Employment Agreement Between The Company And Nark B. Skurla



 Exhibit 10.41 
  
 EMPLOYMENT AGREEMENT 
  
 This Employment Agreement (this “Agreement”) is entered into as of the date of signature last affixed hereto, by and between
Visual Networks Operations, Inc., a company organized under the laws of Delaware (“Visual” or the “Employer”) with its principal place of business at 2092 Gaither Road, Rockville, Maryland, and Mark B.
Skurla, an individual (hereafter the “Executive”). 
  
 WITNESSETH: 
  
 WHEREAS, VISUAL desires to employ
the Executive, and the Executive desires to accept such employment, on the terms and conditions set forth herein; 
  
 WHEREAS, VISUAL and the Executive shall enter into an EMPLOYEE CONFIDENTIALITY, INVENTION ASSIGNMENT AND NON-SOLICITATION AGREEMENT
(“Confidentiality Agreement”), attached hereto as Exhibit A; 
  
 NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, VISUAL and Executive hereby agree as follows: 
  
 ARTICLE 1 
  
 POSITION OF EMPLOYMENT

  

	1.1	Title and Position. VISUAL agrees to employ Executive in the following position: Executive Vice President, Worldwide Sales. 

  

	1.2	Start Date. March 7, 2005 (the “Start Date”). 

  

	1.3	Exclusive Devotion of Business Time. VISUAL agrees to employ the Executive and the Executive agrees to devote his full business time, effort, skills and loyalty to the
business of VISUAL, to effectively carry out his responsibilities to VISUAL hereunder and to render his services and skills in the furtherance of the business of VISUAL, except for during permitted vacation periods and reasonable periods of illness
or other incapacity. This Section 1.3 does not prevent the Executive from: (i) serving on civic and charitable boards, subject to VISUAL’s policies and standards; and (ii) managing his investments and the investments of his immediate family,
subject VISUAL’s policies and standards. Despite anything in this Section 1.3 to the contrary, the activities referenced in clauses (i) and (ii) above shall not, individually or in the aggregate, interfere with the performance of the
Executive’s duties under this Agreement. To the extent that Executive desires to act as a member of the Board of Directors of another entity, VISUAL and the Executive shall, in advance of undertaking such Board service, discuss and come to an
arrangement suitable to both the Executive and VISUAL. 

  

	1.4	Conflict with Company Policies. The terms and conditions of Executive’s employment will, to the extent not addressed in this Agreement, be governed by VISUAL’s
company policies (“Policies”). In the event of a conflict between this Agreement and the Policies, the terms of this Agreement shall govern. 

  
 ARTICLE 2 
  
 DUTIES, AUTHORITY AND PERFORMANCE 
  

	2.1	Performance. Executive acknowledges and agrees that he is being offered a position of employment by VISUAL with the understanding that he possesses a unique set of skills,
abilities, and experiences which will benefit VISUAL. Executive agrees that his continued employment with VISUAL is contingent upon his successfully performing his duties as set forth in this Agreement. 

  

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	2.2	Duties and responsibilities. VISUAL agrees to employ the Executive as the Executive Vice President, Worldwide Sales of VISUAL. Executive will report to Chief Executive
Officer (the “CEO”) of Visual Networks, Inc. The primary responsibilities of the Executive shall be determined and may be modified by the CEO from time to time. On the date hereof, the duties and responsibilities of the
Executive generally are as follows: 

  

	 	2.2.1	Executive shall render to the very best of his ability, on behalf of VISUAL, and shall undertake diligently, all duties assigned to him by the CEO. 

  

	 	2.2.2	In the performance of the Executive’s duties hereunder, he must comply in each and every respect with applicable laws, rules and regulations applicable to VISUAL.


  

	 	2.2.3	As Executive Vice President, Worldwide Sales of VISUAL, and in support of the duties assigned to him by the CEO, Executive is responsible for strategic direction, structure and
effective management of worldwide (excluding EMEA) sales organizations of VISUAL and for providing functional leadership and direction for worldwide (excluding EMEA) territory and channel sales teams, inside sales, and systems engineering. Executive
must also effectively manage and administer the day-to-day execution of these areas. 

