey, and transfer to the
Company any and all manuscripts, programs, writings, pictorial
materials, and other creations (called collectively "Creations"),
created by Employee, either individually or jointly, during his
employment by the Company and which relate to the business of the
Company. The Company shall have the full right to seek and procure
copyright on the Creations, and Employee shall co-operate fully, at
the expense of the Company, in securing copyrights and in any legal
actions and proceedings concerning the Creations.
c. Paragraph 11 shall not apply to inventions which an Employee cannot
be obligated to assign under Section 2870 of the California Labor
Code (hereinafter called "Section 2870"). Whether or not Employee
believes any invention is protected by Section 2870, Employee shall
disclose such invention to the Company in order to permit the Company
to determine such issues that may arise. The Company shall not
disclose information about such invention to any third party, and
shall use such information only for purposes of evaluating its rights
under this Employment Agreement. In the event such invention is
determined to be subject to Section 2870, the Company shall promptly
return to Employee all copies of any medium containing information by
Employee pursuant to this provision. Employee shall, as a condition
of this Agreement, sign Exhibits A and B to this Agreement
concurrently with the execution of this Agreement.
12. Remedies
--------
d. Upon a breach by Employee as determined by a court of competent
jurisdiction of any of the covenants contained in this agreement, the
Company shall suffer losses for which an award of damages does not
provide an adequate remedy and shall be entitled to have a court of
competent jurisdiction enter an injunction against Employee
prohibiting any further breach of the covenants contained herein. The
parties agree that the services to be performed are of a unique,
special, and extraordinary character. Therefore, in the event
19
of any controversy concerning the rights or obligations under this
Agreement, such rights or obligations shall be enforceable in a court
of competent jurisdiction at law or equity by a decree of specific
performance. Such remedy, however, shall be nonexclusive and shall be
in addition to any other remedies which the Company may have.
e. Except for claims of injunctive relief, any and all disputes that may
arise between the parties (and any claim by a party against an
affiliate of the other party) under or in connection with this
Agreement shall be submitted (together with any counterclaims and
disputes under or in connection with other agreements between the
parties) to final and binding arbitration heard by a single
arbitrator in accordance with the then-current Arbitration Rules of
the American Arbitration Association (the "AAA") relating to
commercial disputes (except as such rules may be modified by the
terms of this arbitration agreement), unless otherwise agreed in
writing by the parties. Any counterclaim not brought within 30 days
after receipt of the arbitration notice shall be barred. All matters
within the scope of the Federal Arbitration Act (9 U.S.C. (S)(S) 1 et
--
seq.) shall be governed by it. The arbitration shall be conducted in
---
Mountain View, California area in the English language. The award
shall include a written statement of findings of fact and conclusions
of law and the reasons on which it is based. The award shall be
enforceable in any court of competent jurisdiction.
f. The prevailing party shall be entitled to recover reasonable
attorney's fees incurred in enforcement of this Agreement.
13. Assignment, Effect of Merger, Etc.
----------------------------------
This Agreement and the respective rights, duties, and obligations of
Employee may not be assigned or delegated by Employee. This Agreement inures to
the benefit of the Company and its affiliates, and successors and is enforceable
by any affiliate or a successor to the business of the Company. In accordance
with the Agreement and Plan of Merger, the Company shall continue as the
surviving corporation ("Surviving Corporation") as a result of the merger of the
Company with the Purchaser. All rights and obligations set forth in this
Agreement shall vest in the Surviving Corporation on the Effective Date.
14. Notice
------
Any notice required to be given in accordance with the provisions of this
Agreement shall be in writing and sent by registered or certified mail, return
receipt requested, by a recognized overnight courier service or by hand delivery
to the parties at the following addresses:
If to Company:
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With copies to:
Head of Human Resources ▇▇▇▇ ▇▇▇▇▇▇▇▇
Nokia Inc. Nokia Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
________________________________________________________________________________
20
If to Employee:
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
With copy to:
______________
______________
______________
Notice properly given by certified or registered mail shall be deemed effective
three (3) business days after mailing.
15. Entire Agreement
----------------
This Agreement constitutes the entire Agreement between the Company and
Employee concerning Employee's employment by the Company, and supersedes any and
all previous Agreements or understandings or rights, whether written or oral
(including any rights in unvested common stock or stock options or other rights
to compensation) between Employee and the Company concerning such employment.
This Agreement may not be modified orally. By signing this Agreement, Employee
does not waive any rights or obligations set forth in the Agreement and Plan of
Merger.
16. Waiver
------
The waiver by either party of the breach of any provision in this Agreement
shall not be construed as a waiver of any subsequent breach by either party.
17. Invalidity of Any Provision
---------------------------
The validity, legality or enforceability of the remainder of this Agreement
will not be affected even if one or more of the provisions of this Agreement
will be held to be invalid, illegal or unenforceable in any respect. Further,
if the period of time, the extent of the geographic area, or the scope of the
prescribed activities covered by paragraph 10 of this Agreement should be deemed
unenforceable, then this Agreement shall be construed to cover the maximum
period of time, geographic area and scope of prescribed activities (not to
exceed the maximum time, geographic area or scope set forth herein) as may be
valid under applicable law and each of the parties hereto shall request any
court considering the enforceability of this Agreement to construe and/or reform
it so as to render it enforceable to the maximum extent as provided above.
18. Applicable Law
--------------
This Agreement shall be interpreted and enforced in accordance with the
laws of the State of California. The parties agree that the paragraph 10 of
this Agreement relating to Employee's non-
21
compete/non-solicitation covenants have arisen out of sale of the business
(including goodwill) and corporate shares. Additionally, Employee specifically
acknowledges that he is a key employee and substantial shareholder of the
Company and that the Agreement and Plan of Merger will result in the purchase
of all of the Company's shares possessed by him subject to such terms and
conditions set forth in the Agreement and Plan of Merger.
19. Reasonableness of Restrictions and At-Will Employment
-----------------------------------------------------
Employee has read this agreement and agrees that the consideration provided
by the Company is fair and reasonable and further acknowledges the importance to
the Company of the Company's proprietary information and particular methods of
doing business, the post-employment restrictions on Employee's activities are
likewise fair and reasonable. Employee acknowledges that he has had the
opportunity to review this agreement with his own counsel and agrees to its
terms and conditions freely and voluntarily. Employee further acknowledges that
nothing in this agreement alters the "at will" nature of the employment
relationship, except that the at will employment relationship does not impair
Employee's right to compensation, if any, under paragraph 7 of this Agreement.
The parties have executed this Agreement on the date as indicated.
For Ramp Networks, Inc. For Nokia
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ Mika Vehuilainen
------------------ --------------------
Date: 12/6/00 Date: 12/6/00
------- -------
ATTEST:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------
EMPLOYEE
Date: 12/6/00
----------
22
EXHIBIT A
WRITTEN NOTIFICATION TO EMPLOYEE
In accordance with Section 2872 of the California Labor Code, you are
hereby notified that this Agreement does not require you to assign to the
Company any invention for which no equipment, supplies, facility, or trade
secret information of the Company was used and which was developed entirely on
your own time, and (a) which does not relate (1) to the business of the Company
or (2) to the Company's actual or demonstrably anticipated research or
development, or (b) which does not result from any work performed by you for the
Company.
You are hereby provided a copy of Section 2870 of the California Labor
Code:
SECTION 2870 OF THE CALIFORNIA LABOR CODE
"(a) Any provision in an employment agreement which provides that an
Employee shall assign or offer to assign any of his or her rights in
an invention to his or her employer shall not apply to an invention
that the Employee developed entirely on his or her own time without
using the employer's equipment, supplies, facilities, or trade secret
information except for those inventions that either:
(3) Relate at the time of conception or reduction to
practice of the invention to the employer's business, or
actual or demonstrably anticipated research or
development of the employer.
(4) Result from any work performed by the Employee for the
employer.
(b) To the extent a provision in an employment agreement purports to
require an Employee to assign an invention otherwise excluded from
being required to be assigned under subdivision (a), the provision is
against the public policy of this state and is unenforceable."
I hereby acknowledge receipt of this written notification.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------
EMPLOYEE
23
EXHIBIT B
2. Confidential Information. Except as set forth below, I acknowledge
------------------------
that at this time I know nothing about the business of the Company or the
Company's Confidential Information, except information which has been
disclosed to me by the Company (if none, so state):
NONE
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
2. Prior Inventions. Except as set forth below, I acknowledge that at
----------------
this time I have not made or reduced to practice (alone or jointly with others)
any inventions or innovations (if none, so state) other than for the Company:
NONE
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
3. Conflicting Relationships. Except as set forth below, I acknowledge
-------------------------
that I have no other current or prior agreements, relationships or commitments
which conflict with my relationship with the Company under this Agreement (if
none, so state:
NONE
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Date: 12/6/00 /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------- -----------------
EMPLOYEE
24
EMPLOYMENT AND NON-COMPETITION AGREEMENT
This Employment and Non-Competition Agreement is entered into on this 6th
day of December, 2000 between Ramp Networks, Inc. (the "Company"), and ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ("Employee").
WHEREAS, pursuant to the "Agreement and Plan of Merger" between Nokia
Corporation a company organized under the laws of the Republic of Finland
("Parent"), Blackbird Acquisition, Inc., a Delaware corporation and wholly-
owned subsidiary of Parent ("Purchaser"), and the Company, the Parent will
acquire the Company upon the terms and conditions set forth in the Agreement
and Plan of Merger; and
WHEREAS, Employee is a substantial shareholder of the Company and the
Agreement and Plan of Merger will result in the acquisition by Parent and
Purchaser of all of the issued and outstanding capital stock of the Company,
including all shares possessed by Employee; and
WHEREAS, the Agreement and Plan of Merger requires that certain key
employees of the company execute employment and non-competition agreements
and, accordingly, as a condition and as an inducement to Parent to enter into
the Agreement and Plan of Merger, the Employee has agreed to enter into this
Employment and Non-competition Agreement which restricts his future
activities.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
convenants, terms and conditions set forth herein and in the Agreement and
Plan of Merger, and other valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, THE PARTIES AGREE AS FOLLOWS:
1. Employment
----------
The Company shall continue the employment of Employee and Employee accepts
continued employment with the Company in accordance with the terms and
conditions set forth in this Agreement. Employee agrees to devote his full work
time, skill, knowledge, and attention to the business of the Company and the
performance of his duties under this Agreement and further agrees to abide by
all of the Company's decisions and policies.
