{"id":39742,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/employment-and-non-competition-agreement-unitech-telecom-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-and-non-competition-agreement-unitech-telecom-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-and-non-competition-agreement-unitech-telecom-inc.html","title":{"rendered":"Employment and Non-Competition Agreement &#8211; Unitech Telecom Inc. and Ying Wu"},"content":{"rendered":"<pre>\n                                UNITECH TELECOM, INC.\n\n                       EMPLOYMENT AND NON-COMPETITION AGREEMENT\n\n\n     This EMPLOYMENT AND NON-COMPETITION AGREEMENT ('Agreement'), dated as of \nthe 6th day of October, 1995, is entered into by and between Unitech Telecom, \nInc., a Delaware corporation ('Unitech'), and Ying Wu ('Employee').\n\n                                       RECITALS\n\n     A.   Employee has been employed as an employee of StarCom Network Systems,\nInc., a New Jersey corporation ('StarCom'); and\n\n     B.   Unitech, StarCom and certain other parties have entered into an\nAgreement and Plan of Reorganization, dated as of October __, 1995, (the\n'Reorganization Agreement'), which requires, among other things, that Employee\nenter into this Agreement in connection with the merger of a wholly owned\nsubsidiary of Unitech into StarCom (the 'Merger') pursuant to which StarCom will\nbe the surviving corporation in the Merger and a wholly owned subsidiary of\nUnitech (such surviving corporation being hereinafter referred to as 'StarCom'),\nall as more fully described in the Reorganization Agreement.\n\n     NOW, THEREFORE, IT IS HEREBY AGREED by and between the parties hereto as\nfollows:\n\n1.   EMPLOYMENT.\n\n     (a)  EMPLOYMENT.  During the Employment Term (as hereinafter defined)\nUnitech hereby employs Employee as its Executive Vice President on and subject\nto the terms and conditions set forth in this Agreement.  Employee hereby agrees\nto accept such employment, upon and subject to the terms and conditions set\nforth in this Agreement.  In addition, Unitech shall, subject to the Employee's\nconsent, cause Employee to be nominated and elected to Unitech's Board of\nDirectors and to StarCom's Board of Directors during the Employment Term.\n\n     (b)  DUTIES.  Effective upon the date hereof,  Employee will perform all of\nthe services customarily associated with the position of Executive Vice\nPresident during the Employment Term, including, without limitation, such\nservices on behalf of StarCom, subject to the policies established by and the\ndirection of the Board of Directors and Chief Executive Officer of Unitech.\nEmployee also agrees to perform such other duties and responsibilities\nconsistent with such position as the Board of Directors or the Chief Executive\nOfficer of Unitech may assign to him from time to time during the Employment\nTerm.  During his Employment Term (as defined in subsection (c) below), Employee\nshall carry out his duties\n\n\n\nand responsibilities hereunder in a diligent and competent manner and shall\ndevote substantially all of his business time, attention and energy thereto.\n\n     (c)  EMPLOYMENT TERM.  Employee's employment hereunder (the 'Employment\nTerm') shall commence on the date hereof.  Such employment shall be 'at will'\nemployment pursuant to applicable law.  If Employee's employment terminates for\nany reason other than (i) voluntary termination by Employee, (ii) termination as\na result of death or disability, or (iii) termination for Cause (as defined in\nSection 5(a)), Employee shall be entitled to sixty (60) days notice of\ntermination.\n\n     (d)  PLACE OF EMPLOYMENT.  During the Employment Term, Employee shall\nrender his services at the principal executive offices of StarCom and, from time\nto time as necessary, at another Unitech facility in the San Francisco Bay Area.\nEmployee shall do such traveling as shall be reasonably necessary in connection\nwith his duties and responsibilities hereunder.  Employee shall not be required\nto move his residence from New Jersey without Employee's consent.\n\n     (e)  Employee agrees to devote substantially all of his business time,\nattention and energy to the performance of his duties under this Agreement\nduring the Employment Term and shall perform such duties diligently, in good\nfaith and consistent with the best interests of Unitech.  Notwithstanding the\nforegoing, it is understood that the limited services to be provided to StarCom\nProducts, Inc. shall not be considered to be violative of this provision 1(e).\n\n2.   COMPENSATION.\n\n     (a)  SALARY.  During the Employment Term, Employee will receive a salary of\nnot less than $12,500 per month ($150,000 per annum), which shall be paid in\naccordance with Unitech's normal payroll practice and shall be subject to review\nbased upon Unitech's normal performance review practices.  Unless otherwise\nspecified herein, Unitech will make such deductions, withholdings and other\npayments from all sums payable pursuant to this Agreement which Employee\nrequests or which are required by applicable law for taxes and other charges.\nUnitech shall, in addition to Employee's salary, reimburse Employee for all\nordinary and necessary out-of-pocket expenses incurred by him in the performance\nof his services under this Agreement, subject to and upon receipt by Unitech of\ninvoices or other documentation in support thereof in accordance with Unitech's\npolicies regarding reimbursement of expenses.  