Exhibit 10.43
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made this 12th day of November, 1998, by
and between NorthEast Optic Network, Inc., a Delaware corporation with its
principal place of business in Waltham, Massachusetts (hereinafter referred to
as the "Company"), and Xxxxxxx X. Xxxxxxxxx of Groton, Massachusetts,
(hereinafter referred to as the "Executive").
WHEREAS, the Company desires to employ the Executive as its Chief
Executive Officer and Chairman of the Board of Directors of the Company; and
WHEREAS, the Executive desires to serve in the employ of the Company
on a full-time basis for the period provided in this Employment Agreement
(hereinafter referred to as the "Agreement") on the terms and conditions
hereinafter set forth; and
WHEREAS, to these ends the Company desires to provide the Executive
with certain payments and benefits during his employment and in the event of the
termination of his employment in certain circumstances; and
WHEREAS, the Company and the Executive wish to set forth the terms
and conditions under which such employment and payments and benefits will occur.
NOW, THEREFORE, in consideration of the offer of employment by the
Company and the acceptance of employment by the Executive, and the mutual
promises and covenants contained herein, the Company and the Executive hereby
agree as follows:
1. Term of Agreement. a. Term. The term of this Agreement shall begin
on November 5, 1998 (hereinafter referred to as the "Effective Date") and shall
expire on
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December 31, 2001; provided, however, that on December 31, 2001 and on each
succeeding December 31 thereafter, the term of this Agreement shall
automatically extend one year unless, not later than the immediately preceding
July 1, either the Company or the Executive shall have given written notice that
such party does not wish to extend the term of this Agreement.
b. Expiration. Notwithstanding anything to the contrary in this
Section 1, except as to vested benefits, this Agreement and all obligations of
the Company hereunder shall terminate on the earliest to occur of (i) the date
of the Executive's death, (ii) thirty (30) days after the Company gives notice
to the Executive that the Company is terminating the Executive's employment for
reason of Total Disability or Cause; or (iii) the expiration of the then current
term of the Agreement as specified in Section 1(a) above.
2. Definitions. The following terms shall have the meanings set forth
below:
"Affiliate" means a person that directly or indirectly through one or
more intermediaries controls, is controlled by, or is under common control with
the Company.
"Board" means the Board of Directors of the Company.
"Cause" means any of the following events or occurrences:
(i) Any act of material dishonesty taken by, or committed at the
direction of, the Executive.
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(ii) Any illegal or unethical conduct which would impair the
Executive's ability to perform his duties under this Agreement or would impair
the business reputation of the Company.
(iii) Conviction of a felony.
(iv) The continued failure of the Executive to perform his
responsibilities and duties under this Agreement in a satisfactory manner, after
demand for performance has been delivered in writing to the Executive specifying
the manner in which the Company believes that the Executive is not performing.
"Change of Control" means the occurrence of any of the following
events:
(i) Any "person," as such term is used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act") (other than
CMP Group, Central Maine Power Company, MaineCom Services, Northeast Utilities,
Mode 1 Communications, Inc., or any affiliate or successor of such companies),
is or becomes the beneficial owner, as defined in Rule 13d-3 under the Exchange
Act, directly or indirectly, of stock of the Company representing more than
fifty percent (50%) of the combined voting power of the Company's then
outstanding stock eligible to vote.
(ii) The stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than a merger or
consolidation which would result in the voting stock of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) more than fifty percent (50%)
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of the combined voting power of the outstanding voting stock of the Company or
such surviving entity immediately after such merger or consolidation; provided,
however, that a merger or consolidation effected to implement a recapitalization
of the Company (or similar transaction) in which no "person" (as hereinabove
defined) acquires more than fifty percent (50%) of the combined voting power of
the Company's then outstanding securities shall not constitute a Change of
Control of the Company.
(iii) The stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale, lease, exchange or
other disposition by the Company of all or substantially all of the Company's
assets (or any transaction having a similar effect).
"Constructive Discharge" means, so long as no Change of Control has
occurred, any reduction in the Executive's annual base salary in effect as of
the Effective Date of this Agreement, or as the same may be increased from time
to time, other than any across-the-board base salary reduction for a group or
all of the executive officers of the Company, and also means, on or after a
Change of Control,
(i) any reduction in the Executive's annual base salary in effect as
of the Effective Date of this Agreement, or as the same may be increased from
time to time;
(ii) a substantial reduction in the nature or scope of the
Executive's responsibilities, duties or authority from those described in
Section 3.c of this Agreement; or
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(iii) a material adverse change in the Executive's title or position.