2. Term
----
This Agreement is contingent on and shall become effective on the closing
date of the transaction contemplated in the Agreement and Plan of Merger
("Effective Date"). This term of this Agreement is for a period of two (2)
years from the Effective Date. However, this Agreement may be terminated
earlier, as provided in paragraph 7. This Agreement shall not become effective
if the closing does not occur under the Agreement and Plan of Merger. If the
Employee's employment shall continue beyond the term of this Agreement, the
employment will continue to be on an "at-will" basis.
3. Duties
------
Employee shall perform such duties as may be assigned by the Company from
time to time and the Employee's initial position shall be Director, Software
Engineering, of small office systems for the IP routing group (SOS/IPRG) and
Managing Director for SOS/IPRG in India.
25
4. Compensation
------------
Employee shall receive compensation from the Company for his employment as
follows:
e. Base Salary. Employee's base, annual gross salary shall be $USD
-----------
140,000 payable in the usual and customary methods and
times established by the Company.
f. Incentives. Employee will be eligible to participate in all standard
----------
Employee compensation and incentive plans. Employee's
eligibility for benefits is subject to any terms and
limitations set forth under the Nokia Global Bonus &
Incentive Plan Policy. Employee will participate in the
Nokia/Blackbird Acquisition Retention Plan.
5. Benefits
--------
Employee will be eligible to participate in all standard Employee
benefit programs, including vacation, made available by the Company to other
Company Employees of comparable position. Employee's eligibility for benefits
is subject to any terms and limitations set forth in the Employee benefit plans.
6. Expense Reimbursement
---------------------
Employee shall be entitled to reimbursement for reasonable and necessary
"out of pocket" business expenses in accordance with the Company's usual and
ordinary practices.
7. Termination of Agreement and Compensation Upon Termination
----------------------------------------------------------
m. Notwithstanding paragraph 2, Employee's employment may be terminated
by the Company at any time at the option of the Company for any
reason or no reason at all; provided, however, that termination of
this Agreement shall not impair Employee's right, if any, to
compensation provided under paragraph 7(e). This Agreement shall
automatically terminate on the death of Employee.
n. Employee may terminate this Agreement at any time upon giving 30 days
notice in writing to the Company.
o. The Employee will, at the time of separation, receive information
regarding health insurance continuation and retirement benefits under
federal law. To the extent that Employee has such rights, nothing in
this Agreement will impair those rights.
p. Except as specifically provided in paragraphs 7(e) and (f), no
separation pay shall be payable in the event of the termination of
this Agreement prior to the completion of the term of this Agreement
and Employee shall only be entitled to his base salary earned prior
to the date of termination computed pro rata up to and including the
date of termination and to his accrued vacation as of the effective
date of termination.
q. In the event the Employee is terminated during the term of this
Agreement without "Good Cause" by the Company the Company will pay
the Employee a lump sum amount equivalent to twelve (12) months of
base pay (subject to applicable employment and tax withholdings) and
the Company will accelerate 50% of unvested stock options under the
Nokia/Blackbird Acquisition Retention Plan. If Employee elects health
insurance continuation (COBRA), the Company agrees that it will pay
the premiums for such coverage for twelve (12) months from
26
the date of his separation from the Company. For purposes of this
Agreement, "Good Cause" for termination shall include: breach of
paragraphs 8, 9, 10 and 11 of this Agreement; willful and serious
misconduct in the performance of his job responsibilities; conviction
of any felony; material dishonesty; committing a fraud against the
company; engaging in conduct demonstrably injurious to and has a
material detrimental affect on the Company or its business or
reputation; breach of fiduciary duty; or inability to perform the
essential functions of his position or any other material breach of
any provision of the Employment Agreement, which inability to perform
or material breach is not cured within ten (10) days following
written notice from the Company.
r. Subject to paragraph 7(g) and 7(h), in the event Employee terminates
this Agreement with Employee's Good Reason, the Company will pay the
Employee a lump sum amount equivalent to twelve (12) months of base
pay (subject to applicable employment and tax withholdings) and the
Company will accelerate 50% of unvested stock options under the
Nokia/Blackbird Acquisition Retention Plan. Additionally, if Employee
elects COBRA, the Company agrees that it will pay the premiums for
such coverage for twelve (12) months from the date of his separation
from the Company. For purposes of this Agreement, Employee's Good
Reason is defined as (a) a substantial reduction in Employee's
function or responsibilities without the Employee's written consent;
provided however, the parties agree that a mere change in job titles
shall not constitute a substantial reduction in function or
responsibilities, or (b) a relocation of Employee's principal place
of employment by more than 30 miles without the Employee's written
consent or (c) a reduction of Employee's salary during the term of
this Agreement.
g. No separation pay shall be payable under paragraph 7(f) of this
Agreement if the reduction in Employee's function and
responsibilities is due to substantial growth of the Company,
expansion of the Company into additional lines of business or markets
(including expansion into businesses of any Nokia affiliate), or
Company consolidations (or reorganizations) of operations, not
specifically targeted at the Employee, with the operations of any
present or future parent, affiliate, or subsidiary. Employee shall
not have the right to terminate this Agreement for Employee's Good
Reason and the Company shall not be obligated to pay any separation
pay to Employee under paragraph 7(f) unless:
(i) the Employee has provided the Company notice in writing of the
acts giving rise to the claim of right to termination for
Employee's Good Reason within thirty (30) days after the
occurrence of any such acts;
(ii) and Employee provides the Company thirty (30) calendar days in
which to cure the conduct giving rise to the claim of right to
termination for Employee's Good Reason.
h. In the event the Company expressly waives in whole or in part in
writing the non-compete/non-solicitation provisions in paragraphs
10(c)(i), (c)(ii), and (c)(iii) the Company's separation payment under
paragraphs 7(e) and (f) shall be limited to six (6) months of base pay
and, if the Employee elects COBRA, will pay the premiums for such
coverage for six (6) months from the date of his separation from the
Company.
i. Paragraphs 8, 9, 10, 11, 12, 13, 18, and 19 of this Agreement will
survive and continue to be effective notwithstanding the termination of
this Agreement.
27
j. A termination of this Agreement does not in any way impair the
Employee's obligations under paragraph 10 of this Agreement unless the
covenants therein have been waived by the company expressly in writing
in accordance with the terms of this Agreement.
8. Proprietary Information & Confidentiality
-----------------------------------------
a. Employee understands that his employment with the Company creates a
relationship of confidence and trust with respect to any information
of a confidential or secret nature that he has acquired or will
acquire as a result of his employment with the Company that relates
to the business of the Company or to the business of any parent,
subsidiary, affiliate, customer or supplier of the Company or any
other party with whom the Company agrees to hold information of such
party in confidence ("Proprietary Information"). Such Proprietary
Information includes but is not limited to inventions, trade secrets,
product specifications, inventions, designs, sketches, graphs,
drawings, systems, computer software and programs, current and
planned research and development, customer requirements, marketing
plans, product plans, business strategies, financial information,
forecasts, and customer lists.
b. At all times, both during his employment and after its termination,
Employee will keep and hold all Proprietary Information in strict
confidence and trust, and he will not use or disclose any Proprietary
Information without the prior written consent of the Company, except
as may be necessary to perform his duties as an Employee of the
Company for the benefit of the Company. Upon termination of his
employment with the Company, Employee will promptly deliver to the
Company all documents and materials of any nature pertaining to his
work with the Company and he will not take with him any documents or
materials or copies containing any Proprietary Information. At the
Company's request, Employee will sign necessary confidentiality
Agreements required in accordance with non-disclosure Agreements
between the Company and any third-party for the purpose of protecting
third-party confidential information.
c. It shall not be a violation of this Agreement for Employee, after the
termination of employment with the Company, to use or disclose
information which is generally known to the public at the time of
disclosure or later becomes so generally known through no fault of
the Employee. The burden of showing that information is generally
known to the public shall rest with the Employee. Nothing in this
provision, however, shall be construed to affect the rights and
obligations contained in paragraph 10 of this Agreement.
9. No Breach of Prior Agreement
----------------------------
Employee represents that his performance of all the terms of this Agreement
and his duties as an Employee of the Company will not breach any invention
assignment, proprietary information or similar Agreement with any former
employer or other party. Employee also represents that he will not use in the
performance of his duties for the Company any documents or materials of a former
employer that are not generally available to the public or have not been legally
transferred to the Company.
28
10. Duty Not to Compete and Non-Solicitation
-----------------------------------------
g. Definitions
-----------
(vii) "Competitor" means any person or entity which is involved in
the research, development, manufacture, sale, installation,
maintenance, merchandising or promotion of any "Competitive
Product" within the "Territory", including the following
entities: Cosine, Netscreen, ▇▇▇▇▇▇▇▇▇.▇▇▇, and Cacheflow.
(viii) "Competitive Product" means IP Security Appliance Products
(software and hardware) for small-office and enterprise
remote-office customers, including appliances and or
platforms which combine network security applications such as
Firewall, Intrusion Detection, Anti Virus, and or VPN
applications with purpose built computing hardware.
(ix) "Territory" means the United States and any foreign
countries, regions, localities or territories world-wide in
which the Company, Parent, or any of their respective
affiliates that incorporates the specific technologies
acquired in connection with the Agreement and Plan of Merger,
including any derivatives, enhancements, modifications or
further developments of such technologies, is then doing
business or marketing its products or services, as the
Company, Parent, or any of their respective affiliates may
then be constituted.
h. Unfair Competition During Employment
------------------------------------
Employee understands that during his employment, he will not, without
the Company's written consent, engage in any employment or business
other than for the Company, assist in any manner in any Competitor, or
have a financial interest in any Competitor.
i. Post-Employment Restrictions
----------------------------
For the consideration in the Agreement and Plan of Merger, Employee
agrees that he will not, for a period of eighteen months (18) months
from the Effective Date of this Agreement or one (1) year from
termination of employment with the Company or any successor, whichever
is later:
------
(i) Have a financial interest in any Competitor.
(ix) Own, manage, operate, control, be employed by, contract
with, participate in, assist, or render services in any
capacity (including as Employee, agent, partner, independent
contractor, officer, director, lender, or guarantor),
directly or indirectly, to any Competitor.
(x) Directly or indirectly solicit, in any way encourage, or
take away customers and suppliers of the Company (or of any
current or future parent, affiliate, or subsidiary) for
Employee's own benefit or for the benefit of a Competitor.