Employee shall be entitled to\nreceive such bonus as shall be approved by the Board of Directors of Unitech in\neach year during the Employment Term.\n\n     (b)  BENEFIT PLANS.  Employee will be entitled to participate in or receive\nbenefits under Unitech's or StarCom's employee benefit plans and policies as in\neffect from time to time in which Employee is eligible to participate, subject\nto the applicable\n\n\n                                         -2-\n\n\nterms and conditions of the particular benefit plan.  These benefit plans may\ninclude health care, life insurance, accidental death and disability, short- and\nlong-term disability, stock options, savings and\/or bonus plans provided by,\nthrough or on behalf of Unitech or StarCom.  Unitech and\/or StarCom may change,\namend, modify or terminate any benefit or bonus plan from time to time.\n\nterms and conditions of the particular benefit plan.  These benefit plans may\ninclude health care, life insurance, accidental death and disability, short- and\nlong-term disability, stock options, savings and\/or bonus plans provided by,\nthrough or on behalf of Unitech or StarCom.  Unitech and\/or StarCom may change,\namend, modify or terminate any benefit or bonus plan from time to time.\n\n     3.   CONFIDENTIALITY AND PROPRIETARY INFORMATION AGREEMENT.  Concurrently\nwith the execution of this Agreement, Unitech and Employee will execute the\nConfidentiality and Proprietary Information Agreement ('Confidentiality\nAgreement') in the form attached hereto as Attachment 1.\n\n     4.   COVENANT NOT TO COMPETE.\n\n          (a)  NON-COMPETE.  In consideration of the exchange of Unitech Common\nStock for all of the outstanding equity securities of StarCom as contemplated by\nthe Reorganization Agreement, Employee agrees that so long as he is an Employee\nof Unitech and, in the case of Employee's termination of employment with Unitech\nor StarCom, two (2) years from the date of termination, Employee will not\ndirectly or indirectly engage in (whether as an employee, consultant,\nproprietor, partner, director or otherwise), or have any ownership interest in,\nor participate in the financing, operation, management or control of, any\nperson, firm, corporation or business that engages in a 'Restricted Business' in\na 'Restricted Territory' (as such terms are herein defined).  It is agreed that\nownership of no more than 1% of the outstanding voting stock of a publicly\ntraded corporation shall not constitute a violation of this provision.  It is\nalso agreed that this provision shall not apply if the Employee's termination of\nemployment with Unitech or StarCom is due to (i) a breach by Unitech of the\nterms of this Agreement as adjudicated by a court of competent jurisdiction\n(except for a failure of Unitech to pay Employee's salary as provided in Section\n2(a) hereof which, for these purposes, will not require such adjudication) or\n(ii) a final adjudication of Unitech as a bankrupt under any federal or state\nlaw.\n\n          (b)  NON-SOLICIT.  Employee agrees that until the later to occur of\n(i) the termination of Employee's agreement not to compete pursuant to\nSection 4(a) above or (ii) 2 years following the termination of Employee's\nemployment with Unitech or StarCom, Employee shall not solicit, encourage, or\ntake any other action which is intended to induce any other employee of Unitech\nor StarCom to terminate his employment with Unitech or StarCom.\n\n\n                                         -3-\n\n\n          (c)  SEVERABILITY.  The parties intend that the covenants contained in\nthe preceding paragraphs shall be construed as a series of separate covenants,\none for each county, city, state and other political subdivision of the\nRestricted Territory.  Except for geographic coverage, each such separate\ncovenant shall be deemed identical in terms to the covenant contained in the\npreceding paragraphs.  If, in any judicial proceeding, a court shall refuse to\nenforce any of the separate covenants (or any part thereof) deemed included in\nsaid paragraphs, then such unenforceable covenant (or such part) shall be deemed\neliminated from this Agreement for the purpose of those proceedings to the\nextent necessary to permit the remaining separate covenants (or portions\nthereof) to be enforced by such court.  It is the intent of the parties that the\ncovenants set forth herein be enforced to the maximum degree permitted by\napplicable law.\n\n          (d)  REFORMATION.  In the event that the provisions of this Section 4\nshould ever be deemed to exceed the scope, time or geographic limitations of\napplicable law regarding covenants not to compete, then such provisions shall be\nreformed to the maximum scope, time or geographic limitations, as the case may\nbe, permitted by applicable laws.\n\n          (e)  REMEDIES.  The Employee hereby acknowledges that the covenants\nand restrictions contained in this Section 4 are necessary for the protection\nof Unitech's business and goodwill and are considered by the Employee to be\nreasonable.  