EXHIBIT 10.2
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is made as of
June 17, 2002, between Focal Communications Corporation, a Delaware corporation
(the "Company"), and Xxxxx Xxxxxx ("Executive").
In consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and Executive agree as follows:
1. EMPLOYMENT. The Company will employ Executive, and Executive
hereby accepts employment with the Company, on the terms and subject to the
conditions set forth in this Agreement, for the period beginning on June 17,
2002 (the "START DATE") and ending as provided in Section 5 hereof (the
"EMPLOYMENT PERIOD").
2. POSITION AND DUTIES.
(a) During the Employment Period, Executive will serve as the
President and Chief Executive Officer of the Company, and Executive will render
such administrative, financial and other executive and managerial services to
the Company and its Subsidiaries which are consistent with Executive's position
as the Company's Board of Directors (the "BOARD") may from time to time direct.
(b) During the Employment Period, Executive will report to the Board
and will devote her best efforts and her full business time and attention
(except for permitted vacation periods and reasonable periods of illness or
other incapacity) to the business and affairs of the Company; PROVIDED that
Executive shall be permitted to serve on the advisory boards or boards of
directors of other businesses or charitable entities, so long as such service
does not interfere with her performance of her duties to the Company under this
Agreement, and so long as she periodically informs the Board of such
commitments. Executive will perform her duties, responsibilities and functions
to the best of her abilities in a diligent, trustworthy, professional and
efficient manner and will comply with the Company's and its Subsidiaries'
policies and procedures in all material respects.
(c) For purposes of this Agreement, "SUBSIDIARIES" will mean any
corporation or other entity of which the securities or other ownership interests
having the voting power to elect a majority of the board of directors or other
governing body are, at the time of determination, owned by the Company, directly
or through one of more Subsidiaries.
3. COMPENSATION AND BENEFITS.
(a) During the Employment Period, Executive's base salary will be
$325,000 per annum (increasing on each anniversary of the Start Date to 105% of
the prior year's base salary), or such higher rate as the Board may determine
from time to time (as adjusted from time to time, the "BASE SALARY"), which
salary shall be payable by the Company in regular installments in accordance
with the Company's general payroll practices (in effect from time to time).
(b) At the end of each calendar year during the Employment Period,
the Board may, in its sole discretion, award a bonus to Executive of up to 100%
of Executive's Base Salary in effect on December 31st of such year (or, in the
case of calendar year 2002, of up to $189,583), the amount of which bonus will
be determined by the Board in its sole discretion based on Executive's
achievement of performance objectives agreed to by Executive and the Board at
the beginning of each such year (or, in the case of calendar year 2002,
performance objectives agreed to by Executive and the Board prior to the Start
Date) and such other factors as the Board deems appropriate.
(c) On the Start Date, Executive will be entitled to receive a grant
of options ("OPTIONS") to acquire 600,000 shares of the Company's common stock
(as such number of shares is proportionally adjusted for any stock split, stock
dividend, reverse stock split, combination of shares, or other recapitalization
affecting the Company's common stock occurring after the date hereof and prior
to the issuance of such options). In connection with such grant of options, the
Company and Executive will enter into a Non-Qualified Stock Option Agreement in
form and substance substantially as set forth in EXHIBIT B attached hereto.
(d) On each anniversary of the Start Date occurring during the
Employment Period, the Board may, in its sole discretion, award Executive a
grant of up to 100,000 Options (as such number is proportionally adjusted for
any stock split, stock dividend, reverse stock split, combination of shares, or
other recapitalization affecting the Company's common stock occurring after the
date hereof and prior to the issuance of such Options), the number of which
Options will be determined by the Board in its sole discretion based on
Executive's achievement of performance objectives agreed to by Executive and the
Board at the beginning of each calendar year and such other factors as the Board
deems appropriate. In connection with any such grant, the Company and Executive
will enter into a Non-Qualified Stock Option Agreement in form and substance
substantially as set forth in EXHIBIT C attached hereto, with such changes
thereto as are mutually agreed to the Board and Executive.
(e) During the Employment Period, Executive will be entitled to
participate in all of the Company's employee benefit programs for which senior
executive employees of the Company and its Subsidiaries are generally eligible;
PROVIDED that Executive will be entitled to five (5) weeks of paid vacation each
calendar year in accordance with the Company's policies, which if not taken
during any year may not be carried forward to any subsequent calendar year and
no compensation shall be payable in lieu thereof (except as expressly provided
in Section 5).