"Severance Benefits" means the benefits set forth in Section 5.a or
5.c of this Agreement.
"Total Disability" means the complete and permanent inability of the
Executive to perform all of his duties under this Agreement on a full-time basis
for a period of at least six (6) consecutive months, as determined upon the
basis of such evidence, which may include independent medical reports and data.
3. Employment. a. Position. The Company hereby employs the Executive
in the capacity of Chief Executive Officer and Chairman of the Board of
Directors of the Company, and the Executive hereby agrees to become an employee
of the Company in said capacity for the period beginning on the Effective Date
and ending on the date on which the Executive's employment is terminated in
accordance with this Agreement (the "Employment Period"). This Agreement shall
not restrict in any way the right of the Company to terminate the Executive's
employment at whatever time and for whatever reason it deems appropriate, nor
shall it limit the right of the Executive to terminate employment at any time
for whatever reason he deems appropriate.
b. Performance. The Executive agrees that during the Employment
Period he shall devote substantially all his business attention and time to the
business and affairs of the Company, and use his best efforts to perform
faithfully and efficiently the duties and responsibilities of the Executive
under this Agreement. It is expressly understood that (i) the Executive may
devote a reasonable amount of time to such
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industry associations and charitable and civic endeavors as shall not materially
interfere with the services that the Executive is required to render under this
Agreement, and (ii) the Executive may serve as a member of one or more boards of
directors of companies that are not affiliated with the Company and do not
compete with the Company or any of its Affiliates.
c. Job Duties. The Executive shall have the usual duties and
responsibilities of the most senior executive officer of a corporation, and
shall, subject to the supervision and guidance of the Board, manage all of the
business affairs and employees of the Company. Such responsibilities may be
expanded and, so long as no Change of Control has occurred, may be decreased as
the business needs of the Company require.
4. Compensation and Benefits. a. During the Employment Period, the
Executive shall be compensated as follows:
(i) Salary. The Executive shall receive an annual base salary, the
amount of which shall be reviewed regularly and determined from time to time,
but which shall not be less than $210,000. His salary shall be payable in
accordance with Company payroll practices.
(ii) Bonus. The Executive shall be entitled to earn, at the
discretion of the Board, an annual bonus in 1999 and in each calendar year
thereafter, up to an amount equal to thirty-five percent (35%) of his annual
base salary, by attaining such performance goals and objectives as the Board
shall set, in consultation with the Executive, from time to time.
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(iii) Participation in Executive Plans. The Executive shall be
entitled to participate in any and all plans and programs maintained by the
Company from time to time to provide benefits for its executives, including
without limitation any short-term or long-term incentive plan or program, in
accordance with the terms and conditions of any such plan or program or the
administrative guidelines relating thereto, as may be amended from time to time.
(iv) Participation in Salaried Employee Plans. The Executive shall be
entitled to participate in any and all plans and programs maintained by the
Company from time to time to provide benefits for its salaried employees
generally, including without limitation any savings and investment, stock
purchase or group medical, dental, life, accident or disability insurance plan
or program, subject to all eligibility requirements of general applicability, to
the extent that executives are not excluded from participation therein under the
terms thereof or under the terms of any executive plan or program or any
approval or adoption thereof.
(v) Other Fringe Benefits. The Executive shall be entitled to all
fringe benefits generally provided by the Company at any time to its full-time
salaried employees, including without limitation paid vacation, holidays and
sick leave but excluding severance pay, in accordance with generally applicable
Company policies with respect to such benefits.
b. Stock Options. The Company shall grant the Executive options to
purchase up to six-hundred forty-nine thousand six hundred twenty-eight
(649,628) shares of the Common Stock of the Company, exercisable as hereinafter
provided. To the
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extent possible, these options shall be considered "statutory" options under
Section 422 of the Internal Revenue Code of 1986, as amended, (the "Code"), and
shall be granted under the 1998 Stock Incentive Plan of the Company (the
"Plan"). The options shall be granted as follows:
(i) On the date five trading days after and including the date that
the Executive is elected to the position of Chief Executive Officer of the
Company by the Board of Directors (the date of such election being the "Election
Date" and the date five trading days after and including the Election Date being
the "Grant Date"), the Executive shall be granted an option (evidenced by one or
more option agreements) to purchase 162,407 shares of Common Stock at an
exercise price per share equal to the Market Price (as defined below). This
option will become exercisable in full on the first anniversary of the Election
Date provided that the Executive is actively employed by the Company on such
date. The "Market Price" shall mean the average of the bid and asked price as
reported on the Nasdaq National Market for each of the five trading days
following the Election Date, but under no circumstances shall the Market Price
be less than the fair market value of a share of Common Stock on the Grant Date.