  

	 	2.2.4	The Executive acknowledges that he may have to travel and work in different locations for business reasons from time to time as is reasonably necessary or advisable for the
performance of his duties hereunder. 

  

	2.3	Cooperation. During the term of this Agreement and any time thereafter, the Executive agrees to give prompt written notice to VISUAL of any claim or injury relating to
VISUAL, and to fully cooperate in good faith and to the best of his ability with VISUAL in connection with all pending, potential or future claims, investigations or actions which directly or indirectly relate to any transaction, event or activity
about which the Executive may have knowledge because of his employment with VISUAL. Such cooperation shall include all assistance that VISUAL, its counsel, or its representatives may reasonably request, including reviewing and interpreting
documents, meeting with counsel, providing factual information and material, and appearing or testifying as a witness. Should Executive be required to cooperate under the provisions of this Section 2.3 after termination of his employment with
VISUAL, then he shall be reimbursed by VISUAL for all reasonable costs and expenses related to his cooperation hereunder. 

  

	2.4	Duty of Loyalty. Executive acknowledges and agrees that he owes a fiduciary duty of loyalty to act at all times in the best interests of VISUAL. 

  

	2.5	Business Opportunities. All business opportunities presented to Executive: (i) by reason of Executive’s employment by VISUAL; or (ii) relating to the businesses and
activities engaged in (or contemplated to be engaged in) by VISUAL or any affiliate of VISUAL prior to and as of the date hereof or during the term hereof, shall be owned by, and belong exclusively to, VISUAL, and the Executive shall have no
personal interest or rights therein or thereto. Executive shall promptly disclose any such business opportunity to VISUAL and execute and deliver to VISUAL, without additional compensation, such instruments as VISUAL may require from time to time to
evidence its ownership of any such business opportunity. 

  
 ARTICLE 3 
  
 COMPENSATION AND BENEFITS

  

	3.1	Base Salary. During the Term, Executive shall be paid a base salary of two hundred twenty five thousand dollars ($225,000) annually (the “Base
Salary”), subject to applicable federal, state, and local withholding. The Base Salary shall be paid to Executive in semi-monthly installments in accordance with VISUAL’s standard policy regarding payment of compensation to
executives. VISUAL may, in its sole discretion, increase the amount of Base Salary effective for any specified year or part thereof during the term of this Agreement. 

  

	3.2	Options. Subject to Board approval, Executive shall be granted non-statutory stock options to purchase one hundred thousand (100,000) shares of common stock of VISUAL (the
“Initial Grant”), issued pursuant to the applicable Non-statutory Stock Option Grant Agreement (“Grant Agreement”) between VISUAL and Executive. Vesting of the Initial Grant shall be as described in
the applicable Grant Agreement. Stock options are subject to the terms and conditions established by the Board of Directors of Visual (the “Board”). 

  

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	3.3	Incentive Compensation. In calendar year 2005, the Executive shall be eligible to earn annualized incentive compensation of up to $175,000.00, if he reaches 100% of plan,
pursuant to the terms and conditions of the 2005 Compensation and Commission Plan for Executive Vice President of Sales (the “Plan”). The Plan shall be provided to Executive after the Start Date. 

  

	3.4	Employee Benefits. During the period that Executive is employed by VISUAL and for such longer period as required by applicable law, Executive shall be eligible to participate
in all employee benefit plans, policies, programs, or perquisites in which other VISUAL employees participate. Executive shall accrue Paid Time Off (“PTO”) at the rate of twenty (20) days per year. 


 
 Details of VISUAL’s insurance plans, including benefit amounts,
limitations and restrictions are described in the summary plan descriptions provided to the Executive. If there is any difference between the summary plan descriptions and the information set forth in this Agreement, then the information contained
in the summary plan descriptions takes precedence. 
  

	3.5	Reimbursement for expenses. VISUAL shall reimburse the Executive for all ordinary, necessary and reasonable out-of-pocket expenses incurred by the Executive for the benefit
of VISUAL upon presentation of appropriate documentation in accordance with VISUAL’s Policies in effect from time to time. 

  
 ARTICLE 4 
 TERMINATION OF
EMPLOYMENT 
  

	4.1	Term. Executive’s employment by VISUAL shall extend for a one (1) year term from March 7, 2005 through March 7, 2006 (the “Term”). Additionally,
either VISUAL or Executive may terminate this employment relationship during the Term for reasons provided in Sections 4.2 and 4.3 hereof, or upon expiration of the Term. 