(f) During the Employment Period, the Company will reimburse
Executive for each of the following (without duplication):
(i) all reasonable out-of-pocket travel and other business
expenses incurred by her as required in the course of performing her duties
and responsibilities under this Agreement, which expenses will be
reimbursed in a manner consistent with the Company's policies in effect
from time to time with respect to travel, entertainment and other business
expenses, and subject to the Company's requirements with respect to
reporting and documentation of such expenses;
-2-
(ii) all reasonable out-of-pocket expenses incurred by her in
commuting between her permanent homes in New Jersey and Florida, on the one
hand, and the Company's offices in Chicago or such other locations to which
Executive is required to travel, on the other hand, up to four roundtrips
per calendar month (unless otherwise approved by the Board), but not
including any personal travel such as travel between her permanent homes),
which expenses will be reimbursed in a manner consistent with the Company's
policies in effect from time to time with respect to travel, entertainment
and other business expenses, and subject to the Company's requirements with
respect to reporting and documentation of such expenses;
(iii) for so long as Executive serves as a director on the
Board, all reasonable out-of-pocket business expenses incurred by her in
connection with attending meetings of the Board, subject to the Company's
requirements with respect to reporting and documentation of such expenses;
(iv) to the extent such services are not provided by the
Company, all reasonable fees and disbursements for one legal counsel to
Executive incurred in complying with periodic reporting or filing
requirements under applicable securities laws arising out of (A)
Executive's position with the Company, (B) compensation by the Company, or
(C) ownership of the Company's securities; and
(v) all reasonable fees and disbursements for one legal
counsel to Executive incurred on or prior to the date hereof in negotiating
and documenting her employment arrangement with the Company.
Executive agrees that she will work in good faith with the Company to manage her
reimbursable expenses in a cost- and tax-efficient manner.
(g) During the Employment Period, the Company will provide Executive
with the use and occupancy of an apartment in Chicago leased by the Company.
(h) To the extent any portion of the benefit provided under
paragraphs 3(f)(ii), 3(f)(v), or 3(g) is properly included as taxable income
under the Internal Revenue Code of 1986, as amended (the "CODE"), the Company
shall, in addition to providing such benefits, pay to Executive prior to April
10 of the year following the year such benefits are provided an amount equal to
the result from dividing (i) the Tax Cost (as defined below) of such benefits BY
(ii) one MINUS the highest combined federal and state tax rates actually
applicable to Executive for the taxable year in which such reimbursement is
received (taking into account the federal deduction for state taxes paid and the
character of income recognized by Executive). For purposes of this Agreement,
the "Tax Cost" of any benefits provided under paragraphs 3(f)(ii), 3(f)(v), or
3(g) will mean the product obtained by multiplying (x) the amount of gross
income includable as a result of such benefits TIMES (y) the highest combined
federal and state tax rates actually applicable to Executive for the taxable
year in which such benefits are provided (taking into account the federal
deduction for state taxes paid and the character of income recognized by
Executive by reason of such benefits).
-3-
(i) During the Employment Period, the Company will maintain directors
and officers indemnity insurance in amount and coverage reasonably satisfactory
to Executive (it being understood that the Company's existing insurance is
satisfactory to Executive); and the Company's certificate of incorporation and
bylaws will provide for indemnification and exculpation of directors and
officers to the fullest extent permitted under applicable law.
(j) The Company may withhold from any amounts payable under this
Agreement all federal, state, or other taxes and withholding amounts as the
Company is required to withhold under applicable law.
(k) The Company shall, if requested by Executive, allow and assist
Executive in establishing a 10(b)-5-1 plan for purposes of sales of securities
of the Company by Executive, and, to the extent such services are not provided
by the Company, all reasonable fees and disbursements for one legal counsel to
Executive incurred in connection with establishing such plan will be treated as
incurred pursuant to Section 3(f)(iv).
4. BOARD MEMBERSHIP. With respect to all regular elections of
directors during the Employment Period, the Company shall nominate, and use its
reasonable efforts to cause the election of, Executive to serve as a member of
the Board. For so long as Executive serves on the Board, Executive shall be
appointed by the Board to serve on all committees (other than the compensation
committee) with authority over the Company's budget or any component thereof,
including any capital spending committees, and shall be entitled to attend all
meetings (other than customary meetings in executive session that are not
meetings of the Board within the meaning of Section 141 of the Delaware General
Corporation Law) of any committee of the Board (other than the compensation
committee). Upon the termination or expiration of the Employment Period,
Executive shall resign as a director of the Company and its Subsidiaries, as the
case may be, and from each committee of the Board.
5. TERM.
(a) The Employment Period shall continue from the Start Date until
the earliest to occur of Executive's resignation, death, Disability (as defined
below), or termination by the Company. The Company may terminate Executive's
employment at any time with or without Cause (as defined below), and Executive
may terminate her employment at any time with or without Good Reason (as defined
below) upon giving written notice of her resignation to the Company at least 60
days prior to the date of such termination.