(ii) On the Grant Date, the Executive shall be granted a second
option (evidenced by one or more option agreements) to purchase 187,593 shares
of Common Stock at the Market Price. This option shall become exercisable as to
(A) 162,407 shares on the second anniversary of the Election Date and (B) 25,186
shares
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on the third anniversary of the Election Date, provided that the Executive is
still actively employed by the Company on each such date.
(iii) On January 1, 1999, provided that the Executive is still
actively employed by the Company on such date, the Executive will be granted a
third option (evidenced by one or more option agreements) to purchase 299,628
shares of Common Stock at an exercise price per share equal to the greater of
$12.00 or the fair market value per share of Common Stock on such date. This
option shall become exercisable as to (A) 137,221 shares on the third
anniversary of the Election Date and (B) 162,407 shares on the fourth
anniversary of the Election Date, provided that the Executive is still actively
employed by the Company on each such date.
Once such options become exercisable, they shall continue to be
exercisable and shall not expire until the earlier of (i) the tenth anniversary
of the Grant Date, or (ii) three (3) months after the Executive's termination of
employment; provided, however, that if the Executive's employment is terminated
by the Company for cause as defined in the Plan, any unexercised options shall
be revoked and shall automatically expire on his date of termination of
employment for cause as specified in Section 6 below. If the Common Stock of the
Company is the subject of a stock split, dividend or recapitalization prior to
the exercise of the options described herein, the number of shares and the
option price shall be equitably adjusted to reflect the impact of the stock
split, dividend or recapitalization. The options granted hereunder shall be
non-transferable by the Executive, but if the Executive dies prior to the
exercise of the options granted hereunder, such options shall be exercisable by
the
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Personal Representative or Executor of his Estate for a period one (1) year
after his date of death, but only as to options which the Executive had the
right to exercise on his date of death. The options granted hereunder shall be
evidenced by standard Stock Option Agreements under the Plan.
c. Withholding. All compensation payable under this Section 4 shall
be subject to normal payroll deductions for withholding income taxes, social
security taxes and the like.
5. Severance Benefits. a. Change of Control. If, on or after a Change
of Control, the Executive's employment with the Company is terminated during the
Employment Period by the Company and/or any successor for any reason other than
death, Total Disability or Cause, or by the Executive within twelve (12)
calendar months of a Constructive Discharge, or if the Company elects not to
renew or extend the Agreement at the end of the initial term or any extended
term (as provided in Section 1.a. above), Severance Benefits shall be provided
as follows:
(i) The Company shall pay the Executive, in one lump sum cash
payment, within sixty (60) days following the date of termination of employment
as defined in Section 6 below, an amount equal to 2.99 times the Executive's
then-current base salary.
(ii) The Company shall provide the Executive with so-called COBRA
medical continuation coverage paid by the Company for a period up to eighteen
(18) months, or until the Executive obtains coverage under another group medical
plan with another employer, whichever occurs first.
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(iii) The Company shall pay a fee to an independent outplacement firm
selected by the Executive for outplacement services in an amount equal to the
actual fee for such services up to a total of $10,000.