Accordingly, the Employee hereby acknowledges and agrees that\nany actual or threatened breach of any of the provisions of such Paragraph 4\nmay cause irreparable harm to Unitech and may not be remediable by an action\nat law for damages and, therefore, Unitech shall be entitled to seek, as a\nnon-exclusive remedy, in any court of competent jurisdiction, all equitable\nremedies therefor, including, without limitation, a temporary or permanent\ninjunction or specific performance of the provisions hereof, without the\nnecessity of showing any actual damage or that monetary damages would not\nprovide an adequate remedy at law or posting a bond therefor.\n\n               The Employee covenants and agrees that, if the Employee shall\nviolate the foregoing non-compete covenant,  Unitech shall be entitled to an\naccounting and repayment of all profits, compensation, commissions,\nremunerations, benefits or other payments which the Employee directly or\nindirectly has realized and\/or may realize as a result of, growing out of or in\nconnection with any such violation.  Such remedy shall be in addition to and not\nin limitation of any injunctive relief or other rights or remedies to which\nUnitech may be entitled at law or in equity or under this Agreement.\n\n     5.   Employee agrees that he shall not knowingly and intentionally\ninterfere in any manner with the contractual or employment relationship between\nUnitech or StarCom and any employee, supplier or customer of Unitech or StarCom.\n\n     6.   DEFINITIONS.  As used in this Agreement, the following terms shall\nhave the following meanings:\n\n\n                                         -4-\n\n\n          (a)  'Cause' shall mean:\n\n               (i)    Employee's continued failure to perform his duties and\nresponsibilities in good faith to the best of his ability after notice thereof\nfrom Unitech to Employee;\n\n               (ii)   Employee personally engaging in knowing and intentional\nillegal conduct;\n\n               (iii)  Employee being convicted of a felony, or\ncommitting an act of dishonesty or fraud or misappropriating property;\n\n               (iv)   Employee knowingly and intentionally breaching in any\nmaterial respect the terms of this Agreement or the Confidentiality Agreement;\nor\n\n               (v)    Employee's commencement of employment with another\nemployer while he is an employee of Unitech.\n\n          (b)  'Restricted Business' shall mean PHS-based wireless local loop,\noptical multiplexers, and the intelligent networking business, including\nproducts and\/or services related to the StarCom Network Systems intelligent\nservices platform.  Notwithstanding the foregoing, the Restricted Business shall\napply only to products and services relating to such businesses which are in\ndirect competition with Unitech and\/or StarCom.\n\n          (c)  'Restricted Territory' shall mean the counties, cities and states\nof the United States of America and the country of and each political\nsubdivision of Canada, Australia, Japan, Taiwan, People's Republic of China,\nHong Kong, Korea, Singapore, Thailand, each member nation of the European\nCommunity or the European Free Trade Association, and all other geographic areas\nthroughout the world.\n\n     7.   REPRESENTATIONS OF EMPLOYEE.  Employee represents that:\n\n          (a)  he (i) is familiar with the covenants not to compete and not to\nsolicit set forth in this Agreement, (ii) is fully aware of his obligations\nhereunder, including, without limitation, the length of time, scope and\ngeographic coverage of these covenants, (iii) finds the length of time, scope\nand geographic coverage of these covenants to be reasonable, and (iv) is\nreceiving specific, bargained-for consideration for his covenants not to compete\nand not to solicit;\n\n          (b)  the execution of this Agreement and the Confidentiality and\nProprietary Information Agreement, and the performance of Employee's obligations\nhereunder and there-\n\n\n                                         -5-\n\n\nunder, will not conflict with, or result in a violation or breach of, any\nother agreement to which Employee is a party or any judgment, order or decree\nto which Employee is subject.\n\n     8.   ASSIGNMENT.  This Agreement may not be assigned by Employee without\nthe written consent of Unitech.  This Agreement may not be assigned by Unitech\nwithout the written consent of Employee, except to an assignee who acquires all\nor substantially all of the business of Unitech, whether by merger,\nconsolidation, sale of assets or otherwise.  Unitech will require, as a\ncondition of any such assignment, that any such assignee assume and agree in\nwriting to perform this Agreement in the same manner and to the same extent that\nUnitech would be required to perform if no such succession had taken place.\n\n     9.   ENTIRE AGREEMENT.  This Agreement sets forth the entire agreement and\nunderstanding between Employee and Unitech with respect to the subject matter\nhereof, and supersedes any other negotiations, agreements, understandings,\nrepresentations or past or future practices, whether written or oral.\n\n     10.  NOTICES.  Any notice, report or other communication required or\npermitted to be given hereunder shall be in writing to the other party and shall\nbe deemed given on the date of delivery, if delivered, or five days after\nmailing, if mailed first-class mail, certified, postage prepaid, to the\nfollowing addresses:\n\n          (a)  If to Unitech:\n\n               Unitech Telecom, Inc.