(iv) Directly or indirectly solicit, in any way encourage, or take
away present or future employees or present or future
consultants of the Company (or of any present or future
parent, affiliate or subsidiary) for his own benefit or for
the benefit of any other party.
29
(vi) The parties agree that the restrictions on Employee's
competitive activities created by paragraphs 10(c)(i),
10(c)(ii), and 10(c)(iii) above shall not extend beyond four
(4) years from the Effective Date. This paragraph does not
in any way impair or limit the restrictions set forth in
paragraph 10(c)(iv) of this Agreement.
(vii) Paragraphs 10(c)(i), 10(c)(ii), and 10(c)(iii) do not
restrict Employee from accepting employment with a
Competitor if the Employee does not directly or indirectly
assist or render any services in connection with the
research, development, manufacture, sale, installation,
maintenance, merchandising or promotion of any "Competitive
Product" within the "Territory." Before commencing
employment with that Competitor, the Employee shall provide
written notice to the Company informing it of the Competitor
with whom he has accepted employment and such notice shall
specify the duties to be performed in that position.
Employee shall also authorize this Competitor to provide
information to the Company regarding the job duties to be
performed in that position.
d. Financial Interest
------------------
For purposes of this Agreement, Employee shall be deemed to be engaged
in or have a financial interest in a business if the Employee is an
employee, officer, director, agent, consultant, advisor, independent
contractor, proprietor, principal or partner of any person which is
engaged in such business, or if the Employee, directly or indirectly,
performs such services for such person or if the Employee or any member
of the Employee's Immediate Family beneficially owns any equity
interest in or securities of, or any interest or securities convertible
into any equity interest in or securities of, any such person;
provided, however, that the ownership of publicly traded securities
having no more than three percent of the outstanding voting power of
any Competitor of the Company or any of their respective affiliates or
an investment of no more than 3% of any venture fund, shall be deemed
not to be a violation of this Agreement so long as the Employee or such
member of Employee's Immediate Family has no other connection or
relationship with such Competitor or such venture fund. For purposes
of this paragraph, Immediate Family is defined as the spouse and minor
children of the Employee.
i. Waiver of Non-Compete Obligations
----------------------------------
The Company has the right to waive, in whole on in part, the
restrictions set forth in paragraph 10. In order for a waiver of such
restrictions to be effective, the waiver must be in writing and
signed by the Vice President of Legal Operations for Nokia U.S.
j. Notification
------------
Employee authorizes the Company to notify actual or future employers of
the terms of this Agreement and his responsibilities under it.
11. Inventions and Creations
------------------------
a. Employee agrees that all inventions, discoveries, developments,
improvements, trademarks, copyrights, trade secrets, innovations, mask
works, ideas, contributions, and any other intellectual property of
any kind (herein called collectively "Inventions"), whether or not
patented or patentable, or otherwise protectable in law,
30
which are conceived, made, developed or acquired by Employee, either
individually or jointly, during his employment with the Company
(including employment with Company before and after the execution of
this Agreement) and which relate in any manner to Employee's work,
the research or business of the Company, or fields to which the
business of the Company may reasonably extend, shall belong to the
Company. Employee agrees to irrevocably assign and transfer to the
Company his entire right, title, and interest in and to the
Inventions. Employee further agrees to promptly and fully disclose
the Inventions to the Company, in writing if requested by the
Company, and to execute and deliver or otherwise assist any and all
lawful applications, assignments, and other documents which the
Company requests for protecting the Inventions in the United States,
Canada or any other country. The Company shall have the full and
sole power to prosecute such applications and to take all other
action concerning the Inventions, and Employee agrees to co-operate
fully, at the expense of the Company, in the preparation and
prosecution of all such applications and in any legal actions and
proceedings concerning the Inventions.
b. Employee agrees to and does assign, convey, and transfer to the
Company any and all manuscripts, programs, writings, pictorial
materials, and other creations (called collectively "Creations"),
created by Employee, either individually or jointly, during his
employment by the Company and which relate to the business of the
Company. The Company shall have the full right to seek and procure
copyright on the Creations, and Employee shall co-operate fully, at
the expense of the Company, in securing copyrights and in any legal
actions and proceedings concerning the Creations.
c. Paragraph 11 shall not apply to inventions which an Employee cannot
be obligated to assign under Section 2870 of the California Labor
Code (hereinafter called "Section 2870"). Whether or not Employee
believes any invention is protected by Section 2870, Employee shall
disclose such invention to the Company in order to permit the Company
to determine such issues that may arise. The Company shall not
disclose information about such invention to any third party, and
shall use such information only for purposes of evaluating its rights
under this Employment Agreement. In the event such invention is
determined to be subject to Section 2870, the Company shall promptly
return to Employee all copies of any medium containing information by
Employee pursuant to this provision. Employee shall, as a condition
of this Agreement, sign Exhibits A and B to this Agreement
concurrently with the execution of this Agreement.
12. Remedies
--------
g. Upon a breach by Employee as determined by a court of competent
jurisdiction of any of the covenants contained in this agreement, the
Company shall suffer losses for which an award of damages does not
provide an adequate remedy and shall be entitled to have a court of
competent jurisdiction enter an injunction against Employee
prohibiting any further breach of the covenants contained herein. The
parties agree that the services to be performed are of a unique,
special, and extraordinary character. Therefore, in the event of any
controversy concerning the rights or obligations under this
Agreement, such rights or obligations shall be enforceable in a court
of competent jurisdiction at law or equity by a decree of specific
performance. Such remedy, however, shall be nonexclusive and shall be
in addition to any other remedies which the Company may have.
31
h. Except for claims of injunctive relief, any and all disputes that may
arise between the parties (and any claim by a party against an
affiliate of the other party) under or in connection with this
Agreement shall be submitted (together with any counterclaims and
disputes under or in connection with other agreements between the
parties) to final and binding arbitration heard by a single
arbitrator in accordance with the then-current Arbitration Rules of
the American Arbitration Association (the "AAA") relating to
commercial disputes (except as such rules may be modified by the
terms of this arbitration agreement), unless otherwise agreed in
writing by the parties. Any counterclaim not brought within 30 days
after receipt of the arbitration notice shall be barred. All matters
within the scope of the Federal Arbitration Act (9 U.S.C. (S)(S) 1 et
--
seq.) shall be governed by it. The arbitration shall be conducted in
---
Mountain View, California area in the English language. The award
shall include a written statement of findings of fact and conclusions
of law and the reasons on which it is based. The award shall be
enforceable in any court of competent jurisdiction.
i. The prevailing party shall be entitled to recover reasonable
attorney's fees incurred in enforcement of this Agreement.
13. Assignment, Effect of Merger, Etc.
----------------------------------
This Agreement and the respective rights, duties, and obligations of
Employee may not be assigned or delegated by Employee. This Agreement inures to
the benefit of the Company and its affiliates, and successors and is enforceable
by any affiliate or a successor to the business of the Company. In accordance
with the Agreement and Plan of Merger, the Company shall continue as the
surviving corporation ("Surviving Corporation") as a result of the merger of the
Company with the Purchaser. All rights and obligations set forth in this
Agreement shall vest in the Surviving Corporation on the Effective Date.
14. Notice
------
Any notice required to be given in accordance with the provisions of this
Agreement shall be in writing and sent by registered or certified mail, return
receipt requested, by a recognized overnight courier service or by hand delivery
to the parties at the following addresses:
If to Company:
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With copies to:
Head of Human Resources ▇▇▇▇ ▇▇▇▇▇▇▇▇
Nokia Inc. Nokia Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
________________________________________________________________________________
32
If to Employee:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With copy to:
______________
______________
______________
Notice properly given by certified or registered mail shall be deemed effective
three (3) business days after mailing.
15. Entire Agreement
----------------
This Agreement constitutes the entire Agreement between the Company and
Employee concerning Employee's employment by the Company, and supersedes any and
all previous Agreements or understandings or rights, whether written or oral
(including any rights in unvested common stock or stock options or other rights
to compensation) between Employee and the Company concerning such employment.
This Agreement may not be modified orally. By signing this Agreement, Employee
does not waive any rights or obligations set forth in the Agreement and Plan of
Merger.
16. Waiver
------
The waiver by either party of the breach of any provision in this Agreement
shall not be construed as a waiver of any subsequent breach by either party.
17. Invalidity of Any Provision
---------------------------
The validity, legality or enforceability of the remainder of this Agreement
will not be affected even if one or more of the provisions of this Agreement
will be held to be invalid, illegal or unenforceable in any respect. Further,
if the period of time, the extent of the geographic area, or the scope of the
prescribed activities covered by paragraph 10 of this Agreement should be deemed
unenforceable, then this Agreement shall be construed to cover the maximum
period of time, geographic area and scope of prescribed activities (not to
exceed the maximum time, geographic area or scope set forth herein) as may be
valid under applicable law and each of the parties hereto shall request any
court considering the enforceability of this Agreement to construe and/or reform
it so as to render it enforceable to the maximum extent as provided above.
18. Applicable Law
--------------
This Agreement shall be interpreted and enforced in accordance with the
laws of the State of California. The parties agree that the paragraph 10 of
this Agreement relating to Employee's non-
33
compete/non-solicitation covenants have arisen out of sale of the business
(including goodwill) and corporate shares. Additionally, Employee specifically
acknowledges that he is a key employee and substantial shareholder of the
Company and that the Agreement and Plan of Merger will result in the purchase of
all of the Company's shares possessed by him subject to such terms and
conditions set forth in the Agreement and Plan of Merger.
19. Reasonableness of Restrictions and At-Will Employment
-----------------------------------------------------
Employee has read this agreement and agrees that the consideration provided
by the Company is fair and reasonable and further acknowledges the importance to
the Company of the Company's proprietary information and particular methods of
doing business, the post-employment restrictions on Employee's activities are
likewise fair and reasonable. Employee acknowledges that he has had the
opportunity to review this agreement with his own counsel and agrees to its
terms and conditions freely and voluntarily. Employee further acknowledges that
nothing in this agreement alters the "at will" nature of the employment
relationship, except that the at will employment relationship does not impair
Employee's right to compensation, if any, under paragraph 7 of this Agreement.
The parties have executed this Agreement on the date as indicated.