b. Parachute Provision. Notwithstanding the provisions of Section 5.a
hereof, if, in the opinion of tax counsel selected by the Company's independent
auditors,
(i) the Severance Benefits set forth in said Section 5.a and any
payments or benefits otherwise payable to the Executive would constitute
"parachute payments" within the meaning of Section 280G(b)(2) of the Internal
Revenue Code of 1986, as amended (the "Code") (said Severance Benefits and other
payments or benefits being hereinafter collectively referred to as "Total
Payments"), and
(ii) the aggregate present value of the Total Payments would exceed
2.99 times the Executive's base amount, as defined in Section 280G(b)(3) of the
Code, then, such portion of the Severance Benefits described in Section 5.a
hereof as, in the opinion of said tax counsel, constitute "parachute payments"
shall be reduced as directed by tax counsel so that the aggregate present value
of the Total Payments is equal to 2.99 times the Executive's base amount. The
tax counsel selected pursuant to this Section 5.b may consult with tax counsel
for the Executive, but shall have complete, sole and final discretion to
determine which Severance Benefits shall be reduced and the amounts of the
required reductions. For purposes of this Section 5.b, the Executive's base
amount and the value of the Total Payments shall be determined by the Company's
independent auditors in accordance with the principles
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of Section 280G of the Code and based upon the advice of tax counsel selected
thereby.
c. No Change of Control. If no Change of Control has occurred, and
the Executive's employment with the Company is terminated during the Employment
Period either (i) by the Company for any reason other than death, Total
Disability or Cause, or (ii) by the Executive within six (6) calendar months of
a Constructive Discharge, or if the Company elects not to renew or extend the
Agreement at the end of the initial term or any extended term (as provided in
Section 1.a. above), the Company shall pay the Executive, in one lump sum
payment within sixty (60) days following the date of termination of employment
as defined in Section 6 below, an amount equal to one (1) times the Executive's
annual base salary in effect on the date immediately preceding the date of
termination, or preceding the date of a Constructive Discharge attributable to a
base salary reduction if applicable.
6. Date of Termination. For purposes of this Agreement, the date of
termination of the Executive's employment shall be the date notice of
termination is given to the Executive by the Company and/or any successor or, in
the case of a Constructive Discharge, the date set forth in a written notice
given to the Company by the Executive, provided that the Executive gives such
notice within twelve (12) calendar months of the Constructive Discharge in the
case of a Change of Control, and within six (6) calendar months of the
Constructive Discharge in other cases, and specifies therein the event
constituting the Constructive Discharge.
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7. Taxes. x. Xxxxx-Up Amounts. In the event that any portion of the
Severance Benefits provided in Section 5 is subject to tax under Code ss.4999,
or any successor provision thereto (the "Excise Tax"), the Company shall pay to
the Executive an additional amount (the "Gross-Up Amount") which, after payment
of all federal and State income taxes thereon (assuming the Executive is at the
highest marginal federal and applicable State income tax rate in effect on the
date of payment of the Gross-Up Amount) and payment of any Excise Tax on the
Gross-Up Amount, is equal to the Excise Tax payable by the Executive on such
portion of the Severance Benefits. Any Gross-Up Amount payable hereunder shall
be paid by the Company coincident with the payment of the Severance Benefits
described in Section 5.a of this Agreement.
b. Tax Withholding. All amounts payable to the Executive under this
Agreement shall be subject to applicable withholding of income, wage and other
taxes.
8. Non-Competition, Confidentiality and Cooperation. a. The Executive
agrees that:
(i) During the Employment Period and for one (1) year after the
termination of the Executive's employment with the Company for any reason other
than a Change of Control, the Executive shall not serve as a director, officer,
employee, partner or consultant or in any other capacity in any business that is
a competitor of the Company, or solicit Company employees for employment or
other participation in any such business, or take any other action intended to
advance the
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interests of such business; provided, however, that this Section 8.a.(i) shall
not apply after the termination of the Executive's employment if the Executive
voluntarily terminates employment and is not eligible to receive a Severance
Benefit under Section 5.a. or 5.c. above; and
(ii) During and after the Executive's employment with the Company he
shall not divulge or appropriate to his own use or the use of others any secret,
proprietary or confidential information or knowledge pertaining to the business
of the Company, or any of its Affiliates, obtained during his employment with
the Company; and
(iii) During the Employment Period he shall support the Company's
interests and efforts in all regulatory, administrative, judicial or other
proceedings affecting the Company and, after the termination of his employment
with the Company, he shall use reasonable efforts to comply with all reasonable
requests of the Company that he cooperate with the Company, whether by giving
testimony or otherwise, in regulatory, administrative, judicial or other
proceedings affecting the Company except any proceeding in which he may be in a
position adverse to that of the Company. After the termination of employment,
the Company shall reimburse the Executive for his reasonable expenses and his
time, at a reasonable rate to be determined, for the Executive's cooperation
with the Company in any such proceeding.