(b) If Executive's employment is terminated due to Executive's death,
the Company will pay to Executive's estate Executive's Base Salary (together
with all unused vacation benefits for the year of termination accrued) through
the date of termination.
(c) If Executive's employment is terminated due to Executive's
Disability, Executive will be entitled to receive her Base Salary (together with
all unused vacation benefits for the year of termination accrued) through the
date of termination, and Executive will be entitled to such benefits as are
available under the Company's long-term disability insurance plans as in effect
on the date of termination. Executive will be "DISABLED" only if, as a result of
-4-
her incapacity due to physical or mental illness, she is considered disabled
under the Company's long-term disability insurance plans referred to in the
preceding sentence.
(d) If Executive's employment is terminated due to Executive's
resignation (other than for Good Reason) or a termination by the Company for
Cause, Executive will be entitled to receive her Base Salary (together with all
unused vacation benefits for the year of termination accrued) through the date
of such termination.
(e) If Executive's employment is terminated due to Executive's
resignation for Good Reason or a termination by the Company (other than for
Cause), then Executive will be entitled to receive:
(i) her Base Salary (together with all unused vacation
benefits for the year of termination accrued) through the date of
termination;
(ii) a lump-sum cash payment within 30 days after the date of
such termination equal to the sum of (x) 100% of her annual Base Salary in
effect on the date of termination PLUS (y) 100% of any bonus actually paid
to Executive pursuant to Section 3(b) in respect of the calendar year-end
most recently preceding the date of termination; PROVIDED that in the case
of any termination during calendar 2002 the payment under this clause (ii)
would be $0, and in the case of any termination during calendar year 2003
the payment under this clause (ii) would be an amount equal to $341,250
multiplied by a fraction, the numerator of which is the amount of any bonus
actually paid to Executive pursuant to Section 3(b) in respect of the end
of calendar year 2002, and the denominator of which is $189,583; and
(iii) a continuation through the one-year anniversary of the
date of termination of her participation in the Company's health and other
insurance benefit programs for which senior executive employee's are
generally eligible (unless at any time during such one-year period
Executive obtains other employment with substantially comparable health and
other insurance benefits)
PROVIDED that, with respect to clauses (ii) and (iii), Executive will be
entitled to receive such amounts if and only if Executive has executed and
delivered to the Company the General Release substantially in form and substance
as set forth in EXHIBIT A attached hereto and only so long as Executive has not
breached the provisions of paragraphs 6, 7 and 8 hereof.
(f) Except as otherwise expressly provided herein, all of Executive's
rights to salary, bonuses, employee benefits and other compensation hereunder
which would have accrued or become payable after the termination or expiration
of the Employment Period shall cease upon such termination or expiration, other
than those expressly required under applicable law (such as COBRA).
(g) For purposes of this Agreement, "CAUSE" shall mean Executive's
(i) commission of a felony, (ii) commission of any other act or omission
involving dishonesty, disloyalty or fraud with respect to the Company or any of
its Subsidiaries or any of their
-5-
customers or suppliers, (iii) reporting to work under the influence of alcohol
or illegal drugs, the use of illegal drugs (whether or not at the workplace) or
other repeated conduct causing the Company or any of its Subsidiaries
substantial public disgrace or disrepute or economic harm, (iv) continued and
repeated refusal or failure (other than by reason of Disability) to perform her
duties as reasonably directed by the Board, (v) gross negligence or willful
misconduct that is materially detrimental to the Company or any of its
Subsidiaries, or (vi) any other material breach of this Agreement; PROVIDED that
in the case of (iii) through (iv) or (vi) above, Executive shall have received
written notice from the Board of the acts purportedly constituting "Cause" and
shall have failed to cure such acts within 30 days following receipt of such
notice; AND PROVIDED FURTHER that a termination for "Cause" shall occur only
upon the vote of a majority of the members of the Board (other than Executive)
at a meeting of which Executive has been notified and offered the opportunity to
appear before the Board and address the acts purportedly giving rise to such
"Cause."
(h) For purposes of this Agreement, a termination by Executive for
"GOOD REASON" will mean Executive's voluntary resignation after any of the
following: (i) a demotion of Executive from the position of Chief Executive
Officer without her consent, (ii) a substantial reduction in Executive's
authority and responsibilities as Chief Executive Officer without her consent,
(iii) a reduction in Executive's Base Salary required under Section 3(a), or in
the maximum bonus for which Executive may be eligible under Section 3(b),
without her consent, (iv) a relocation of Executive's principal place of
business more than 35 miles from the greater Chicago metropolitan area without
her consent, or (v) any material breach of this Agreement, including any Option
Agreement executed pursuant to this Agreement by the Company; PROVIDED that no
such occurrence shall constitute the basis for a termination with "Good Reason"
unless Executive notifies the Company in writing within 90 days of such
occurrence that Executive considers such occurrence to be the basis for a
termination with "Good Reason" and the Company fails to cure such occurrence
within 30 days following receipt of such notice.
