{"id":39743,"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-inc3.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-and-non-competition-agreement-unitech-telecom-inc3","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-and-non-competition-agreement-unitech-telecom-inc3.html","title":{"rendered":"Employment and Non-Competition Agreement &#8211; Unitech Telecom Inc. and Hong Lu"},"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 Hong Lu ('Employee').\n\n                                       RECITALS\n\n     A.   Employee has been employed as an employee of Unitech Telecom, Inc., a\nDelaware corporation ('Unitech'); and\n\n     B.   Unitech, StarCom and certain other parties have entered into an\nAgreement and Plan of Reorganization, dated as of September 28, 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 President and Chief Executive Officer,\nUnitech upon and subject to the terms and conditions set forth in this\nAgreement.  Employee hereby agrees to accept such employment, upon and subject\nto the terms and conditions set forth in this Agreement. In addition, Unitech\nshall, subject to the Employee's consent, cause Employee to be nominated and\nelected to Unitech's Board of Directors.\n\n     (b)  DUTIES.  Effective upon the date hereof, Employee will perform all of\nthe services customarily associated with the position of President and Chief\nExecutive Officer, Unitech during the Employment Term, subject to the policies\nestablished by and the direction of the Board of Directors.  Employee also\nagrees to perform such other duties and responsibilities consistent with such\nposition as the Board of Directors of Unitech may assign to him from time to\ntime during the Employment Term.  During his Employment Term (as defined in\nsubsection (c) below), Employee shall carry out his duties and responsibilities\nhereunder in a diligent and competent manner and shall devote substantially all\nof his business time, attention and energy thereto.\n\n\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 Unitech.  Employee\nshall do such traveling as shall be reasonably necessary in connection with his\nduties and responsibilities hereunder.\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.\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 employee benefit plans and policies as in effect from\ntime to time in which Employee is eligible to participate, subject to the\napplicable terms and conditions of the particular benefit plan.  These benefit\nplans may include health care, life insurance, accidental death and disability,\nshort- and long-term disability, stock options, savings and\/or bonus plans\nprovided by, through or on behalf of Unitech.  Unitech may change, amend, modify\nor terminate any benefit or bonus plan from time to time.\n\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\n                                         -2-\n\n\n     4.   COVENANT NOT TO COMPETE.\n\n          (a)  NON-COMPETE.  In consideration of his employment, Employee agrees\nthat so long as he is an Employee of Unitech and, in the case of Employee's\ntermination of employment with Unitech or StarCom, two (2) years from the date\nof termination, Employee will not directly or indirectly engage in (whether as\nan employee, consultant, proprietor, partner, director or otherwise), or have\nany ownership interest in, or participate in the financing, operation,\nmanagement or control of, any person, firm, corporation or business that engages\nin a 'Restricted Business' in a 'Restricted Territory' (as such terms are herein\ndefined).  It is agreed that ownership of no more than 1% of the outstanding\nvoting stock of a publicly traded corporation shall not constitute a violation\nof this provision.  It is also agreed that this provision shall not apply if the\nEmployee's termination of employment with Unitech is due to (i) a breach by\nUnitech of the terms of this Agreement as adjudicated by a court of competent\njurisdiction (except for a failure of Unitech to pay Employee's salary as\nprovided in Section 2(a) hereof which, for these purposes, will not require such\nadjudication) or (ii) a final adjudication of Unitech as a bankrupt under any\nfederal or state law.\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 (ii) 2 years following the termination of Employee's\nemployment with Unitech, Employee shall not solicit, encourage, or take any\nother action which is intended to induce any other employee of Unitech to\nterminate his employment with Unitech.\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\n\n\n                                         -3-\n\n\nacknowledges and agrees that any actual or threatened breach of any of the\nprovisions of such Paragraph 4 may cause irreparable harm to Unitech and may\nnot be remediable by an action at law for damages and, therefore, Unitech\nshall be entitled to seek, as a non-exclusive remedy, in any court of\ncompetent jurisdiction, all equitable remedies therefor, including, without\nlimitation, a temporary or permanent injunction or specific performance of\nthe provisions hereof, without the necessity of showing any actual damage or\nthat monetary damages would not provide an adequate remedy at law or posting\na 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 and any employee, supplier or customer of Unitech.\n\n     6.   DEFINITIONS.  As used in this Agreement, the following terms shall\nhave the following meanings:\n\n          (a)  'Cause' shall mean:\n\n                    (i)    Employee's continued failure to perform his duties\nand responsibilities in good faith to the best of his ability after notice\nthereof from Unitech to Employee;\n\n                    (ii)   Employee personally engaging in knowing and\nintentional illegal 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\nany material respect the terms of this Agreement or the Confidentiality\nAgreement; or\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\n\n\n                                         -4-\n\n\nthe StarCom Network Systems intelligent services platform.  Notwithstanding\nthe foregoing, the Restricted Business shall apply only to products and\nservices in direct 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 thereunder, will not conflict with, or result in a violation or\nbreach of, any other agreement to which Employee is a party or any judgment,\norder or decree to 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 both parties and shall be\ndeemed given on the date of delivery, if delivered, or five days after mailing,\nif mailed first-class mail, certified, postage prepaid, to the following\naddresses:\n\n\n                                         -5-\n\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\n          (b)  If to Employee:\n\n               _____________________________________\n               _____________________________________\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\n                                         -6-\n\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     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                                         -7-\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\/ Hong Liang Lu                   By: \/s\/ Hong Liang Lu\n   --------------------------------        -------------------------------------\n                                        Name:\n                                             -----------------------------------\n                                        Title: President\n                                              ----------------------------------\n\n\n                                         -8-\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-39743","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\/39743","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=39743"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39743"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39743"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39743"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}