Exhibit 10.43
June 5, 2001
Xxxxx Xxxxxx
00 Xxxxxxx Xxxxxx #0
Xxxxxx, XX 00000
Dear Xxx:
I am pleased to offer you (the "Employee") this Employment Agreement (the
"Agreement") with Genuity Solutions Inc. ("the Company" or "Genuity"), located
at 000 Xxxxxxxxxxxx Xxx, Xxxxxx, XX 00000, as we enter an exciting and
challenging time for our Company.
1. TITLE; CAPACITY. The Employee shall serve as Senior Vice President and
Chief Strategy and Marketing Officer, or in such other position as the Company
or its Board of Directors (the "Board") may reasonably determine from time to
time. The Employee shall be subject to the supervision of, and shall have such
authority as is delegated to him/her by, the Board or such officer of the
Company as may be designated by the Board.
The Employee hereby accepts such employment and agrees to undertake the
duties and responsibilities inherent in such position and such other duties and
responsibilities as the Board or its designee shall from time to time reasonably
assign to him/her. The Employee agrees to devote his/her entire business time,
attention and energies to the business and interests of the Company while
employed by the Company.
2. COMPENSATION AND BENEFITS.
(a) SALARY. The Company shall pay the Employee a base salary at the
annualized rate of Two Hundred and Eighty Thousand Dollars
($280,000), consistent with the Company's regular payroll
procedures. Employee's base salary shall be subject to adjustment
thereafter as determined by the Board.
(b) EMPLOYEE INCENTIVE PLAN ("EIP"). The Employee shall be eligible
to participate in the EIP bonus program in accordance with the
terms and conditions of the applicable plan.
(c) BENEFITS. The Employee shall be entitled to participate in all
benefit programs that the Company establishes and makes available
to its employees, if any, to the extent that Employee's position,
tenure, salary, age, health and other qualifications make him/her
eligible to participate.
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3. CIRCUMSTANCES TRIGGERING RECEIPT OF TERMINATION BENEFITS. Provided that
the Employee is not in violation of the provisions of his/her continuing
obligations under his/her Stock Option Agreement and/or Proprietary Information
and Confidentiality Agreement, including but not limited to his/her
non-solicitation, non-competition, and non-disclosure obligations, the Company
shall provide the Employee with the benefits set forth in Section 4 if the
Employee is either (a) terminated for reasons other than for Cause, or (b)
resigns as the result of a significant diminution in his/her responsibilities.
For purposes of this Agreement, "Cause" is defined as a good faith determination
by the Chief Executive Officer, that the Employee has committed an act or
omission that is materially contrary to Genuity's best interests or that the
Employee materially breached any of the terms and conditions of this Agreement.
4. TERMINATION BENEFITS. Subject to and in accordance with the provisions
set forth in Section 3, and further subject to the execution of a release
satisfactory to the Company releasing Genuity Solutions Inc., its parent,
subsidiaries, affiliates, shareholders, directors, officers, employees,
representatives, and agents and their successors and assigns from any and all
claims the Employee or his/her successors and beneficiaries might then have
against them (excluding any claims the Employee might then have under this
Agreement or any employee benefit plan that is subject to the vesting standards
imposed by the Employee Retirement Income Security Act of 1974, as amended), the
following benefits (subject to any applicable taxes required to be withheld)
shall be paid to the Employee as follows:
(a) COMPENSATION. The Employee will be paid his/her then current rate
of base pay upon termination for a period of twelve (12) months,
less applicable withholdings. Any compensation paid pursuant to
this Section 4(a) will be paid in a manner to be determined
solely and exclusively by the Company, provided that such
compensation is paid fully within a twelve (12) month period
following the date of termination.
(b) EXECUTIVE INCENTIVE PLAN ("EIP"). The Employee will be entitled
to receive his/her target EIP bonus for the current year as
determined by, and at a time that is in accordance with, the
applicable plan.