6. CONFIDENTIAL INFORMATION.
(a) Executive acknowledges that the information, observations and
data (including trade secrets) obtained by her while employed by the Company and
its Subsidiaries concerning the business or affairs of the Company or any
Subsidiary ("CONFIDENTIAL INFORMATION") are the property of the Company or such
Subsidiary. Therefore, Executive agrees that she shall not disclose to any
unauthorized person or use for her own purposes any Confidential Information
without the prior written consent of the Board, unless and to the extent that
the Confidential Information becomes generally known to and available for use by
the public other than as a result of Executive's acts or omissions. Executive
shall deliver to the Company at the termination or expiration of the Employment
Period, or at any other time the Company may request, all memoranda, notes,
plans, records, reports, computer tapes, printouts and software and other
documents and data (and copies thereof) embodying or relating to the
Confidential Information, Work Product (as defined below) or the business of the
Company or its Subsidiaries which she may then possess or have under her
control; PROVIDED that the Company shall provide Executive with reasonable
access during normal business hours to all such materials to the extent
reasonably required with respect to any dispute or matter with respect to which
Executive may
-6-
have personal liability, and all such materials made available to Executive
shall continue to be subject to the confidentiality provisions set forth in this
Section 6.
(b) Executive shall be prohibited from using or disclosing any
confidential information or trade secrets that Executive may have learned
through any prior employment. If at any time during this employment with the
Company or any Subsidiary, Executive believes she is being asked to engage in
work that will, or will be likely to, jeopardize any confidentiality or other
obligations Executive may have to former employers, Executive shall immediately
advise the Board so that Executive's duties can be modified appropriately.
(c) Executive represents and warrants to the Company that Executive
took nothing with her which belonged to any former employer when Executive left
her prior position and that Executive has nothing that contains any information
which belongs to any former employer. If at any time Executive discovers this is
incorrect, Executive shall promptly return any such materials to Executive's
former employer. The Company does not want any such materials, and Executive
shall not be permitted to use or refer to any such materials in the performance
of Executive's duties hereunder.
7. INTELLECTUAL PROPERTY, INVENTIONS AND PATENTS. Executive
acknowledges that all discoveries, concepts, ideas, inventions, innovations,
improvements, developments, methods, designs, analyses, drawings, reports,
patent applications, copyrightable work and mask work (whether or not including
any confidential information) and all registrations or applications related
thereto, all other proprietary information and all similar or related
information (whether or not patentable) which relate to the Company's or any of
its Subsidiaries' actual or anticipated business, research and development or
existing or future products or services and which are conceived, developed or
made by Executive (whether above or jointly with others) while employed by the
Company and its Subsidiaries, whether before or after the date of this Agreement
("WORK PRODUCT"), belong to the Company or such Subsidiary. Executive shall
promptly disclose such Work Product to the Board and, at the Company's expense,
perform all actions reasonably requested by the Board (whether during or after
the Employment Period) to establish and confirm such ownership (including,
without limitation, assignments, consents, powers of attorney and other
instruments).
In accordance with Section 2872 of the Illinois Employee Patent Act,
Ill. Rev. Stat. Chap. 140, Section 301 ET SEQ. (1983), Executive is hereby
advised that this paragraph 7 regarding the Company's and its Subsidiaries'
ownership of Work Product does not apply to any invention for which no
equipment, supplies, facilities or trade secret information of the Company or
any Subsidiary was used and which was developed entirely on Executive's own
time, unless (i) the invention relates to the business of the Company or any
Subsidiary or to the Company's or any Subsidiaries' actual or demonstrably
anticipated research or development or (ii) the invention results from any work
performed by Executive for the Company or any Subsidiary.
8. NON-COMPETE, NON-SOLICITATION.
(a) Executive acknowledges and agrees with the Company that in the
course of her employment with the Company she will become familiar with the
Company's trade secrets
-7-
and with other confidential and proprietary information concerning the Company
and its Subsidiaries, that Executive's services to the Company and its
Subsidiaries are special and unique in nature and of an extraordinary value to
the Company, and that the Company would be irreparably damaged if Executive were
to provide similar services to any Person competing with the Company or any of
its Subsidiaries or engaged in similar business.