  

	4.2	Executive’s Right to Terminate for Good Reason. During the Term, Executive may resign his employment for “Good Reason” by giving notice as described
below. For purposes of this Agreement, “Good Reason” is defined as follows: (i) willful failure by the Company to provide the Executive the Base Salary in accordance with the terms of this Agreement; or (ii) material
reduction in the Executive’s responsibilities, without the Executive’s consent, that would constitute a material diminution of responsibility. In each such event listed in (i) or (ii) above, the Executive shall give the Company immediate
notice thereof which shall specify in reasonable detail the circumstances constituting Good Reason, and there shall be no Good Reason with respect to any such circumstances if cured by the Company within sixty (60) days after such notice.


  

	4.3	VISUAL’s Right to Terminate. VISUAL has the right to terminate immediately the Executive’s employment under this Agreement at any time for any of the following
reasons: 

  

	 	4.3.1	Executive’s death; or 

  
 4.3.2 Executive’s “Disability”, which for purposes of this Agreement means the Executive’s incapacitation by
accident, sickness or other circumstances which, in the reasonable good faith determination of the Board, renders Executive mentally or physically incapable of performing the duties and services required of him hereunder in substantially the same
manner and to the extent required hereunder prior to the commencement of such Disability, either with or without reasonable accommodation, on a full-time basis for a period of at least 90 consecutive days or for a period of six (6) non-consecutive
months of the preceding eighteen (18) month period; or 
  
 4.3.3 For “Cause”, which for purposes of this Agreement shall mean: 
  
 4.3.3.1 The Executive has engaged in conduct which: (A) resulted in a conviction of or plea of guilty or no contest to a misdemeanor involving
moral turpitude or involving the property of VISUAL; or (B) resulted in a conviction of or plea of guilty or no contest to a felony under the laws of the United States or any state or political subdivision thereof; or 
  
 4.3.3.2 The Executive: (A) commits a breach of his fiduciary duty to VISUAL
or any of its affiliates; or (B) commits an act of gross negligence; or (C) engages in willful misconduct; or (D) engages in any 
  

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 transaction which the Executive knows or should have known would constitute self-dealing or a conflict of
interest between the Executive and VISUAL and in which the Executive does or would receive any direct or indirect economic or pecuniary benefit without prior disclosure of such transaction to VISUAL; or 
  
 4.3.3.3. The Executive violates the internal procedures or policies of
VISUAL in a manner which has an adverse effect on the reputation, business or prospects of VISUAL, such as but not limited to, conduct constituting employment discrimination or sexual harassment; or 
  
 4.3.3.4 Default or other breach by Executive of his obligations hereunder;
or 
  
 4.3.3.5 Failure by Executive to perform diligently and
competently his duties hereunder after written notice from VISUAL of such failure and thirty (30) days to remedy the deficiency described in such notice. 
  

	4.4	Effect of Termination on Compensation. 

  
 4.4.1 Termination by VISUAL Without Cause or Termination by Executive for Good Reason. If Executive’s employment hereunder shall be terminated
during the Term of this Agreement: (a) by the Employer without Cause (as defined in section 4.33 above); or (b), by Executive for Good Reason (as defined in section 4.2 above), VISUAL agrees to provide Executive with severance pay, payable according
to normal payroll practice, amounting to six (6) months of the Executive’s then-applicable Base Salary, less applicable withholdings (the “Severance Pay”). In exchange for this Severance Pay, Executive agrees to execute
a full release of all claims arising from the termination of Employee’s employment with Visual. No severance or other payment is due until a full release has been signed by Executive to Visual’s satisfaction. In the event that Executive
breaches any of the provisions of this Agreement (including but not limited to Executive’s obligation to cooperate during any relevant notice period and/or the Confidentiality Agreement), all compensation and benefits hereunder shall cease
immediately, Executive’s termination shall be treated as if it had been a termination for Cause, and Executive shall be required to repay VISUAL any Severance Pay received hereunder. 
  