\n               333 Hegenberger Road, Suite 328\n               Oakland, CA 94621\n               Attention:  President\n\n               with a copy to:\n\n               Wilson, Sonsini, Goodrich &amp; Rosati\n               650 Page Mill Road\n               Palo Alto, CA 94304-1050\n               Attention:   Marcia K. Sterling, Esq.\n                            Carmen C. Chang, Esq.\n\n          (b)  If to Employee:\n\n               _____________________________________\n               _____________________________________\n               _____________________________________\n\n\n                                         -6-\n\n\n          (c)  With a copy to:\n\n               _____________________________________\n               _____________________________________\n               _____________________________________\n\n\n(or to such other address as any party hereto may designate by notice given as\nherein provided).\n\n     11.  GOVERNING LAW.  This Agreement shall be governed by and construed and\nenforced in accordance with the laws of the State of California without giving\neffect to principles regarding conflict of laws.\n\n     12.  AMENDMENTS.  This Agreement shall not be changed or modified in whole\nor in part except by an instrument in writing signed by each party hereto, nor\nshall any covenant or provision of this Agreement be waived except by an\ninstrument in writing signed by the party against whom enforcement of such\nwaiver is sought.\n\n     13.  EFFECTIVE DATE.  This Agreement shall become effective upon the\nEffective Time of the Merger.\n\n     14.  ATTORNEYS' FEES.  In the event of any legal action or proceeding to\nenforce or interpret the provisions hereof, the prevailing party shall be\nentitled to reasonable attorneys' fees, whether or not the proceeding results in\na final judgment.\n\n     15.  COUNTERPARTS.  This Agreement may be executed in several counterparts,\neach of which shall be an original, but all of which together shall constitute\none and the same agreement.\n\n     16.  EFFECT OF HEADINGS.  The section headings herein are for convenience\nonly and shall not affect the construction or interpretation of this Agreement.\n\n     17.  DEFINITIONS.  All capitalized terms used herein shall have the meaning\ndefined in the Reorganization Agreement, unless otherwise defined herein.\n\n     18.  DELAYS OR OMISSIONS.  No delay or omission to exercise any right,\npower or remedy accruing to either party upon any breach or default of the other\nparty hereto shall impair any such right, power or remedy of such non-defaulting\nparty, nor shall it be construed to be a waiver of any such breach or default,\nnor an acquiescence therein, nor of nor in any similar breach or default\nthereafter occurring; nor shall any waiver, single breach or default be deemed a\nwaiver of any other breach or default theretofore or thereafter occurring.\n\n\n                                         -7-\n\n\n     19.  INDEMNIFICATION.  During and after the Employment Term, Unitech shall\ndefend, indemnify and hold Employee harmless from any claims, causes of action,\nliabilities, damages, costs or expenses incurred by Employee based upon or in\nconnection with the performance of his services under this Agreement to the\nfullest extent permitted by the laws of the State of Delaware and of the By-Laws\nof Unitech (and of any such subsidiary).  This provision will survive the\nexpiration or termination of the Employment Term.\n\n     20.  BINDING EFFECT AND ASSIGNMENT.  This Agreement and all of the\nprovisions hereof shall be binding upon and inure to the benefit of the parties\nhereto and their respective successors, heirs, personal representatives and\npermitted assigns, but, except as otherwise specifically provided herein,\nneither this Agreement nor any of the rights, interests or obligations of the\nparties hereto may be assigned by any of the parties hereto without prior\nwritten consent of the other.\n\n\n                                         -8-\n\n\n     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of\nthe date first written above.\n\nEMPLOYEE                                UNITECH TELECOM, INC.\n\n\n\nBy: \/s\/ Ying Wu                         By: \/s\/ Hong Liang Lu\n   --------------------------------        ------------------------------------\n                                        Name:\n                                             ----------------------------------\n                                        Title: President\n                                              ---------------------------------\n\n\n               ** UNITECH EMPLOYMENT AND NON-COMPETITION AGREEMENT **\n\n                                         -9-\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[9205],"corporate_contracts_industries":[9516],"corporate_contracts_types":[9539,9544],"class_list":["post-39742","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-utstarcom-inc","corporate_contracts_industries-telecommunications__equipment","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/39742","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=39742"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39742"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39742"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39742"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}