For Ramp Networks, Inc. For Nokia
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ Mika Vehuilainen
--- ------------------------- ------------------------------
Date: 12/6/00 Date: 12/6/00
---------------------- ------------------------
ATTEST:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------
EMPLOYEE
Date: 12/6/00
-------------------
34
EXHIBIT A
WRITTEN NOTIFICATION TO EMPLOYEE
In accordance with Section 2872 of the California Labor Code, you are
hereby notified that this Agreement does not require you to assign to the
Company any invention for which no equipment, supplies, facility, or trade
secret information of the Company was used and which was developed entirely on
your own time, and (a) which does not relate (1) to the business of the Company
or (2) to the Company's actual or demonstrably anticipated research or
development, or (b) which does not result from any work performed by you for the
Company.
You are hereby provided a copy of Section 2870 of the California Labor
Code:
SECTION 2870 OF THE CALIFORNIA LABOR CODE
"(a) Any provision in an employment agreement which provides that an
Employee shall assign or offer to assign any of his or her rights in
an invention to his or her employer shall not apply to an invention
that the Employee developed entirely on his or her own time without
using the employer's equipment, supplies, facilities, or trade secret
information except for those inventions that either:
(5) Relate at the time of conception or reduction to practice
of the invention to the employer's business, or actual or
demonstrably anticipated research or development of the
employer.
(6) Result from any work performed by the Employee for the
employer.
(b) To the extent a provision in an employment agreement purports to
require an Employee to assign an invention otherwise excluded from
being required to be assigned under subdivision (a), the provision is
against the public policy of this state and is unenforceable."
I hereby acknowledge receipt of this written notification.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
EMPLOYEE
35
EXHIBIT B
3. Confidential Information. Except as set forth below, I acknowledge
------------------------
that at this time I know nothing about the business of the Company or the
Company's Confidential Information, except information which has been disclosed
to me by the Company (if none, so state):
NONE
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
2. Prior Inventions. Except as set forth below, I acknowledge that at
----------------
this time I have not made or reduced to practice (alone or jointly with others)
any inventions or innovations (if none, so state) other than for the Company:
NONE
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
3. Conflicting Relationships. Except as set forth below, I acknowledge
-------------------------
that I have no other current or prior agreements, relationships or commitments
which conflict with my relationship with the Company under this Agreement (if
none, so state):
NONE
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated: ▇▇/▇/▇▇ /▇/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------- -----------------------------
EMPLOYEE
36
EMPLOYMENT AND NON-COMPETITION AGREEMENT
This Employment and Non-Competition Agreement is entered into on this 6th
day of December, 2000 between Ramp Networks, Inc. (the "Company"), and ▇▇▇▇
▇▇▇▇▇ ("Employee").
WHEREAS, pursuant to the Agreement and Plan of Merger between Nokia
Corporation a company organized under the laws of the Republic of Finland
("Parent"), Blackbird Acquisition, Inc., a Delaware corporation and wholly-owned
subsidiary of Parent ("Purchaser"), and the Company, the Parent will acquire the
Company upon the terms and conditions set forth in the Agreement and Plan of
Merger; and
WHEREAS, Employee is a substantial shareholder of the Company and the
Agreement and Plan of Merger will result in the acquisition by Parent and
Purchaser of all of the issued and outstanding capital stock of the Company,
including all shares possessed by Employee; and
WHEREAS, the Agreement and Plan of Merger requires that certain key
employees of the company execute employment and non-competition agreements and,
accordingly, as a condition and as an inducement to Parent to enter into the
Agreement and Plan of Merger, the Employee has agreed to enter into this
Employment and Non-competition Agreement which restricts his future activities.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
convenants, terms and conditions set forth herein and in the Agreement and Plan
of Merger, and other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, THE PARTIES AGREE AS FOLLOWS:
1. Employment
----------
The Company shall continue the employment of Employee and Employee accepts
continued employment with the Company in accordance with the terms and
conditions set forth in this Agreement. Employee agrees to devote his full work
time, skill, knowledge, and attention to the business of the Company and the
performance of his duties under this Agreement and further agrees to abide by
all of the Company's decisions and policies.
2. Term
----
This Agreement is contingent on and shall become effective on the closing
date of the transaction contemplated in the Agreement and Plan of Merger
("Effective Date"). This term of this Agreement is for a period of two (2) years
from the Effective Date. However, this Agreement may be terminated earlier, as
provided in paragraph 7. This Agreement shall not become effective if the
closing does not occur under the Agreement and Plan of Merger. If the Employee's
employment shall continue beyond the term of this Agreement, the employment will
continue to be on an "at-will" basis.
3. Duties
------
Employee shall perform such duties as may be assigned by the Company from
time to time and the Employee's initial position shall be Senior Director,
Engineering, of small office systems for the IP routing group (SOS/IPRG). In
this capacity, Employee will be responsible for directing the efforts of
SOS/IPRG engineering teams in California and Hyderabad, India.
37
4. Compensation
------------
Employee shall receive compensation from the Company for his employment as
follows:
g. Base Salary. Employee's base, annual gross salary shall be $USD 165,000
-----------
payable in the usual and customary methods and times established by the
Company.
h. Incentives. Employee will be eligible to participate in all standard
----------
Employee compensation and incentive plans. Employee's eligibility for
benefits is subject to any terms and limitations set forth under the
Nokia Global Bonus & Incentive Plan Policy. Employee will participate in
the Nokia/Blackbird Acquisition Retention Plan.
5. Benefits
--------
Employee will be eligible to participate in all standard Employee benefit
programs, including vacation, made available by the Company to other Company
Employees of comparable position. Employee's eligibility for benefits is subject
to any terms and limitations set forth in the Employee benefit plans.
6. Expense Reimbursement
---------------------
Employee shall be entitled to reimbursement for reasonable and necessary
"out of pocket" business expenses in accordance with the Company's usual and
ordinary practices.
7. Termination of Agreement and Compensation Upon Termination
----------------------------------------------------------
s. Notwithstanding paragraph 2, Employee's employment may be terminated by
the Company at any time at the option of the Company for any reason or
no reason at all; provided, however, that termination of this Agreement
shall not impair Employee's right, if any, to compensation provided
under paragraph 7(e). This Agreement shall automatically terminate on
the death of Employee.
t. Employee may terminate this Agreement at any time upon giving 30 days
notice in writing to the Company.
u. The Employee will, at the time of separation, receive information
regarding health insurance continuation and retirement benefits under
federal law. To the extent that Employee has such rights, nothing in
this Agreement will impair those rights.
v. Except as specifically provided in paragraphs 7(e) and (f), no
separation pay shall be payable in the event of the termination of this
Agreement prior to the completion of the term of this Agreement and
Employee shall only be entitled to his base salary earned prior to the
date of termination computed pro rata up to and including the date of
termination and to his accrued vacation as of the effective date of
termination.
w. In the event the Employee is terminated during the term of this
Agreement without "Good Cause" by the Company the Company will pay the
Employee a lump sum amount equivalent to twelve (12) months of base pay
(subject to applicable employment and tax withholdings) and the Company
will accelerate 50% of unvested stock options under the Nokia/Blackbird
Acquisition Retention Plan. If Employee elects health insurance
continuation (COBRA), the
38
Company agrees that it will pay the premiums for such coverage for
twelve (12) months from the date of his separation from the Company. For
purposes of this Agreement, "Good Cause" for termination shall include:
breach of paragraphs 8, 9, 10 and 11 of this Agreement; willful and
serious misconduct in the performance of his job responsibilities;
conviction of any felony; material dishonesty; committing a fraud
against the company; engaging in conduct demonstrably injurious to and
has a material detrimental affect on the Company or its business or
reputation; breach of fiduciary duty; or inability to perform the
essential functions of his position or any other material breach of any
provision of the Employment Agreement, which inability to perform or
material breach is not cured within ten (10) days following written
notice from the Company.
x. Subject to paragraph 7(g) and 7(h), in the event Employee terminates
this Agreement with Employee's Good Reason, the Company will pay the
Employee a lump sum amount equivalent to twelve (12) months of base pay
(subject to applicable employment and tax withholdings) and the Company
will accelerate 50% of unvested stock options under the Nokia/Blackbird
Acquisition Retention Plan. Additionally, if Employee elects COBRA, the
Company agrees that it will pay the premiums for such coverage for
twelve (12) months from the date of his separation from the Company. For
purposes of this Agreement, Employee's Good Reason is defined as (a) a
substantial reduction in Employee's function or responsibilities without
the Employee's written consent; provided however, the parties agree that
a mere change in job titles shall not constitute a substantial reduction
in function or responsibilities, or (b) a relocation of Employee's
principal place of employment by more than 30 miles without the
Employee's written consent or (c) a reduction of Employee's salary
during the term of this Agreement.
g. No separation pay shall be payable under paragraph 7(f) of this
Agreement if the reduction in Employee's function and responsibilities
is due to substantial growth of the Company, expansion of the Company
into additional lines of business or markets (including expansion into
businesses of any Nokia affiliate), or Company consolidations (or
reorganizations) of operations, not specifically targeted at the
Employee, with the operations of any present or future parent,
affiliate, or subsidiary. Employee shall not have the right to terminate
this Agreement for Employee's Good Reason and the Company shall not be
obligated to pay any separation pay to Employee under paragraph 7(f)
unless:
(i) the Employee has provided the Company notice in writing of the
acts giving rise to the claim of right to termination for
Employee's Good Reason within thirty (30) days after the occurrence
of any such acts;
(ii) and Employee provides the Company thirty (30) calendar days in
which to cure the conduct giving rise to the claim of right to
termination for Employee's Good Reason.
h. In the event the Company expressly waives in whole or in part in
writing the non-compete/non-solicitation provisions in paragraphs
10(c)(i), (c)(ii), and (c)(iii) the Company's separation payment under
paragraphs 7(e) and (f) shall be limited to six (6) months of base pay
and, if the Employee elects COBRA, will pay the premiums for such
coverage for six (6) months from the date of his separation from the
Company.
39
i. Paragraphs 8, 9, 10, 11, 12, 13, 18, and 19 of this Agreement will
survive and continue to be effective notwithstanding the termination of
this Agreement.
j. A termination of this Agreement does not in any way impair the
Employee's obligations under paragraph 10 of this Agreement unless the
covenants therein have been waived by the company expressly in writing
in accordance with the terms of this Agreement.