(b) Therefore, in order to induce the Company to hire Executive and
enter into this Agreement, and in further consideration of Executive's
compensation under employment arrangements with the Company, Executive covenants
and agrees that during the Employment Period and (so long as the Company pays to
Executive all amounts and provides such benefits as are owed to her under the
terms of this Agreement) for one (1) year thereafter (the "NONCOMPETE PERIOD"),
she shall not directly or indirectly, either for herself or for any other
Person, participate in any business or enterprise that engages or proposes to
engage in the provision or sale of local exchange telecommunications services
within the United States.
(c) For purposes hereof, "PERSON" means any individual, partnership,
corporation, limited liability company, association, joint stock company, trust,
joint venture, unincorporated organization, or governmental entity, department,
agency, or political subdivision.
(d) For purposes hereof, "participate in" will including, without
limitation, having any direct or indirect interest in any Person, whether as a
sole proprietor, owner, stockholder, partner, member, joint venturer, creditor,
or otherwise, or rendering any direct or indirect service or assistance to any
Person (whether as a director, officer, manager, supervisor, employee, agent,
consultant, or otherwise), other than passive ownership of not more than 2% of
the outstanding stock of any class of a corporation which is publicly traded, so
long as Executive has no active participation in the business of such
corporation.
(e) During the Noncompete Period, Executive shall not directly or
indirectly through another Person (i) induce or attempt to induce any employee
of the Company or any Subsidiary to leave the employ of the Company or such
Subsidiary, or in any way interfere with the relationship between the Company or
any Subsidiary and any employee thereof, (ii) hire any person who was an
employee of the Company or any Subsidiary at any time during the period from six
months' prior to the termination of the Employment Period until six months'
after the termination of the Employment Period, or (iii) induce or attempt to
induce any customer, supplier, licensee, licensor, franchisee or other business
relation of the Company or any Subsidiary to cease doing business with the
Company or such Subsidiary, or in any way interfere with the relationship
between any such customer, supplier, licensee or business relation and the
Company or any Subsidiary (including, without limitation, making any negative or
disparaging statements or communications regarding the Company or its
Subsidiaries).
9. ENFORCEMENT. If, at the time of enforcement of Section 6, 7 or 8
of this Agreement, a court holds that the restrictions stated herein are
unreasonable under circumstances then existing, the parties hereto agree that
the maximum period, scope or geographical area reasonable under such
circumstances shall be substituted for the stated period, scope or area. Because
Executive's services are unique and because Executive has access to Confidential
-8-
Information and Work Product, the parties hereto agree that money damages would
not be an adequate remedy for any breach of this Agreement. Therefore, in the
event a breach or threatened breach of this Agreement, the Company or its
successors or assigns, in addition to other rights and remedies existing in
their favor, shall be entitled to specific performance and/or injunctive or
other equitable relief from a court of competent jurisdiction in order to
enforce, or prevent any violations of, the provisions hereof (without posting a
bond or other security). In addition, in the event of an alleged breach or
violation by Executive of Section 8, the Noncompete Period shall be tolled until
such breach or violation has been duly cured. Executive acknowledges that the
restrictions contained in Section 8 are reasonable and that she has reviewed the
provisions of this Agreement with her legal counsel.
10. EXECUTIVE'S REPRESENTATIONS. Executive hereby represents and
warrants to the Company that (i) the execution, delivery and performance of this
Agreement by Executive do not and shall not conflict with, breach, violate or
cause a default under any contract, agreement, instrument, order, judgment or
decree to which Executive is a party or by which she is bound, (ii) Executive is
not a party to or bound by any employment agreement, noncompete agreement or
confidentiality agreement with any other person or entity, and (iii) upon the
execution and delivery of this Agreement by the Company, this Agreement shall be
the valid and binding obligation of Executive, enforceable in accordance with
its terms. Executive hereby acknowledges and represents that she has consulted
with independent legal counsel regarding her rights and obligations under this
Agreement and that she fully understands the terms and conditions contained
herein. As a inducement to the Company to enter into this Agreement, Executive
acknowledges and agrees that no provision contained herein shall entitle her to
remain in the employment of the Company or any of its Subsidiaries or affect the
right of the Company to terminate her employment at any time and for any reason.
11. MISCELLANEOUS.
(a) SURVIVAL. Sections 6 through 11 shall survive and continue in
full force in accordance with their terms notwithstanding the expiration or
termination of the Employment Period.