(c) STOCK OPTIONS. The Employee will be entitled to immediately vest
in any unvested portion of his/her Stock Option Grant (the
"Option"). The Employee will have a period of two years following
his/her last day of employment during which he/she may exercise
any vested portion of the Option, including any amount that
immediately vested pursuant to the previous sentence, provided
that the Option shall not be exercisable after the Final Exercise
Date set forth in the Employee's Stock Option Agreement.
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(d) BENEFITS. The Employee will be entitled to continue his/her
current group health and welfare insurance benefits (medical,
dental, vision, life), with both the Company and the Employee
continuing to pay their respective portion of the applicable
premiums until the earlier of the following: (a) for a period of
twelve months following the Employee's last day of employment; or
(b) until the Employee becomes covered under a group health plan
of another employer.
(e) FINANCIAL PLANNING. The Employee will receive financial planning
services to be determined by the Company and provided by a vendor
selected by the Company, for up to twelve months following the
Employee's last day of employment.
(f) OUTPLACEMENT COUNSELING. - The Employee will be offered executive
outplacement counseling services deemed appropriate by the
Company and provided by a vendor selected by the Company, in its
sole and exclusive judgment.
5. CONTINUING OBLIGATIONS. The Employee hereby ratifies and confirms
his/her continuing obligations under his/her Stock Option Agreement and
Proprietary Information and Confidentiality Agreement with the Company. Without
limiting the generality of the foregoing, the Employee agrees that all
documents, records, techniques, business secrets and other information which
have come into his/her possession from time to time during his/her employment
hereunder shall be deemed to be confidential and proprietary to the Company and
he/she shall retain in confidence any confidential information known to him/her
concerning the Company and its parent and/or subsidiaries and their respective
businesses and such information shall not be disclosed. If the Employee is found
to be in violation of his/her non-solicitation, non-competition, and
non-disclosure obligations under the Employee's Stock Option Agreement or
Proprietary Information and Confidentiality Agreement, as determined by the
Company, any and all ongoing termination benefits under Section 4 shall
immediately cease and any previously paid termination benefits under Section 4
must be immediately returned to the Company.
6. NOTICES. All notices required or permitted under this Agreement shall be
in writing and shall be deemed effective upon personal delivery or upon deposit
in the United States Post Office, by registered or certified mail, postage
prepaid, addressed to the other party at the addresses shown above, or at such
other address or addresses as either party shall designate to the other in
accordance with this Section 6.
7. PRONOUNS. Whenever the context may require, any pronouns used in this
Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular forms of nouns and pronouns shall include the plural, and vice
versa.
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8. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties and supersedes all prior agreements and understandings,
whether written or oral, relating to the subject matter of this Agreement.
9. AMENDMENT. This Agreement may be amended or modified only by a written
instrument executed by both the Company and the Employee.
10. GOVERNING LAW. This Agreement shall be construed, interpreted and
enforced in accordance with the laws of the Commonwealth of Massachusetts.
11. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of both parties and their respective successors and assigns,
including any corporation with which or into which the Company may be merged or
which may succeed to its assets or business, provided, however, that the
obligations of the Employee are personal and shall not be assigned by him/her.
12. MISCELLANEOUS.
(a) No delay or omission by the Company in exercising any right under
this Agreement shall operate as a waiver of that or any other
right. A waiver or consent given by the Company on any one
occasion shall be effective only in that instance and shall not
be construed as a bar or waiver of any right on any other
occasion.
(b) The captions of the sections of this Agreement are for
convenience of reference only and in no way define, limit or
affect the scope or substance of any section of this Agreement.
(c) In case any provision of this Agreement shall be invalid, illegal
or otherwise unenforceable, the validity, legality and
enforceability of the remaining provisions shall in no way be
affected or impaired thereby.
Sincerely yours,
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
I agree to the terms described above.
/s/ Xxxxx Xxxxxx June 5, 2001
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XXXXX XXXXXX DATE
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