EMPLOYMENT AGREEMENT
Between
PENNS LIGHT LIMITED PARTNERSHIP
and
GARY A. RAWDING
The purpose of this Agreement is to state the terms of the employment
relationship between Penns Light Limited Partnership ("Employer"), and Gary A.
Rawding ("Employee").
1. Term of Agreement. Employer and Employee agree that the Employee
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will be employed by Employer, beginning September 15, 1994, until September 15,
1997, unless employment is sooner terminated as provided herein. Upon the
expiration of the three year term of this Agreement, if not sooner terminated as
provided herein, this Agreement shall continue on a month-to-month basis.
2. Position and Duties.
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2.1 Employer and Employee agree that Employee will be employed as
the President and that in this capacity, Employee's responsibilities will
include, but are not limited to: hiring and managing the senior management team
for Employer, reporting to Employer's Executive Committee on the progress of
Employer's business plan, and management of the day to day affairs of Employer,
subject to further direction by Employer's Executive Committee.
It is agreed that from time to time Employee may be assigned other
duties in addition to those described above and that Employee's responsibilities
may be modified or expanded at any time by Employer in order to accommodate the
needs of Employer. It is further agreed that as the President of Employer, the
hours which Employee is required to work will vary considerably. Employee
agrees that work in excess of forty (40) hours per week is a regular and normal
part of Employee's responsibilities for which he is compensated, and does not in
any way constitute overtime for which Employee is entitled to receive additional
compensation.
In addition to his employment responsibilities, Employee agrees to
serve on the Employer's Executive Committee, if selected as a member of the
Executive Committee under Section 6.9 of the Agreement of Limited Partnership of
Employer.
2.2 Employee agrees to devote his full business time and efforts to
his duties with Employer and agrees that
Employee will not directly or indirectly engage or participate in any activities
while employed with Employer that would conflict with the best interests of
Employer.
2.3 Employee shall have the authority to hire and fire other
employees of the company under his supervision.
3. Employer's Covenants.
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3.1 Employer agrees to furnish Employee with such equipment,
employees and services as are necessary to perform Employee's obligations under
this Agreement.
3.2 Employer shall reimburse Employee for all reasonable business
expenses incurred by Employee while on Employer's business. Employee shall
maintain such records as will be necessary to enable Employer to properly deduct
such items as business expenses when computing Employer's federal income tax.
4. Compensation.
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4.1 For all services rendered by Employee under this Agreement,
Employer shall pay Employee a salary of One Hundred Ten Thousand Dollars
($110,000.00) per year. Employee shall be paid this salary, less all lawful and
agreed upon deductions, in the same manner as shall be applicable to employees
of Employer generally. If Employer decides to terminate its business, or decides
not to pursue the business of developing a competitive fiber-optic based
telecommunications company in the State of Pennsylvania, Employer shall
nonetheless pay such salary to Employee through September 1997.
4.2 Employer and Employee agree that Employee's job performance
will be evaluated on a regular basis during the term of this Agreement, but that
the first date for consideration of an increase in Employee's salary shall be
one year after the date of this Agreement.
5. Bonus. Employer agrees to pay Employee a total bonus of $50,000
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for the five-quarter period ending December 31, 1995. Each bonus shall be paid
on a quarterly basis, in an amount up to $10,000 per quarter, not later than 30
days after the end of each such quarter provided that during such quarter
Employer achieves the goals and milestones identified in the attached Exhibit.
6. Fringe Benefits.
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6.1 Employer and Employee agree that during the term of this
Agreement, Employee shall be entitled, at a minimum, to participate in all
fringe benefits and incentive compensation plans as may be authorized and
adopted from time to time by the Employer and for which Employee is eligible.
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6.2 Employee shall be entitled to ten (10) days of sick leave,
with pay, per contract year of employment.
7. Vacation. Employee shall be entitled to three (3) weeks' paid
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vacation per contract year. If this Agreement is terminated before its
expiration date by either Employer or Employee, Employee shall be paid for all
previously accrued and unused vacation time.
8. Confidential Information. As a result of Employee's employment with
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Employer, Employee will be acquiring and making use of confidential information
about Employer's business. Employee agrees that he will respect the confidences
of Employer and will not at any time during or within two (2) years following
the period of his employment, directly or indirectly divulge or disclose for any
purpose whatsoever, or use for his own benefit, any confidential information
that has been obtained by or disclosed to Employee as a result of his
employment.