(b) NOTICES. Any notice provided for in this Agreement shall be in
writing and shall be either personally delivered, sent by reputable overnight
courier service or mailed by first class mail, return receipt requested, to the
recipient at the address below indicated:
Notices to Executive:
Xxxxxxxx X. Xxxxxx
00000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Notices to the Company:
-9-
Focal Communications Corporation
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: General Counsel
Telephone: 000-000-0000
Fax: 000-000-0000
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement shall be deemed to have been given when so
delivered, sent or mailed.
(c) SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision of this Agreement or any action in any other jurisdiction,
but this Agreement shall be reformed, construed and enforced in such
jurisdiction as if such invalid, illegal or unenforceable provision had never
been contained herein.
(d) COMPLETE AGREEMENT. This Agreement and those documents expressly
referred to herein embody the complete agreement and understanding among the
parties and supersede and preempt any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related
to the subject matter hereof in any way.
(e) NO STRICT CONSTRUCTION. The language used in this Agreement shall
be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
party.
(f) COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
(g) SUCCESSORS AND ASSIGNS. This Agreement is intended to bind and
inure to the benefit of and be enforceable by Executive, the Company and their
respective heirs, successors and assigns, except that Executive may not assign
her rights or delegate her duties or obligations hereunder without the prior
written consent of the Company.
(h) CHOICE OF LAW. All issues and questions concerning the
construction, validity, enforcement and interpretation of this Agreement and the
exhibits and schedules hereto shall be governed by, and construed in accordance
with, the laws of the State of Illinois, without giving effect to any choice of
law or conflict of law rules or provisions (whether of the State of Illinois or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Illinois.
-10-
(i) AMENDMENT AND WAIVER. The provisions of this Agreement may be
amended or waived only with the prior written consent of the Company (as
approved by the Board) and Executive, and no course of conduct or course of
dealing or failure or delay by any party hereto in enforcing or exercising any
of the provisions of this Agreement (including, without limitation, the
Company's right to terminate the Employment Period for Cause) shall affect the
validity, binding effect or enforceability of this Agreement or be deemed to be
an implied waiver of any provision of this Agreement.
(j) INSURANCE. The Company may, at its discretion, apply for and
procure in its own name and for its own benefit life and/or disability insurance
on Executive in any amount or amounts considered available. Executive agrees to
cooperate in any medical or other examination, supply any information and
execute and deliver any applications or other instruments in writing as may be
reasonably necessary to obtain and constitute such insurance. Executive hereby
represents that she has no reason to believe that her life is not insurable at
rates now prevailing for healthy men of her age.
(k) EXECUTIVE'S COOPERATION. During the Employment and thereafter,
Executive shall cooperate with the Company and its Subsidiaries in any internal
investigation or administrative, regulatory or judicial proceeding as reasonably
requested by the Company (including, without limitation, Executive being
available to the Company upon reasonable notice for interviews and factual
investigations, appearing at the Company's request to give testimony without
requiring service of a subpoena or other legal process, volunteering to the
Company all pertinent information and turning over to the Company all relevant
documents which are or may come into Executive's possession, all at times and on
schedules that are reasonably consistent with Executive's other permitted
activities and commitments). In the event the Company requires Executive's
cooperation in accordance with this paragraph, the Company shall reimburse
Executive for her reasonable out-of-pocket expenses incurred in connection
therewith (including travel, lodging, meals, and reasonable legal expenses,
subject to the Company's requirements with respect to reporting and
documentation of such expenses)
(l) MANDATORY ARBITRATION. Except as otherwise expressly provided
herein with respect to the availability of equitable remedies, all claims,
disputes, controversies or other matters in question arising under or relating
to this Agreement (collectively, "Disputes") will, if unable to be resolved
within 10 days of preliminary negotiation between Executive and the Company, be
resolved through binding arbitration in accordance with the commercial
arbitration rules and practices of the American Arbitration Association. Such
arbitration will be in New York, New York, or such other place as is mutually
agreeable to Executive and the Company. The cost of each arbitration proceeding,
including without limitation the arbitrator's compensation and expenses, hearing
room charges, court reporter transcript charges, reasonable attorney fees and
expenses, etc., will be allocated among the parties by the arbitrator based upon
the relative merits of the positions of the parties to such Dispute in such
arbitration. The parties hereto agree that, subject to the provisions herein
with respect to the availability of equitable remedies, mandatory arbitration
under this Section 11(l) will be the sole and exclusive remedy for resolving and
remedying all Disputes hereunder.
-11-
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-12-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
FOCAL COMMUNICATIONS CORPORATION
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
EXECUTIVE
--------------------------------------------
Xxxxx Xxxxxx
EXHIBIT A
GENERAL RELEASE
I, Xxxxx Xxxxxx, in consideration of and subject to the performance by
Focal Communications Corporation, a Delaware corporation (together with its
subsidiaries, the "Company"), of its material obligations under the Employment
Agreement, dated as of June 17, 2002 (the "AGREEMENT"), do hereby release and
forever discharge as of the date hereof the Company and all present and former
directors, officers, agents, representatives, employees, successors and assigns
of the Company and its direct or indirect owners (collectively, the "RELEASED
PARTIES") to the extent provided below.