8. Proprietary Information & Confidentiality
-----------------------------------------
a. Employee understands that his employment with the Company creates a
relationship of confidence and trust with respect to any information of
a confidential or secret nature that he has acquired or will acquire as
a result of his employment with the Company that relates to the
business of the Company or to the business of any parent, subsidiary,
affiliate, customer or supplier of the Company or any other party with
whom the Company agrees to hold information of such party in confidence
("Proprietary Information"). Such Proprietary Information includes but
is not limited to inventions, trade secrets, product specifications,
inventions, designs, sketches, graphs, drawings, systems, computer
software and programs, current and planned research and development,
customer requirements, marketing plans, product plans, business
strategies, financial information, forecasts, and customer lists.
b. At all times, both during his employment and after its termination,
Employee will keep and hold all Proprietary Information in strict
confidence and trust, and he will not use or disclose any Proprietary
Information without the prior written consent of the Company, except as
may be necessary to perform his duties as an Employee of the Company
for the benefit of the Company. Upon termination of his employment with
the Company, Employee will promptly deliver to the Company all
documents and materials of any nature pertaining to his work with the
Company and he will not take with him any documents or materials or
copies containing any Proprietary Information. At the Company's
request, Employee will sign necessary confidentiality Agreements
required in accordance with non-disclosure Agreements between the
Company and any third-party for the purpose of protecting third-party
confidential information.
c. It shall not be a violation of this Agreement for Employee, after the
termination of employment with the Company, to use or disclose
information which is generally known to the public at the time of
disclosure or later becomes so generally known through no fault of the
Employee. The burden of showing that information is generally known to
the public shall rest with the Employee. Nothing in this provision,
however, shall be construed to affect the rights and obligations
contained in paragraph 10 of this Agreement.
9. No Breach of Prior Agreement
----------------------------
Employee represents that his performance of all the terms of this Agreement
and his duties as an Employee of the Company will not breach any invention
assignment, proprietary information or similar Agreement with any former
employer or other party. Employee also represents that he will not use in the
performance of his duties for the Company any documents or materials of a former
employer that are not generally available to the public or have not been legally
transferred to the Company.
40
10. Duty Not to Compete and Non-Solicitation
-----------------------------------------
j. Definitions
-----------
(x) "Competitor" means any person or entity which is involved in the
research, development, manufacture, sale, installation,
maintenance, merchandising or promotion of any "Competitive
Product" within the "Territory", including the following
entities: Cosine, Netscreen, ▇▇▇▇▇▇▇▇▇.▇▇▇, and Cacheflow.
(xi) "Competitive Product" means IP Security Appliance Products
(software and hardware) for small-office and enterprise remote-
office customers, including appliances and or platforms which
combine network security applications such as Firewall, Intrusion
Detection, Anti Virus, and or VPN applications with purpose built
computing hardware.
(xii) "Territory" means the United States and any foreign countries,
regions, localities or territories world-wide in which the
Company, Parent, or any of their respective affiliates that
incorporates the specific technologies acquired in connection
with the Agreement and Plan of Merger, including any derivatives,
enhancements, modifications or further developments of such
technologies, is then doing business or marketing its products or
services, as the Company, Parent, or any of their respective
affiliates may then be constituted.
k. Unfair Competition During Employment
------------------------------------
Employee understands that during his employment, he will not, without
the Company's written consent, engage in any employment or business
other than for the Company, assist in any manner in any Competitor, or
have a financial interest in any Competitor.
l. Post-Employment Restrictions
----------------------------
For the consideration in the Agreement and Plan of Merger, Employee
agrees that he will not, for a period of eighteen months (18) months
from the Effective Date of this Agreement or one (1) year from
termination of employment with the Company or any successor, whichever
is later:
------
(i) Have a financial interest in any Competitor.
(xi) Own, manage, operate, control, be employed by, contract with,
participate in, assist, or render services in any capacity
(including as Employee, agent, partner, independent contractor,
officer, director, lender, or guarantor), directly or
indirectly, to any Competitor.
(xii) Directly or indirectly solicit, in any way encourage, or take
away customers and suppliers of the Company (or of any current
or future parent, affiliate, or subsidiary) for Employee's own
benefit or for the benefit of a Competitor.
(iv) Directly or indirectly solicit, in any way encourage, or take
away present or future employees or present or future
consultants of the Company (or of any present or future parent,
affiliate or subsidiary) for his own benefit or for the benefit
of any other party.
41
(viii) The parties agree that the restrictions on Employee's
competitive activities created by paragraphs 10(c)(i),
10(c)(ii), and 10(c)(iii) above shall not extend beyond four (4)
years from the Effective Date. This paragraph does not in any
way impair or limit the restrictions set forth in paragraph
10(c)(iv) of this Agreement.
(ix) Paragraphs 10(c)(i), 10(c)(ii), and 10(c)(iii) do not restrict
Employee from accepting employment with a Competitor if the
Employee does not directly or indirectly assist or render any
services that Competitor in connection with the research,
development, manufacture, sale, installation, maintenance,
merchandising or promotion of any "Competitive Product" within
the "Territory." Before commencing employment with that
Competitor, the Employee shall provide written notice to the
Company informing it of the Competitor with whom he has accepted
employment and such notice shall specify the duties to be
performed in that position. Employee shall also authorize this
Competitor to provide information to the Company regarding the
job duties to be performed in that position.
d. Financial Interest
------------------
For purposes of this Agreement, Employee shall be deemed to be engaged
in or have a financial interest in a business if the Employee is an
employee, officer, director, agent, consultant, advisor, independent
contractor, proprietor, principal or partner of any person which is
engaged in such business, or if the Employee, directly or indirectly,
performs such services for such person or if the Employee or any member
of the Employee's Immediate Family beneficially owns any equity
interest in or securities of, or any interest or securities convertible
into any equity interest in or securities of, any such person;
provided, however, that the ownership of publicly traded securities
having no more than three percent of the outstanding voting power of
any Competitor of the Company or any of their respective affiliates or
an investment of no more than 3% of any venture fund, shall be deemed
not to be a violation of this Agreement so long as the Employee or such
member of Employee's Immediate Family has no other connection or
relationship with such Competitor or such venture fund. For purposes
of this paragraph, Immediate Family is defined as the spouse and minor
children of the Employee.
k. Waiver of Non-Compete Obligations
----------------------------------
The Company has the right to waive, in whole on in part, the
restrictions set forth in paragraph 10. In order for a waiver of such
restrictions to be effective, the waiver must be in writing and signed
by the Vice President of Legal Operations for Nokia U.S.
l. Notification
------------
Employee authorizes the Company to notify actual or future employers of
the terms of this Agreement and his responsibilities under it.
11. Inventions and Creations
------------------------
a. Employee agrees that all inventions, discoveries, developments,
improvements, trademarks, copyrights, trade secrets, innovations, mask
works, ideas, contributions, and any other intellectual property of any
kind (herein called collectively "Inventions"), whether or not patented
or patentable, or otherwise protectable in law,
42
which are conceived, made, developed or acquired by Employee, either
individually or jointly, during his employment with the Company
(including employment with Company before and after the execution of
this Agreement) and which relate in any manner to Employee's work, the
research or business of the Company, or fields to which the business of
the Company may reasonably extend, shall belong to the Company.
Employee agrees to irrevocably assign and transfer to the Company his
entire right, title, and interest in and to the Inventions. Employee
further agrees to promptly and fully disclose the Inventions to the
Company, in writing if requested by the Company, and to execute and
deliver or otherwise assist any and all lawful applications,
assignments, and other documents which the Company requests for
protecting the Inventions in the United States, Canada or any other
country. The Company shall have the full and sole power to prosecute
such applications and to take all other action concerning the
Inventions, and Employee agrees to co-operate fully, at the expense of
the Company, in the preparation and prosecution of all such
applications and in any legal actions and proceedings concerning the
Inventions.
b. Employee agrees to and does assign, convey, and transfer to the
Company any and all manuscripts, programs, writings, pictorial
materials, and other creations (called collectively "Creations"),
created by Employee, either individually or jointly, during his
employment by the Company and which relate to the business of the
Company. The Company shall have the full right to seek and procure
copyright on the Creations, and Employee shall co-operate fully, at the
expense of the Company, in securing copyrights and in any legal actions
and proceedings concerning the Creations.
c. Paragraph 11 shall not apply to inventions which an Employee cannot be
obligated to assign under Section 2870 of the California Labor Code
(hereinafter called "Section 2870"). Whether or not Employee believes
any invention is protected by Section 2870, Employee shall disclose
such invention to the Company in order to permit the Company to
determine such issues that may arise. The Company shall not disclose
information about such invention to any third party, and shall use such
information only for purposes of evaluating its rights under this
Employment Agreement. In the event such invention is determined to be
subject to Section 2870, the Company shall promptly return to Employee
all copies of any medium containing information by Employee pursuant to
this provision. Employee shall, as a condition of this Agreement, sign
Exhibits A and B to this Agreement concurrently with the execution of
this Agreement.
12. Remedies
--------
j. Upon a breach by Employee as determined by a court of competent
jurisdiction of any of the covenants contained in this agreement, the
Company shall suffer losses for which an award of damages does not
provide an adequate remedy and shall be entitled to have a court of
competent jurisdiction enter an injunction against Employee prohibiting
any further breach of the covenants contained herein. The parties agree
that the services to be performed are of a unique, special, and
extraordinary character. Therefore, in the event of any controversy
concerning the rights or obligations under this Agreement, such rights
or obligations shall be enforceable in a court of competent
jurisdiction at law or equity by a decree of specific performance. Such
remedy, however, shall be nonexclusive and shall be in addition to any
other remedies which the Company may have.
43
k. Except for claims of injunctive relief, any and all disputes that may
arise between the parties (and any claim by a party against an
affiliate of the other party) under or in connection with this
Agreement shall be submitted (together with any counterclaims and
disputes under or in connection with other agreements between the
parties) to final and binding arbitration heard by a single arbitrator
in accordance with the then-current Arbitration Rules of the American
Arbitration Association (the "AAA") relating to commercial disputes
(except as such rules may be modified by the terms of this arbitration
agreement), unless otherwise agreed in writing by the parties. Any
counterclaim not brought within 30 days after receipt of the
arbitration notice shall be barred. All matters within the scope of the
Federal Arbitration Act (9 U.S.C. (S)(S) 1 et seq.) shall be governed
-- ---
by it. The arbitration shall be conducted in Mountain View, California
area in the English language. The award shall include a written
statement of findings of fact and conclusions of law and the reasons on
which it is based. The award shall be enforceable in any court of
competent jurisdiction.
l. The prevailing party shall be entitled to recover reasonable
attorney's fees incurred in enforcement of this Agreement.
