Exhibit 10.15
EMPLOYEE
AGREEMENT
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TO:
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Robert
Sousa
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As of July 30, 2002
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This
Employee Agreement (the “Agreement”) is intended to
state the terms of your employment with Pine Tree Holdings, Inc.
(the “Company”). The Company hereby agree with you as
follows:
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1.
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Position
and Responsibilities .
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1.1
You shall serve as President of the Company, a wholly owned
subsidiary of Country Road Communications, LLC (“Country
Road”), and shall perform the duties customarily associated
with such capacity from time to time and at such place or places as
the Company shall designate as appropriate and necessary in
connection with such employment. You shall report to the CEO of
Country Road.
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1.2 You will,
to the best of your ability, devote your full time (as described in
Exhibit A ) and best efforts to the performance of your
duties hereunder and the business and affairs of the Company. You
agree to perform such duties as may be assigned to you by or on
authority of the Company’ Boards of Directors from time to
time.
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1.3 You will
duly, punctually, and faithfully perform and observe any and all
rules and regulations that the Company may now, or shall hereafter,
establish governing the conduct of its business.
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1.4 The
Company will provide you the same indemnification rights as are
afforded all officers and directors of the Company with respect to
your duties and responsibilities described herein.
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2.
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2.1 The term
of this Agreement shall be for the term set forth on
Exhibit A , annexed hereto, commencing on July 30,
2002. Your employment with the Company may be terminated at any
time as provided herein.
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2.2 The
Company shall have the right, on written notice to you, to
terminate your employment:
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(a)
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immediately at
any time for Cause (as hereinafter defined); or
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(b)
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at any time
without Cause; provided that if your termination is without Cause,
the Company shall (i) pay you all salary accrued but unpaid as of
the termination date, and (ii) within ninety (90) days following
termination, pay you a lump-sum amount equivalent to twelve months
month’s Base Salary (as defined in Exhibit A), and any
accrued bonus, less applicable taxes and other required
withholdings and any amounts you may owe to the Company.
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2.3 For
purposes of Section 2.2, the term “Cause” shall
mean:
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(a)
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your failure or
refusal to perform the services specified herein, or to carry out
any reasonable and lawful directions of the Board of Directors of
the Company with respect to the services to be rendered, or the
manner of rendering such services by you;
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(b)
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(c)
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fraud or
embezzlement involving the assets of the Company, its customers,
suppliers, or affiliates, or other dishonest act or deliberate
attempt to injure the Company;
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(d)
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gross
negligence or willful misconduct;
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(e)
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inability for a
continuous period of at least ninety (90) days in the aggregate
during any 360 day period to perform duties hereunder due to a
physical or mental disability that is incapable of reasonable
accommodation under applicable law, including but not limited to
the Americans with Disabilities Act of 1990, as amended;
or
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(f)
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breach of any
term of this Agreement.
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Any dispute,
controversy, or claim arising out of; in connection with, or in
relation to this definition of “Cause” shall be settled
by arbitration as provided in the Agreement.
2.4 You shall
have the right to terminate this Agreement upon not less than sixty
(60) days’ prior written notice to the Company.
3.
Compensation . Except as otherwise provided in this Agreement,
you shall receive the compensation and benefits set forth on
Exhibit A hereto for all services to be rendered by you
hereunder.
4.
Other Activities During Employment . You hereby agree that during your employment
hereunder, you will not, directly or indirectly, engage (a)
individually, (b) as an officer, (c) as a director, (d) as an
employee, (e) as a consultant, (f) as an advisor, (g) as an agent
(whether a salesperson or otherwise), (h) as a broker, or (i) as a
partner, co-venturer, stockholder, or other proprietor owning
directly or indirectly more than one percent (1%) interest in any
firm, corporation, partnership, trust, association, or other
organization that is engaged in the acquisition or operation of
rural telephone Company in direct geographical competition with the
Company or Country Road, or any other line of business engaged in
by the Company or Country Road (such firm, corporation,
partnership, trust, association, or other organization being
hereinafter referred to as a “Prohibited Enterprise”).
You hereby represent that you are not engaged in any of the
foregoing capacities (a) through (i) in any Prohibited
Enterprise.
5.
Former
Employers . You
represent and warrant that your employment by the Company will not
conflict with, and will not be constrained by, any prior or current
employment or consulting agreement, or any other relationship
whether oral or written. You represent and warrant that you do not
possess confidential information arising out of any such employment
agreement, consulting agreement, or relationship which, in your
best judgment, would be utilized in connection with your employment
by the Company.
6.
Proprietary
Information and Inventions . You agree to execute, deliver, and be bound by
the provisions of the Proprietary Information and Inventions
Agreement attached hereto as Exhibit B .
7.
Post-Employment
Activities .
7.1 For
a period of one (1) year (or for a lesser period should the Company
so determine) after the termination or expiration, for any reason,
of your employment with the Company hereunder (the
“Non-Compete Period”), absent the Company’ prior
written approval, you will not directly or indirectly engage in
activities similar or reasonably related to those in which you
shall have engaged hereunder during the one (1) year immediately
preceding such termination or expiration, nor render services
similar or reasonably related to those which you shall have
rendered hereunder during such one (1) year, for any person or
entity whether now existing or hereafter established which directly
competes with (or proposes or plans to directly geographically
compete with) the Company (a “Direct Competitor”) in
any line of business engaged in or under development by the
Company; nor shall you entice, induce, or encourage, directly or
indirectly, any of the Company’ other employees to engage in
any activity which, were it done by you, would violate any
provision of the Proprietary Information and Inventions Agreement,
or this Section 7. As used in this Section 7.1, the term “any
line of business engaged in or under development by the
Company” shall be applied as at the date of termination of
your employment, or, if later, as at the date of termination of any
post-employment consultation.