1. I understand that any payments or benefits paid or granted to me under
paragraph 5(b) of the Agreement represent, in part, consideration for
signing this General Release and are not salary, wages or benefits to which
I was already entitled. I understand and agree that I will not receive the
payments and benefits specified in paragraph 5(b) of the Agreement unless I
execute this General Release and do not revoke this General Release within
the time period permitted hereafter or breach this General Release.
2. Except as provided in paragraph 4 below, I knowingly and voluntarily
release and forever discharge the Company and the other Released Parties
from any and all claims, controversies, actions, causes of action,
cross-claims, counter-claims, demands, debts, compensatory damages,
liquidated damages, punitive or exemplary damages, other damages, claims
for costs and attorneys' fees, or liabilities of any nature whatsoever in
law and in equity, both past and present (through the date of this General
Release) and whether known or unknown, suspected, or claimed against the
Company or any of the Released Parties which I, my spouse, or any of my
heirs, executors, administrators or assigns, may have, which arise out of
or are connected with my employment with, or my separation from, the
Company (including, but not limited to, any allegation, claim or violation,
arising under: Title VII of the Civil Rights Act of 1964, as amended; the
Civil Rights Act of 1991; the Age Discrimination in Employment Act of 1967,
as amended (including the Older Workers Benefit Protection Act); the Equal
Pay Act of 1963, as amended; the Americans with Disabilities Act of 1990;
the Family and Medical Leave Act of 1993; the Civil Rights Act of 1866, as
amended; the Worker Adjustment Retraining and Notification Act; the
Employee Retirement Income Security Act of 1974; any applicable Executive
Order Programs; the Fair Labor Standards Act; or their state or local
counterparts; or under any other federal, state or local civil or human
rights law, or under any other local, state, or federal law, regulation or
ordinance; or under any public policy, contract or tort, or under common
law; or arising under any policies, practices or procedures of the Company;
or any claim for wrongful discharge, breach of contract, infliction of
emotional distress, defamation; or any claim for costs, fees, or other
expenses, including attorneys' fees incurred in these matters) (all of the
foregoing collectively referred to herein as the "CLAIMS").
3. I represent that I have made no assignment or transfer of any right, claim,
demand, cause of action, or other matter covered by paragraph 2 above.
ExA-1
4. I agree that this General Release does not waive or release any rights or
claims that I may have under the Age Discrimination in Employment Act of
1967 which arise after the date I execute this General Release. I
acknowledge and agree that my separation from employment with the Company
in compliance with the terms of the Agreement shall not serve as the basis
for any claim or action (including, without limitation, any claim under the
Age Discrimination in Employment Act of 1967).
5. In signing this General Release, I acknowledge and intend that it shall be
effective as a bar to each and every one of the Claims hereinabove
mentioned or implied. I expressly consent that this General Release shall
be given full force and effect according to each and all of its express
terms and provisions, including those relating to unknown and unsuspected
Claims (notwithstanding any state statute that expressly limits the
effectiveness of a general release of unknown, unsuspected and
unanticipated Claims), if any, as well as those relating to any other
Claims hereinabove mentioned or implied. I acknowledge and agree that this
waiver is an essential and material term of this General Release and that
without such waiver the Company would not have agreed to the terms of the
Agreement. I further agree that in the event I should bring a Claim seeking
damages against the Company, or in the event I should seek to recover
against the Company in any Claim brought by a governmental agency on my
behalf, this General Release shall serve as a complete defense to such
Claims. I further agree that (a) I am not aware of any pending charge or
complaint of the type described in paragraph 2 as of the execution of this
General Release, and (b) if any such pending charge or complaint of which I
am not presently aware is or becomes in existence, I will upon becoming
aware of such charge or complaint use all reasonably diligent efforts to
cause such charge or complaint to be dismissed or terminated.
6. I agree that neither this General Release, nor the furnishing of the
consideration for this General Release, shall be deemed or construed at any
time to be an admission by the Company, any Released Party or myself of any
improper or unlawful conduct.
7. I agree that if I violate this General Release by bringing any Claim
against the Company or any other Released Parties, I will pay all costs and
expenses of defending against the suit incurred by the Released Parties,
including reasonable attorneys' fees and expenses.