13. Assignment, Effect of Merger, Etc.
----------------------------------
This Agreement and the respective rights, duties, and obligations of
Employee may not be assigned or delegated by Employee. This Agreement inures to
the benefit of the Company and its affiliates, and successors and is enforceable
by any affiliate or a successor to the business of the Company. In accordance
with the Agreement and Plan of Merger, the Company shall continue as the
surviving corporation ("Surviving Corporation") as a result of the merger of the
Company with the Purchaser. All rights and obligations set forth in this
Agreement shall vest in the Surviving Corporation on the Effective Date.
14. Notice
------
Any notice required to be given in accordance with the provisions of this
Agreement shall be in writing and sent by registered or certified mail, return
receipt requested, by a recognized overnight courier service or by hand delivery
to the parties at the following addresses:
If to Company:
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With copies to:
Head of Human Resources ▇▇▇▇ ▇▇▇▇▇▇▇▇
Nokia Inc Nokia Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
44
If to Employee:
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
With copy to:
______________
______________
______________
Notice properly given by certified or registered mail shall be deemed effective
three (3) business days after mailing.
15. Entire Agreement
----------------
This Agreement constitutes the entire Agreement between the Company and
Employee concerning Employee's employment by the Company, and supersedes any and
all previous Agreements or understandings or rights, whether written or oral
(including any rights in unvested common stock or stock options or other rights
to compensation) between Employee and the Company concerning such employment.
This Agreement may not be modified orally. By signing this Agreement, Employee
does not waive any rights or obligations set forth in the Agreement and Plan of
Merger.
16. Waiver
------
The waiver by either party of the breach of any provision in this Agreement
shall not be construed as a waiver of any subsequent breach by either party.
17. Invalidity of Any Provision
---------------------------
The validity, legality or enforceability of the remainder of this Agreement
will not be affected even if one or more of the provisions of this Agreement
will be held to be invalid, illegal or unenforceable in any respect. Further,
if the period of time, the extent of the geographic area, or the scope of the
prescribed activities covered by paragraph 10 of this Agreement should be deemed
unenforceable, then this Agreement shall be construed to cover the maximum
period of time, geographic area and scope of prescribed activities (not to
exceed the maximum time, geographic area or scope set forth herein) as may be
valid under applicable law and each of the parties hereto shall request any
court considering the enforceability of this Agreement to construe and/or reform
it so as to render it enforceable to the maximum extent as provided above.
18. Applicable Law
--------------
This Agreement shall be interpreted and enforced in accordance with the
laws of the State of California. The parties agree that the paragraph 10 of
this Agreement relating to Employee's non-
45
compete/non-solicitation covenants have arisen out of sale of the business
(including goodwill) and corporate shares. Additionally, Employee specifically
acknowledges that he is a key employee and substantial shareholder of the
Company and that the Agreement and Plan of Merger will result in the purchase of
all of the Company's shares possessed by him subject to such terms and
conditions set forth in the Agreement and Plan of Merger.
19. Reasonableness of Restrictions and At-Will Employment
-----------------------------------------------------
Employee has read this agreement and agrees that the consideration provided
by the Company is fair and reasonable and further acknowledges the importance to
the Company of the Company's proprietary information and particular methods of
doing business, the post-employment restrictions on Employee's activities are
likewise fair and reasonable. Employee acknowledges that he has had the
opportunity to review this agreement with his own counsel and agrees to its
terms and conditions freely and voluntarily. Employee further acknowledges that
nothing in this agreement alters the "at will" nature of the employment
relationship, except that the at will employment relationship does not impair
Employee's right to compensation, if any, under paragraph 7 of this Agreement.
The parties have executed this Agreement on the date as indicated.
For Ramp Networks, Inc. For Nokia
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ Mika Vehuilainen
--- -------------- --------------------
Date: 12/6/00 Date: 12/6/00
---------- -----------
ATTEST:
/s/ ▇▇▇▇ ▇▇▇▇▇
--------------
EMPLOYEE
Date: 12/6/00
-------
46
EXHIBIT A
WRITTEN NOTIFICATION TO EMPLOYEE
In accordance with Section 2872 of the California Labor Code, you are
hereby notified that this Agreement does not require you to assign to the
Company any invention for which no equipment, supplies, facility, or trade
secret information of the Company was used and which was developed entirely on
your own time, and (a) which does not relate (1) to the business of the Company
or (2) to the Company's actual or demonstrably anticipated research or
development, or (b) which does not result from any work performed by you for the
Company.
You are hereby provided a copy of Section 2870 of the California Labor
Code:
SECTION 2870 OF THE CALIFORNIA LABOR CODE
"(a) Any provision in an employment agreement which provides that an
Employee shall assign or offer to assign any of his or her rights in
an invention to his or her employer shall not apply to an invention
that the Employee developed entirely on his or her own time without
using the employer's equipment, supplies, facilities, or trade secret
information except for those inventions that either:
(7) Relate at the time of conception or reduction to practice
of the invention to the employer's business, or actual or
demonstrably anticipated research or development of the
employer.
(8) Result from any work performed by the Employee for the
employer.
(b) To the extent a provision in an employment agreement purports to
require an Employee to assign an invention otherwise excluded from
being required to be assigned under subdivision (a), the provision is
against the public policy of this state and is unenforceable."
I hereby acknowledge receipt of this written notification.
/s/ ▇▇▇▇ ▇▇▇▇▇
---------------------------
EMPLOYEE
47
EXHIBIT B
4. Confidential Information. Except as set forth below, I acknowledge
------------------------
that at this time I know nothing about the business of the Company or the
Company's Confidential Information, except information which has been disclosed
to me by the Company (if none, so state):
N/A
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
2. Prior Inventions. Except as set forth below, I acknowledge that at
----------------
this time I have not made or reduced to practice (alone or jointly with others)
any inventions or innovations (if none, so state) other than for the Company:
N/A
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
3. Conflicting Relationships. Except as set forth below, I acknowledge
-------------------------
that I have no other current or prior agreements, relationships or commitments
which conflict with my relationship with the Company under this Agreement (if
none, so state):
N/A
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated: 12/6/00 /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------- --------------------------
EMPLOYEE
48
EMPLOYMENT AND NON-COMPETITION AGREEMENT
This Employment and Non-Competition Agreement is entered into on this 6th
day of December, 2000 between Ramp Networks, Inc. (the "Company"), and
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ("Employee").
WHEREAS, pursuant to the "Agreement and Plan of Merger" between Nokia
Corporation a company organized under the laws of the Republic of Finland
("Parent"), Blackbird Acquisition, Inc., a Delaware corporation and wholly-owned
subsidiary of Parent ("Purchaser"), and the Company, the Parent will acquire the
Company upon the terms and conditions set forth in the Agreement and Plan of
Merger; and
WHEREAS, Employee is a substantial shareholder of the Company and the
Agreement and Plan of Merger will result in the acquisition by Parent and
Purchaser of all of the issued and outstanding capital stock of the Company,
including all shares possessed by Employee; and
WHEREAS, the Agreement and Plan of Merger requires that certain key
employees of the company execute employment and non-competition agreements and,
accordingly, as a condition and as an inducement to Parent to enter into the
Agreement and Plan of Merger, the Employee has agreed to enter into this
Employment and Non-competition Agreement which restricts his future activities.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
convenants, terms and conditions set forth herein and in the Agreement and Plan
of Merger, and other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, THE PARTIES AGREE AS FOLLOWS:
1. Employment
----------
The Company shall continue the employment of Employee and Employee accepts
continued employment with the Company in accordance with the terms and
conditions set forth in this Agreement. Employee agrees to devote his full work
time, skill, knowledge, and attention to the business of the Company and the
performance of his duties under this Agreement and further agrees to abide by
all of the Company's decisions and policies.
2. Term
----
This Agreement is contingent on and shall become effective on the closing
date of the transaction contemplated in the Agreement and Plan of Merger
("Effective Date"). In the event Employee has not obtained legal authorization
to work in the United States in accordance with regulations of the Immigration
and Naturalization Service by the Effective Date, Employee shall not perform any
services for the Company and shall not be entitled to receive any compensation
under paragraph 4 of this Agreement, including bonus or stock options under the
Nokia/Blackbird Retention Plan, until such time as the Employee shall have
obtained employment authorization from the Immigration and Naturalization
Service. The term of this Agreement is for a period of two (2) years from the
Effective Date. However, this Agreement may be terminated earlier, as provided
in paragraph 7. This Agreement shall not become effective if the closing does
not occur under the Agreement and Plan of Merger. If the Employee's employment
shall continue beyond the term of this Agreement, the employment will continue
to be on an "at-will" basis.
49
3. Duties
------
Employee shall perform such duties as may be assigned by the Company from
time to time and the Employee's initial position shall be Director, Hardware
Engineering and Senior Hardware Architect of small office systems for the IP
routing group (SOS/IPRG)
4. Compensation
------------
Employee shall receive compensation from the Company for his employment as
follows:
i. Base Salary. Employee's base, annual gross salary shall be $USD
-----------
150,000 payable in the usual and customary methods and times
established by the Company.
j. Incentives. Employee will be eligible to participate in all standard
----------
Employee compensation and incentive plans. Employee's eligibility for
benefits is subject to any terms and limitations set forth under the
Nokia Global Bonus & Incentive Plan Policy. Employee will participate
in the Nokia/Blackbird Acquisition Retention Plan.
5. Benefits
--------
Employee will be eligible to participate in all standard Employee benefit
programs, including vacation, made available by the Company to other Company
Employees of comparable position. Employee's eligibility for benefits is subject
to any terms and limitations set forth in the Employee benefit plans.
6. Expense Reimbursement
---------------------
Employee shall be entitled to reimbursement for reasonable and necessary
"out of pocket" business expenses in accordance with the Company's usual and
ordinary practices.