9. Covenant Not to Compete. In view of the unique value to Employer of
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Employee's services and because of the confidential information to be obtained
by or disclosed to Employee as described above, Employee agrees as follows:
9.1 That during his employment with Employer, and for a period of
two (2) years after termination of such employment, Employee will not directly
or indirectly, as principal, owner, employee, or agent, engage in any business
competing with the business of Employer (or an affiliate of Employer) within the
State of Pennsylvania or in any other state in which Employer (or an affiliate
of Employer) is conducting business or exploring business opportunities at the
time of termination of Employee's employment with Employer; and
9.2 That during his employment with Employer, and for a period of
two (2) years after termination of his employment, he will not directly or
indirectly solicit for employment or employ any employee of Employer; and
9.3 That during his employment with Employer, and for a period of
two (2) years after termination of his employment, he will not directly or
indirectly, solicit business from any customers of Employer; and
9.4 That if Employee violates any of the provisions of these
subparagraphs or paragraph 8, Employer shall be entitled to receive from
Employee reimbursement any and all damages caused by such breach. It is
understood and agreed that this remedy is in addition to, and not a limitation
on, any injunctive relief for other rights or remedies to which Employer is or
may be entitled to under law; and
9.5 That if any provisions of these subparagraphs or paragraph 8
are held to be invalid or unenforceable, the
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remaining provisions shall, nevertheless, continue to be valid and enforceable
as though the invalid or unenforceable parts had not been included.
9.6 In the event either party is required to institute legal action
to enforce the provisions of the confidential information or the noncompetition
agreements, the prevailing party in such litigation shall be entitled to recover
a reasonable attorney's fee as well as his out-of-pocket expenses.
10. Termination. This Agreement shall be terminated upon the
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occurrence of any one of the following events:
10.1 Death of Employee.
10.2 If Employee shall have been incapacitated from illness,
accident or other disability and unable to perform his normal duties hereunder
for a cumulative period of three (3) months in any period of twelve (12)
consecutive months, upon Employer or Employee giving the other party not less
than thirty (30) days' written notice. In the event of such termination,
Employee shall be entitled to all benefits due Employee under any accident,
sickness, disability, health or hospitalization plan or insurance policy of
Employer then in effect.
10.3 Expiration of this Agreement or any renewal or extension
thereof.
10.4 By either party to this Agreement with thirty (30) days'
notice.
10.5 Immediately by Employer for cause. For purposes of this
subparagraph, "cause" includes, but is not necessarily limited to, the
following:
(a) Breach by Employee of any material provision of this
Agreement, after written notice of such breach from Employer and, if such breach
is capable of being cured, a thirty-day period to cure such breach (with such
cure period to be extended for up to one additional thirty-day period if
Employee is diligently pursuing a cure of such breach but cannot cure such
breach within thirty days after notice);
(b) Material violation by Employee of any statutory or common
law duty of loyalty to Employer; or
(c) Personal or professional conduct of Employee, which, in the
reasonable and good faith judgment of Employer injures or tends to injure the
reputation of Employer or otherwise adversely affects the interests of Employer,
after written notice from Employer and, if such event is capable of being cured,
a thirty-day period to cure such breach (with such
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cure period to be extended for up to one additional thirty-day period if
Employee is diligently pursuing a cure of such breach but cannot cure such
breach within thirty days after notice). Such conduct may include, but is not
limited to, dishonesty, chronic absenteeism, alcoholism, drug addiction, sexual
harassment and conviction of a felony or misdemeanor involving moral turpitude.
10.6 Upon the cessation of business by Employer, provided that the
noncompetition and confidentiality provisions contained in paragraphs 8 and 9 of
this Agreement shall continue in full force and effect according to their terms
for a period of two (2) calendar years after cessation of Employer's business.
10.7 Upon the voluntary or mandatory retirement of Employee.
11. Effect of Termination. Upon termination of Employee's employment,
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Employer agrees to pay Employee all salary, fringe benefits, bonuses or other
remuneration which is due and owing to Employee as of the date of termination,
less legal deductions or offsets Employee may owe to Employer for such items as
salary advances or loans. If Employer terminates Employee's employment under
Sections 10.4 or 10.6, Employer shall continue to pay Employee his then-current
monthly salary under Section 4.1 (but not including any bonuses under Section 5)
until one year after termination, but Employer shall not be liable to Employee
for any other amount upon such termination. Employer may pay such amount
monthly or in one or more installments with a reasonable present value discount.