 4.4.2 Termination by Employer for Cause, Death or Disability. If
Executive’s employment is terminated by VISUAL for death, Disability or Cause (as those terms are defined in sections 4.3.2 and 4.3.3 herein), all compensation and benefits payable hereunder shall terminate contemporaneously with the date of
the Executive’s termination of employment. 
  
 ARTICLE 5

  
 GENERAL PROVISIONS 
  
 5.1 Notices. All notices and other communications required or permitted by this
Agreement to be delivered by VISUAL or Executive to the other party shall be delivered in writing to the address shown below, either personally, by facsimile transmission or by registered, certified or express mail, return receipt requested, postage
prepaid, to the address for such party specified below or to such other address as the party may from time to time advise the other party, and shall be deemed given and received as of actual personal delivery, on the first business day after the
date of delivery shown on any such facsimile transmission (with confirmed receipt) or upon the date or actual receipt shown on any return receipt if registered, certified or express mail is used, as the case may be. 
  

	 	Employer:        Visual	Networks Operations, Inc. 

  
 Attention: Jill Mayer 
 Director of Human
Resources 
 2092 Gaither Road 
 Rockville, Maryland 20850 
  

	 	  Executive:        	Mark B. Skurla 

  
 At Executive’s address as reflected on VISUAL’s records 
  

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 5.2 Amendments and Termination; Entire Agreement. This Agreement may not be amended or terminated except by a
writing executed by all of the parties hereto. This Agreement constitutes the entire agreement of VISUAL and Executive relating to the subject matter hereof, and supersedes all prior oral and written understandings and agreements, whether written or
oral. Notwithstanding anything herein to the contrary, this Agreement shall not affect the applicability of the Non-Solicitation Agreement executed by Executive, and the Non-Solicitation Agreement shall remain in full force and effect
notwithstanding this Agreement. 
  
 5.3 Severability; Provisions Subject to
Applicable Law. All provisions of this Agreement shall be applicable only to the extent that they do not violate any applicable law, and are intended to be limited to the extent necessary so that they will not render this Agreement invalid,
illegal or unenforceable under any applicable law. If any provision of this Agreement or any application thereof shall be held to be invalid, illegal or unenforceable, the parties agree and stipulate that any court of competent jurisdiction may
enforce these restrictions to the maximum extent deemed reasonable, rather than declare any provision unenforceable. 
  
 5.4 Waiver of Rights. No waiver by VISUAL or Executive of a right or remedy hereunder shall be deemed to be a waiver of any other right or remedy or of any
subsequent right or remedy of the same kind. 
  
 5.5 Definitions, Headings and
Number. A term defined in any part of this Employment Agreement shall have the defined meaning wherever such term is used herein. The headings contained in this Agreement are for reference purposes only and shall not affect in any manner the
meaning or interpretation of this Employment Agreement. Where appropriate to the context of this Agreement, use of the singular shall be deemed also to refer to the plural, and use of the plural to the singular. 
  
 5.6 Counterparts. This Agreement may be executed in separate counterparts, each of
which shall be deemed an original but all of which taken together shall constitute but one and the same instrument. 
  
 5.7 Governing Law. This Agreement shall be interpreted, construed, and enforced pursuant to the laws of the state of Maryland, irrespective of its choice of laws
provisions and irrespective of the fact that any one of the parties may be a resident of a different state. The parties hereto agree that, in connection with any action, suit or other proceeding in connection with, arising out of or relating to this
Agreement disputes shall be resolved by the District Court of Maryland for Montgomery County, the Circuit Court for Montgomery County, Maryland, or the United States District Court for the District of Maryland, as may be appropriate. Employee agrees
that service of process upon Employee may be effected by certified mail or by any other means permitted by law, and Employee waives any objection which Employee may have to the laying of venue of any such suit, action or proceeding in any such court
and any claim or defense of inconvenient forum. 
  
 IN WITNESS WHEREOF, VISUAL and
Executive have signed this Agreement. 
  
 VISUAL NETWORKS OPERATIONS, INC.

  

			
	By:	 	 /s/ Lawrence S. Barker


	 	 	Lawrence S. Barker
	 	 	 President and Chief Executive Officer
  

	 Date:
	 	 February 15, 2005


		
	 	 	 /s/ Mark B. Skurla


	 	 	 Mark B. Skurla

		
	 Date:
	 	 February 15, 2005



  

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