7. Termination of Agreement and Compensation Upon Termination
----------------------------------------------------------
y. Notwithstanding paragraph 2, Employee's employment may be terminated
by the Company at any time at the option of the Company for any reason
or no reason at all; provided, however, that termination of this
Agreement shall not impair Employee's right, if any, to compensation
provided under paragraph 7(e). This Agreement shall automatically
terminate on the death of Employee.
z. Employee may terminate this Agreement at any time upon giving 30 days
notice in writing to the Company.
aa. The Employee will, at the time of separation, receive information
regarding health insurance continuation and retirement benefits under
federal law. To the extent that Employee has such rights, nothing in
this Agreement will impair those rights.
bb. Except as specifically provided in paragraphs 7(e) and (f), no
separation pay shall be payable in the event of the termination of this
Agreement prior to the completion of the term of this Agreement and
Employee shall only be entitled to his base salary earned prior to the
date of termination computed pro rata up to and including the date of
termination and to his accrued vacation as of the effective date of
termination. No
50
separation pay shall be payable if Employee cannot continue to perform
services under this Agreement due to lack of employment authorization
under immigration and naturalization regulations.
cc. In the event the Employee is terminated during the term of this
Agreement without "Good Cause" by the Company the Company will pay the
Employee a lump sum amount equivalent to twelve (12) months of base pay
(subject to applicable employment and tax withholdings) and the Company
will accelerate 50% of unvested stock options under the Nokia/Blackbird
Acquisition Retention Plan. If Employee elects health insurance
continuation (COBRA), the Company agrees that it will pay the premiums
for such coverage for twelve (12) months from the date of his
separation from the Company. For purposes of this Agreement, "Good
Cause" for termination shall include: breach of paragraphs 8, 9, 10 and
11 of this Agreement; willful and serious misconduct in the performance
of his job responsibilities; failure to maintain employment
authorization under regulations of the Immigration and Naturalization
Service; conviction of any felony; material dishonesty; committing a
fraud against the company; engaging in conduct demonstrably injurious
to and has a material detrimental affect on the Company or its business
or reputation; breach of fiduciary duty; or inability to perform the
essential functions of his position or any other material breach of any
provision of the Employment Agreement, which inability to perform or
material breach is not cured within ten (10) days following written
notice from the Company.
dd. Subject to paragraph 7(g) and 7(h), in the event Employee terminates
this Agreement with Employee's Good Reason, the Company will pay the
Employee a lump sum amount equivalent to twelve (12) months of base pay
(subject to applicable employment and tax withholdings) and the Company
will accelerate 50% of unvested stock options under the Nokia/Blackbird
Acquisition Retention Plan. Additionally, if Employee elects COBRA, the
Company agrees that it will pay the premiums for such coverage for
twelve (12) months from the date of his separation from the Company.
For purposes of this Agreement, Employee's Good Reason is defined as
(a) a substantial reduction in Employee's function or responsibilities
without the Employee's written consent; provided however, the parties
agree that a mere change in job titles shall not constitute a
substantial reduction in function or responsibilities, or (b) a
relocation of Employee's principal place of employment by more than 30
miles without the Employee's written consent or (c) a reduction of
Employee's salary during the term of this Agreement.
g. No separation pay shall be payable under paragraph 7(f) of this
Agreement if the reduction in Employee's function and responsibilities
is due to substantial growth of the Company, expansion of the Company
into additional lines of business or markets (including expansion into
businesses of any Nokia affiliate), or Company consolidations (or
reorganizations) of operations, not specifically targeted at the
Employee, with the operations of any present or future parent,
affiliate, or subsidiary. Employee shall not have the right to
terminate this Agreement for Employee's Good Reason and the Company
shall not be obligated to pay any separation pay to Employee under
paragraph 7(f) unless:
(i) the Employee has provided the Company notice in writing of the
acts giving rise to the claim of right to termination for
Employee's Good Reason within thirty (30) days after the
occurrence of any such acts;
51
(ii) and Employee provides the Company thirty (30) calendar days in
which to cure the conduct giving rise to the claim of right to
termination for Employee's Good Reason.
h. In the event the Company expressly waives in whole or in part in
writing the non-compete/non-solicitation provisions in paragraphs
10(c)(i), (c)(ii), and (c)(iii) the Company's separation payment under
paragraphs 7(e) and (f) shall be limited to six (6) months of base pay
and, if the Employee elects COBRA, will pay the premiums for such
coverage for six (6) months from the date of his separation from the
Company.
i. Paragraphs 8, 9, 10, 11, 12, 13, 18, and 19 of this Agreement will
survive and continue to be effective notwithstanding the termination of
this Agreement.
j. A termination of this Agreement does not in any way impair the
Employee's obligations under paragraph 10 of this Agreement unless the
covenants therein have been waived by the company expressly in writing
in accordance with the terms of this Agreement.
8. Proprietary Information & Confidentiality
-----------------------------------------
a. Employee understands that his employment with the Company creates a
relationship of confidence and trust with respect to any information of
a confidential or secret nature that he has acquired or will acquire as
a result of his employment with the Company that relates to the
business of the Company or to the business of any parent, subsidiary,
affiliate, customer or supplier of the Company or any other party with
whom the Company agrees to hold information of such party in confidence
("Proprietary Information"). Such Proprietary Information includes but
is not limited to inventions, trade secrets, product specifications,
inventions, designs, sketches, graphs, drawings, systems, computer
software and programs, current and planned research and development,
customer requirements, marketing plans, product plans, business
strategies, financial information, forecasts, and customer lists.
b. At all times, both during his employment and after its termination,
Employee will keep and hold all Proprietary Information in strict
confidence and trust, and he will not use or disclose any Proprietary
Information without the prior written consent of the Company, except as
may be necessary to perform his duties as an Employee of the Company
for the benefit of the Company. Upon termination of his employment with
the Company, Employee will promptly deliver to the Company all
documents and materials of any nature pertaining to his work with the
Company and he will not take with him any documents or materials or
copies containing any Proprietary Information. At the Company's
request, Employee will sign necessary confidentiality Agreements
required in accordance with non-disclosure Agreements between the
Company and any third-party for the purpose of protecting third-party
confidential information.
c. It shall not be a violation of this Agreement for Employee, after the
termination of employment with the Company, to use or disclose
information which is generally known to the public at the time of
disclosure or later becomes so generally known through no fault of the
Employee. The burden of showing that information is generally known to
the public shall rest with the Employee. Nothing in this provision,
52
however, shall be construed to affect the rights and obligations
contained in paragraph 10 of this Agreement.
9. No Breach of Prior Agreement
----------------------------
Employee represents that his performance of all the terms of this Agreement
and his duties as an Employee of the Company will not breach any invention
assignment, proprietary information or similar Agreement with any former
employer or other party. Employee also represents that he will not use in the
performance of his duties for the Company any documents or materials of a former
employer that are not generally available to the public or have not been legally
transferred to the Company.
10. Duty Not to Compete and Non-Solicitation
-----------------------------------------
m. Definitions
-----------
(xiii) "Competitor" means any person or entity which is involved in the
research, development, manufacture, sale, installation,
maintenance, merchandising or promotion of any "Competitive
Product" within the "Territory", including the following
entities: Cosine, Netscreen, ▇▇▇▇▇▇▇▇▇.▇▇▇, and Cacheflow.
(xiv) "Competitive Product" means IP Security Appliance Products
(software and hardware) for small-office and enterprise remote-
office customers, including appliances and or platforms which
combine network security applications such as Firewall,
Intrusion Detection, Anti Virus, and or VPN applications with
purpose built computing hardware.
(xv) "Territory" means the United States and any foreign countries,
regions, localities or territories world-wide in which the
Company, Parent, or any of their respective affiliates that
incorporates the specific technologies acquired in connection
with the Agreement and Plan of Merger, including any
derivatives, enhancements, modifications or further developments
of such technologies, is then doing business or marketing its
products or services, as the Company, Parent, or any of their
respective affiliates may then be constituted.
n. Unfair Competition During Employment
------------------------------------
Employee understands that during his employment, he will not, without
the Company's written consent, engage in any employment or business
other than for the Company, assist in any manner in any Competitor, or
have a financial interest in any Competitor.
o. Post-Employment Restrictions
----------------------------
For the consideration in the Agreement and Plan of Merger, Employee
agrees that he will not, for a period of eighteen months (18) months
from the Effective Date of this Agreement or one (1) year from
termination of employment with the Company or any successor, whichever
is later:
------
(i) Have a financial interest in any Competitor.
(xiii) Own, manage, operate, control, be employed by, contract with,
participate in, assist, or render services in any capacity
(including as Employee, agent, partner,
53
independent contractor, officer, director, lender, or
guarantor), directly or indirectly, to any Competitor.
(xiv) Directly or indirectly solicit, in any way encourage, or take
away customers and suppliers of the Company (or of any current
or future parent, affiliate, or subsidiary) for Employee's own
benefit or for the benefit of a Competitor .
(iv) Directly or indirectly solicit, in any way encourage, or take
away present or future employees or present or future
consultants of the Company (or of any present or future parent,
affiliate or subsidiary) for his own benefit or for the benefit
of any other party.
(x) The parties agree that the restrictions on Employee's
competitive activities created by paragraphs 10(c)(i),
10(c)(ii), and 10(c)(iii) above shall not extend beyond four (4)
years from the Effective Date. This paragraph does not in any
way impair or limit the restrictions set forth in paragraph
10(c)(iv) of this Agreement. In the event Employee is unable to
commence performing services for the Company due to lack of
employment authorization within two (2) years from the Effective
Date, the restrictions created by paragraphs 10(c)(i),
10(c)(ii), and 10(c)(iii) shall terminate and the offer of
employment reflected by this Agreement shall expire.
(xi) Paragraphs 10(c)(i), 10(c)(ii), and 10(c)(iii) do not restrict
Employee from accepting employment with a Competitor if the
Employee does not directly or indirectly assist or render any
services in connection with the research, development,
manufacture, sale, installation, maintenance, merchandising or
promotion of any "Competitive Product" within the "Territory."
Before commencing employment with that Competitor, the Employee
shall provide written notice to the Company informing it of the
Competitor with whom he has accepted employment and such notice
shall specify the duties to be performed in that position.
Employee shall also authorize this Competitor to provide
information to the Company regarding the job duties to be
performed in that position.
d. Financial Interest
------------------
For purposes of this Agreement, Employee shall be deemed to be engaged
in or have a financial interest in a business if the Employee is an
employee, officer, director, agent, consultant, advisor, independent
contractor, proprietor, principal or partner of any person which is
engaged in such business, or if the Employee, directly or indirectly,
performs such services for such person or if the Employee or any member
of the Employee's Immediate Family beneficially owns any equity
interest in or securities of, or any interest or securities convertible
into any equity interest in or securities of, any such person;
provided, however, that the ownership of publicly traded securities
having no more than three percent of the outstanding voting power of
any Competitor of the Company or any of their respective affiliates or
an investment of no more than 3% of any venture fund, shall be deemed
not to be a violation of this Agreement so long as the
54
Employee or such member of Employee's Immediate Family has no other
connection or relationship with such Competitor or such venture fund.