Employee agrees that his signature on this Agreement constitutes his
authorization for all such deductions. Employee agrees to return to Employer
all of Employer's property of any kind which may be in Employee's possession.
In the event of termination of this Agreement, the terms and provisions of this
Agreement shall also terminate, with the exception of the noncompetition and
confidentiality provisions provided in the paragraphs above. Such provisions
shall continue in full force and effect according to their terms for a period of
two (2) calendar years after termination of Employee's employment.
12. Construction of Agreement.
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12.1 Essential Terms and Modification of Agreement. It is
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understood and agreed that the terms and conditions described in this Agreement
constitute the essential terms and conditions of the employment arrangement
between Employer and Employee, all of which have been voluntarily agreed upon.
Employer and Employee agree that there are no other essential terms or
conditions of the employment relationship that are not described within this
Agreement, and that any change in the essential terms and conditions of this
Agreement will be written down in a supplemental agreement which shall be signed
by both Employer and Employee before it is effective.
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12.2 Severability. If any term, covenant, condition or provision
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of this Agreement or the application thereof to any person or circumstance
shall, at any time, or to any extent, be determined invalid or unenforceable,
the remaining provisions hereof shall not be affected thereby and shall be
deemed valid and fully enforceable to the extent permitted by law.
12.3 Notices. Any notice hereunder shall be sufficient if in
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writing and delivered to the party or sent by certified mail, return receipt
requested and addressed as follows:
a. If to Employer: Dennis M. Weibling
2320 Carillon Point
Kirkland, WA 98083-2908
b. If to Employee: Gary A. Rawding
410 Harbour Ridge Lane
Dowington, PA 19335
Either party may change the address herein specified by giving to the other
written notice of such change as provided in this paragraph.
12.4 Governing Law. This Agreement is made and shall be construed
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and performed under the laws of the State of Washington.
12.5 Waiver of Agreement. The waiver by Employer of a breach of any
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provision of this Agreement by Employee shall not operate or be construed as a
waiver by Employer of any subsequent breach by Employee.
12.6 Captions. The captions and headings of the paragraphs of this
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Agreement are for convenience and reference only and are not to be used to
interpret or define the provisions hereof.
12.7 Assignment and Successors. The rights and obligations of
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Employer under this Agreement shall inure to the benefit of and be binding upon
the successors and assigns of Employer. The rights, and obligations of Employee
hereunder are
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nonassignable. Employer may assign its rights and obligations to any entity
in which Employer, or a company affiliated to Employer, has a majority ownership
interest.
DATED this 15th day of September, 1994.
EMPLOYEE: EMPLOYER:
/s/ Gary A. Rawding Penns Light Limited Partnership
- -------------------------------- By: FiberLink, Inc.,
Gary A. Rawding general partner
By: /s/ Dennis M. Weibling
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Title: President
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EXHIBIT
[This Exhibit will list goals for project construction,
financial goals, employee hiring goals
and regulatory goals to be negotiated.]
EXHIBIT
The following summarize the goals and objectives that G. Rawding must achieve so
as to receive his designated quarterly bonus. The specifics of the Quarterly
goals will be mutually developed at a minimum of each Quarter for the subsequent
two (2) Quarters, so as to accommodate the dynamic situations that the company
will face.
QUARTER 1: OCTOBER, 1994 - DECEMBER, 1994
. Company Mission Statement and Customer Goals
. Staffing and Management Team in place
. Smooth working office facilities
. '95 budget In place with appropriate monitoring and controls
. '94 - '95 Projects defined and teams assigned
. PP&L Closed for ROW
. Regulatory groundwork and State and Federal Approvals
. Preliminary Route Design and RFP for General Contractor
. Network Design and Equipment Vendor chosen
QUARTER 2: JANUARY, 1995 - MARCH, 1995
. Marketing and Sales Plan:
IXCs
Independent Telephone and Adjacent Fiber Companies
Commercial Accounts
. General Contractor Decision
. Construction Plan
. ROW Alternatives
. IXC relationships and Work order processes defined
. A/P systems and material controlled
QUARTERS 3, 4 & 5: APRIL, 1995 - DECEMBER, 1995
. Product and Service Roll-out Plans
. Construction Goals
. Employee training and Customer Service Goals
. Satellite offices defined
. System testing and service implementation plans
. Begin customer services and billed revenue
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