7.2
During the Non-Compete Period, you agree that you will not,
directly or indirectly: (i) attempt to contact, recruit, or solicit
any customers of the Company; (ii) enter into any agreement with
any party to recruit or solicit such customers; (iii) request any
customers of the Company to curtail or cancel their business with
the Company; (iv) induce any employee of the Company to leave the
Company’ employment; (v) assist any other person or entity in
requesting or inducing any such employee of the Company to leave
such employment; (vi) induce or attempt to induce any employee
of the Company to join with you in any capacity, direct or
indirect; or (vii) disclose to anyone or publish or use any names
of any customers of the Company or any proprietary, secret, or
confidential information of the Company (which, for the purposes
hereof, shall be as described or defined in the Proprietary
Information and Inventions Agreement).
8.
Remedies
. Your obligations under
the provisions of Sections 5, 6, and 7 of this Agreement shall
survive the expiration or termination of your employment (whether
through your resignation or otherwise). You acknowledge that a
remedy at law for any breach or threatened breach by you of the
provisions of the Proprietary Information and Inventions Agreement
or Section 7 would be inadequate, and you therefore agree that the
Company shall be entitled to injunctive relief in case of any such
breach or threatened breach.
9.
Assignment
. This Agreement and the
rights and obligations of the parties hereto shall bind and inure
to the benefit of any successor or successors of the Company by
reorganization, merger, or consolidation, and any assignee of all
or substantially all of its business and properties, but, except as
to any such successor or assignee of the Company, neither this
Agreement nor any rights or benefits hereunder may be assigned by
the Company or by you, except by operation of law.
10.
Interpretation
. IT IS THE INTENT OF THE
PART1E.S THAT in case any one or more of the provisions contained
in this Agreement shall, for any reason, be held to be invalid,
illegal, or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect the other
provisions of this Agreement, and this Agreement shall be construed
as if such invalid, illegal, or unenforceable provision had never
been contained herein. MOREOVER, IT IS THE INTENT OF THE PARTIES
THAT in case any one or more of the provisions contained in this
Agreement shall for any reason be held to be excessively broad as
to duration, geographical scope, activity, or subject, such
provision shall be construed by limiting and reducing it as
determined by a court of competent jurisdiction, so as to be
enforceable to the extent compatible with applicable
law.
11.
Notices .
Any notice which the Company are
required to or may desire to give you shall be given by personal
delivery, or registered or certified mail, return receipt
requested, addressed to you at your address of record with the
Company, or at such other place as you may from time to time
designate in writing. Any notice which you are required or may
desire to give to the Company hereunder shall be given by personal
delivery, or by registered or certified mail, return receipt
requested, addressed to the Company at their principal offices, or
at such other offices as the Company may from time to time
designate in writing. The date of personal delivery or the date of
making any notice under this Section shall be deemed to be the date
of delivery thereof.
12.
Waivers .
If either party should waive any
breach of any provision of this Agreement, such party shall not
thereby be deemed to have waived any preceding or succeeding breach
of the same or any other provision of this Agreement.
13.
Complete Agreement;
Amendments . This
Agreement, including Exhibits A , and B ,
attached hereto, is the entire agreement of the parties with
respect to the subject matter hereof, superseding any previous oral
or written communications, representations, understandings, or
employment agreements with the Company, or any affiliate, agent,
officer, or representative thereof. Any amendment to this
Agreement, or waiver by the Company of any right hereunder, shall
be effective only if evidenced by a written instrument executed by
the parties hereto, upon authorization of the Boards of Directors
of the Company.
14.
Headings .
The headings of the Sections hereof
are inserted for convenience and shall not be deemed to constitute
a part hereof, or to affect the meaning of this Agreement in any
way.
15.
Counterparts
. This Agreement may be
signed in two counterparts, each of which shall be deemed an
original and both of which together shall constitute one
agreement.
16.
Governing Law
. This Agreement shall be
governed by and construed under the internal laws of the State of
Delaware, excluding its conflict of law principles.
17.
Independent Advice
. You hereby acknowledge
that you have been advised of the opportunity available to you to
seek and obtain the advice of legal counsel and financial advisors
of your own choosing prior to and in connection with your execution
of this Agreement. In addition, you hereby affirm that you have
either obtained such advice or knowingly and willingly decided to
forego the opportunity to avail yourself of such advice.
18.
Arbitration
. In the event of any
dispute, controversy or claim arising out of or relating to this
Agreement, or concerning the respective rights or obligations of
the parties, the parties agree to try in good faith to settle the
dispute, controversy or claim for a period of at least thirty (30)
days from receiving written notice of the nature of the dispute.
Within ten (10) days after such written notice is received, or by
mutual agreement, one or more representatives of each of the
parties shall meet at the Company offices to attempt to amicably
resolve the dispute. In the event that any such dispute,
controversy or claim is not resolved in such time, the parties
agree to submit the matter to arbitration administered by the
American Arbitration Association in accordance with its then
existing Commercial Arbitration Rules. The arbitration shall take
place before a single arbitrator in the Borough of Manhattan, New
York, New York, and in no other place. The decision of the
arbitrator in the matter shall be final and binding upon the
parties and judgment on the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof. The parties agree
that the arbitrator may award (i) compensatory damages and
reasonable attorneys’ fees and expenses to the prevailing
party in such arbitration, but shall have no authority to award
punitive, consequential, indirect, incidental or special damages,
and (ii) any equitable remedy including specific performance
or injunctive relief, that the arbitrator deems appropriate. Except
as required by law, the parties and an arbitrator shall keep the
existence, content and results of any arbitration hereunder
strictl