For purposes of this paragraph, Immediate Family is defined as the
spouse and minor children of the Employee.
m. Waiver of Non-Compete Obligations
---------------------------------
The Company has the right to waive, in whole on in part, the
restrictions set forth in paragraph 10. In order for a waiver of such
restrictions to be effective, the waiver must be in writing and signed
by the Vice President of Legal Operations for Nokia U.S.
n. Notification
------------
Employee authorizes the Company to notify actual or future employers of
the terms of this Agreement and his responsibilities under it.
11. Inventions and Creations
------------------------
a. Employee agrees that all inventions, discoveries, developments,
improvements, trademarks, copyrights, trade secrets, innovations, mask
works, ideas, contributions, and any other intellectual property of any
kind (herein called collectively "Inventions"), whether or not patented
or patentable, or otherwise protectable in law, which are conceived,
made, developed or acquired by Employee, either individually or
jointly, during his employment with the Company (including employment
with Company before and after the execution of this Agreement) and
which relate in any manner to Employee's work, the research or business
of the Company, or fields to which the business of the Company may
reasonably extend, shall belong to the Company. Employee agrees to
irrevocably assign and transfer to the Company his entire right, title,
and interest in and to the Inventions. Employee further agrees to
promptly and fully disclose the Inventions to the Company, in writing
if requested by the Company, and to execute and deliver or otherwise
assist any and all lawful applications, assignments, and other
documents which the Company requests for protecting the Inventions in
the United States, Canada or any other country. The Company shall have
the full and sole power to prosecute such applications and to take all
other action concerning the Inventions, and Employee agrees to co-
operate fully, at the expense of the Company, in the preparation and
prosecution of all such applications and in any legal actions and
proceedings concerning the Inventions.
b. Employee agrees to and does assign, convey, and transfer to the
Company any and all manuscripts, programs, writings, pictorial
materials, and other creations (called collectively "Creations"),
created by Employee, either individually or jointly, during his
employment by the Company and which relate to the business of the
Company. The Company shall have the full right to seek and procure
copyright on the Creations, and Employee shall co-operate fully, at the
expense of the Company, in securing copyrights and in any legal actions
and proceedings concerning the Creations.
c. Paragraph 11 shall not apply to inventions which an Employee cannot be
obligated to assign under Section 2870 of the California Labor Code
(hereinafter called "Section 2870"). Whether or not Employee believes
any invention is protected by Section 2870, Employee shall disclose
such invention to the Company in order to permit the Company to
determine such issues that may arise. The Company shall not disclose
information about such invention to any third party, and shall use such
information only for purposes of evaluating its rights under this
Employment Agreement. In the
55
event such invention is determined to be subject to Section 2870, the
Company shall promptly return to Employee all copies of any medium
containing information by Employee pursuant to this provision. Employee
shall, as a condition of this Agreement, sign Exhibits A and B to this
Agreement concurrently with the execution of this Agreement.
12. Remedies
--------
m. Upon a breach by Employee as determined by a court of competent
jurisdiction of any of the covenants contained in this agreement, the
Company shall suffer losses for which an award of damages does not
provide an adequate remedy and shall be entitled to have a court of
competent jurisdiction enter an injunction against Employee prohibiting
any further breach of the covenants contained herein. The parties agree
that the services to be performed are of a unique, special, and
extraordinary character. Therefore, in the event of any controversy
concerning the rights or obligations under this Agreement, such rights
or obligations shall be enforceable in a court of competent
jurisdiction at law or equity by a decree of specific performance. Such
remedy, however, shall be nonexclusive and shall be in addition to any
other remedies which the Company may have.
n. Except for claims of injunctive relief, any and all disputes that may
arise between the parties (and any claim by a party against an
affiliate of the other party) under or in connection with this
Agreement shall be submitted (together with any counterclaims and
disputes under or in connection with other agreements between the
parties) to final and binding arbitration heard by a single arbitrator
in accordance with the then-current Arbitration Rules of the American
Arbitration Association (the "AAA") relating to commercial disputes
(except as such rules may be modified by the terms of this arbitration
agreement), unless otherwise agreed in writing by the parties. Any
counterclaim not brought within 30 days after receipt of the
arbitration notice shall be barred. All matters within the scope of the
Federal Arbitration Act (9 U.S.C. (S)(S) 1 et seq.) shall be governed
-- ---
by it. The arbitration shall be conducted in Mountain View, California
area in the English language. The award shall include a written
statement of findings of fact and conclusions of law and the reasons on
which it is based. The award shall be enforceable in any court of
competent jurisdiction.
o. The prevailing party shall be entitled to recover reasonable
attorney's fees incurred in enforcement of this Agreement.
13. Assignment, Effect of Merger, Etc.
----------------------------------
This Agreement and the respective rights, duties, and obligations of
Employee may not be assigned or delegated by Employee. This Agreement inures to
the benefit of the Company and its affiliates, and successors and is enforceable
by any affiliate or a successor to the business of the Company. In accordance
with the Agreement and Plan of Merger, the Company shall continue as the
surviving corporation ("Surviving Corporation") as a result of the merger of the
Company with the Purchaser. All rights and obligations set forth in this
Agreement shall vest in the Surviving Corporation on the Effective Date.
14. Notice
------
Any notice required to be given in accordance with the provisions of this
Agreement shall be in writing and sent by registered or certified mail, return
receipt requested, by a recognized overnight courier service or by hand delivery
to the parties at the following addresses:
56
If to Company:
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With copies to:
Head of Human Resources ▇▇▇▇ ▇▇▇▇▇▇▇▇
Nokia Inc Nokia Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
________________________________________________________________________________
If to Employee:
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With copy to:
______________
______________
______________
Notice properly given by certified or registered mail shall be deemed effective
three (3) business days after mailing.
15. Entire Agreement
----------------
This Agreement constitutes the entire Agreement between the Company and
Employee concerning Employee's employment by the Company, and supersedes any and
all previous Agreements or understandings or rights, whether written or oral
(including any rights in unvested common stock or stock options or other rights
to compensation) between Employee and the Company concerning such employment.
This Agreement may not be modified orally. By signing this Agreement, Employee
does not waive any rights or obligations set forth in the Agreement and Plan of
Merger.
16. Waiver
------
The waiver by either party of the breach of any provision in this Agreement
shall not be construed as a waiver of any subsequent breach by either party.
57
17. Invalidity of Any Provision
---------------------------
The validity, legality or enforceability of the remainder of this Agreement
will not be affected even if one or more of the provisions of this Agreement
will be held to be invalid, illegal or unenforceable in any respect. Further,
if the period of time, the extent of the geographic area, or the scope of the
prescribed activities covered by paragraph 10 of this Agreement should be deemed
unenforceable, then this Agreement shall be construed to cover the maximum
period of time, geographic area and scope of prescribed activities (not to
exceed the maximum time, geographic area or scope set forth herein) as may be
valid under applicable law and each of the parties hereto shall request any
court considering the enforceability of this Agreement to construe and/or reform
it so as to render it enforceable to the maximum extent as provided above.
18. Applicable Law
--------------
This Agreement shall be interpreted and enforced in accordance with the
laws of the State of California. The parties agree that the paragraph 10 of
this Agreement relating to Employee's non-compete/non-solicitation covenants
have arisen out of sale of the business (including goodwill) and corporate
shares. Additionally, Employee specifically acknowledges that he is a key
employee and substantial shareholder of the Company and that the Agreement and
Plan of Merger will result in the purchase of all of the Company's shares
possessed by him subject to such terms and conditions set forth in the Agreement
and Plan of Merger.
19. Reasonableness of Restrictions and At-Will Employment
-----------------------------------------------------
Employee has read this agreement and agrees that the consideration provided
by the Company is fair and reasonable and further acknowledges the importance to
the Company of the Company's proprietary information and particular methods of
doing business, the post-employment restrictions on Employee's activities are
likewise fair and reasonable. Employee acknowledges that he has had the
opportunity to review this agreement with his own counsel and agrees to its
terms and conditions freely and voluntarily. Employee further acknowledges that
nothing in this agreement alters the "at will" nature of the employment
relationship, except that the at will employment relationship does not impair
Employee's right to compensation, if any, under paragraph 7 of this Agreement.
The parties have executed this Agreement on the date as indicated.
For Ramp Networks, Inc. For Nokia
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ Mika Vehuilainen
--- -------------- --------------------
Date: 12/6/00 Date: 12/6/00
------------ --------------
ATTEST:
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
----------------------------
EMPLOYEE
Date: 12/6/00
---------------------------
58
EXHIBIT A
WRITTEN NOTIFICATION TO EMPLOYEE
In accordance with Section 2872 of the California Labor Code, you are
hereby notified that this Agreement does not require you to assign to the
Company any invention for which no equipment, supplies, facility, or trade
secret information of the Company was used and which was developed entirely on
your own time, and (a) which does not relate (1) to the business of the Company
or (2) to the Company's actual or demonstrably anticipated research or
development, or (b) which does not result from any work performed by you for the
Company.
You are hereby provided a copy of Section 2870 of the California Labor
Code:
SECTION 2870 OF THE CALIFORNIA LABOR CODE
"(a) Any provision in an employment agreement which provides that an
Employee shall assign or offer to assign any of his or her rights in
an invention to his or her employer shall not apply to an invention
that the Employee developed entirely on his or her own time without
using the employer's equipment, supplies, facilities, or trade secret
information except for those inventions that either:
(9) Relate at the time of conception or reduction to practice
of the invention to the employer's business, or actual or
demonstrably anticipated research or development of the
employer.
(10) Result from any work performed by the Employee for the
employer.
(b) To the extent a provision in an employment agreement purports to
require an Employee to assign an invention otherwise excluded from
being required to be assigned under subdivision (a), the provision is
against the public policy of this state and is unenforceable."
I hereby acknowledge receipt of this written notification.
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
----------------------------
EMPLOYEE
59
EXHIBIT B
5. Confidential Information. Except as set forth below, I acknowledge
------------------------
that at this time I know nothing about the business of the Company or the
Company's Confidential Information, except information which has been disclosed
to me by the Company (if none, so state):
NONE
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
2. Prior Inventions. Except as set forth below, I acknowledge that at
----------------
this time I have not made or reduced to practice (alone or jointly with others)
any inventions or innovations (if none, so state) other than for the Company:
NONE
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
3. Conflicting Relationships. Except as set forth below, I acknowledge
-------------------------
that I have no other current or prior agreements, relationships or commitments
which conflict with my relationship with the Company under this Agreement (if
none, so state):
NONE
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated: ▇▇/▇/▇▇ /▇/ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------ ----------------------------
EMPLOYEE
60