8. I agree that this General Release is confidential and agree not to disclose
any information regarding the terms of this General Release, except to my
immediate family and any tax, legal or other counsel I have consulted
regarding the meaning or effect hereof or as required by law, and I will
instruct each of the foregoing not to disclose the same to anyone.
9. Any non-disclosure provision in this General Release does not prohibit or
restrict me (or my attorney) from responding to any inquiry about this
General Release or its underlying facts and circumstances by the Securities
and Exchange Commission (SEC), the National Association of Securities
Dealers, Inc. (NASD), any other self-regulatory organization or
governmental entity.
ExA-2
10. I agree to reasonably cooperate with the Company in any internal
investigation or administrative, regulatory, or judicial proceeding. I
understand and agree that my cooperation may include, but not be limited
to, making myself available to the Company upon reasonable notice for
interviews and factual investigations; appearing at the Company's request
to give testimony without requiring service of a subpoena or other legal
process; volunteering to the Company pertinent information; and turning
over to the Company all relevant documents which are or may come into my
possession all at times and on schedules that are reasonably consistent
with my other permitted activities and commitments. I understand that in
the event the Company asks for my cooperation in accordance with this
provision, the Company will reimburse me solely for my reasonable
out-of-pocket expenses incurred in connection therewith (including travel,
lodging, meals, and reasonable legal expenses, subject to the Company's
requirements with respect to reporting and documentation of such expenses).
11. Notwithstanding anything in this General Release to the contrary, this
General Release shall not relinquish, diminish, or in any way affect any
rights or claims arising out of any breach by the Company or by any
Released Party of the Agreement.
12. Whenever possible, each provision of this General Release shall be
interpreted in, such manner as to be effective and valid under applicable
law, but if any provision of this General Release is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in
any jurisdiction, such invalidity, illegality or unenforceability shall not
affect any other provision or any other jurisdiction, but this General
Release shall be reformed, construed and enforced in such jurisdiction as
if such invalid, illegal or unenforceable provision had never been
contained herein.
BY SIGNING THIS GENERAL RELEASE, I REPRESENT AND AGREE THAT:
(a) I HAVE READ IT CAREFULLY;
(b) I UNDERSTAND ALL OF ITS TERMS AND KNOW THAT I AM GIVING UP IMPORTANT
RIGHTS, INCLUDING BUT NOT LIMITED TO, RIGHTS UNDER THE AGE DISCRIMINATION
IN EMPLOYMENT ACT OF 1967, AS AMENDED, TITLE VII OF THE CIVIL RIGHTS ACT OF
1964, AS AMENDED; THE EQUAL PAY ACT OF 1963, THE AMERICANS WITH
DISABILITIES ACT OF 1990; AND THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED;
(c) I VOLUNTARILY CONSENT TO EVERYTHING IN IT;
(d) I HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY BEFORE EXECUTING IT AND I
HAVE DONE SO OR, AFTER CAREFUL READING AND CONSIDERATION I HAVE CHOSEN NOT
TO DO SO OF MY OWN VOLITION;
(e) I HAVE HAD AT LEAST 21 DAYS FROM THE DATE OF MY RECEIPT OF THIS RELEASE
SUBSTANTIALLY IN ITS FINAL FORM ON _______________ __, _____
ExA-3
TO CONSIDER IT AND THE CHANGES MADE SINCE THE _______________ __, _____
VERSION OF THIS RELEASE ARE NOT MATERIAL AND WILL NOT RESTART THE REQUIRED
21-DAY PERIOD;
(f) THE CHANGES TO THE AGREEMENT SINCE _______________ ___, _____ EITHER ARE
NOT MATERIAL OR WERE MADE AT MY REQUEST.
(g) I UNDERSTAND THAT I HAVE SEVEN DAYS AFTER THE EXECUTION OF THIS RELEASE TO
REVOKE IT AND THAT THIS RELEASE SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE
UNTIL THE REVOCATION PERIOD HAS EXPIRED;
(h) I HAVE SIGNED THIS GENERAL RELEASE KNOWINGLY AND VOLUNTARILY AND WITH THE
ADVICE OF ANY COUNSEL RETAINED TO ADVISE ME WITH RESPECT TO IT; AND
(i) I AGREE THAT THE PROVISIONS OF THIS GENERAL RELEASE MAY NOT BE AMENDED,
WAIVED, CHANGED OR MODIFIED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY AN
AUTHORIZED REPRESENTATIVE OF THE COMPANY AND BY ME.
DATE:
-------------- -------------------------------------
ExA-4
EXHIBIT B
INITIAL STOCK OPTION AGREEMENT
See attached.
ExB-1
EXHIBIT C
REPLENISHMENT STOCK OPTION AGREEMENT
See attached.
ExC-1