(iv) The term "Company" as used in this Section 8 shall include the
Company, CMP Group, Central Maine Power Company, MaineCom Services,
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Northeast Utilities, Mode 1 Communications, Inc. or any affiliate or any
successor to the business or operations of those companies, and any business
entity spun-off, divested, or distributed to shareholders which shall continue
the operations of such entities.
The provisions of this Section 8 shall survive the expiration or
termination of this Agreement. The Executive agrees that the Company shall be
entitled to injunctive relief to prevent any breach or threatened breach of
these provisions. In the event of his failure to comply with part (i), (ii) or
(iii) of this Section 8, the Executive agrees that the Company shall have no
further obligation to pay the Executive any Severance Benefits under Section
5.a. or 5.c. of this Agreement.
9. No Mitigation. The Executive shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other
employment.
10. Assignment. This Agreement and the rights and obligations of the
Company hereunder shall inure to the benefit of and shall be binding upon the
successors and assigns of the Company, including without limitation any
corporation or other entity acquiring all or substantially all of the business
or assets of the Company whether by operation of law or otherwise. This
Agreement and the rights of the Executive hereunder shall not be assignable by
the Executive, and any assignment by the Executive shall be null and void.
11. Arbitration. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
Boston, Massachusetts, in accordance with the rules of the American Arbitration
Association
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then in effect. The pendency of any such dispute or controversy shall not affect
any rights or obligations under this Agreement. Judgment may be entered on the
arbitrator's award in any court having jurisdiction.
12. Waiver; Amendment. The failure of either party to enforce, or any
delay in enforcing, any rights under this Agreement shall not be deemed to be a
waiver of such rights, unless such waiver is an express written waiver which has
been signed by the waiving party. Waiver of any one breach shall not be deemed
to be a waiver of any other breach of the same or any other provision hereof.
This Agreement can be amended only by written instrument signed by each party
hereto and no course of dealing or practice or failure to enforce or delay in
enforcing any rights hereunder may be claimed to have effected an amendment of
this Agreement.
13. Singular Contract. This Agreement is a singular agreement between
the Executive and the Company, and is not part of a general "plan" or "program"
for employees as a group. This Agreement shall, under no circumstances, be
deemed to be an "employee welfare benefit plan" or an "employee pension benefit
plan" as defined in the Employee Retirement Income Security Act of 1974
(hereinafter referred to as "ERISA"). Notwithstanding, the Company may submit a
letter to the Department of Labor indicating the possible establishment of a
so-called unfunded "top hat" plan for the benefit of a select group of
management and highly compensated employees to avoid the costs and uncertainties
which may occur in the event of a Department of Labor audit and challenge
relative to compliance with any allegedly applicable provisions of ERISA. The
Executive specifically acknowledges
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and agrees that the filing of the so-called "top hat" letter notice by the
Company shall not be construed or interpreted as an admission on the part of the
Company that this Agreement constitutes an ERISA plan, and the Company hereby
categorically states, and the Executive hereby agrees, that this Agreement is an
ad hoc individual contract with the Executive.
14. Notices. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and sent by first-class, registered
or certified mail or hand-delivered to the Executive at the last residence
address he has provided to the Company or, in the case of the Company, at its
principal executive offices to the attention of the Corporate Secretary.
15. Titles and Captions. The section and paragraph titles and
captions contained herein are for convenience only and shall not be held to
explain, modify, amplify, or aid in the interpretation, construction or meaning
of the provisions of this Agreement.
16. Miscellaneous. This Agreement shall be construed and enforced in
accordance with the laws of the Commonwealth of Massachusetts. In the event that
any provisions of this Agreement shall be held to be invalid, the other
provisions hereof shall remain in full force and effect.
17. Entire Agreement. The terms of this Agreement are intended by the
parties to be the final expression of their agreement with respect to the
employment of the Executive by the Company and may not be contradicted by
evidence of any prior or contemporaneous oral or written agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date first written above.
WITNESS THE EXECUTIVE:
/s/ Xxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
THE COMPANY:
WITNESS: NorthEast Optic Network, Inc.
/s/ Xxxxxx X. Xxxxxxxx /s/ F. Xxxxxxx XxXxxxx
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By: F. Xxxxxxx XxXxxxx
Member of the Board of Directors
and Authorized Signatory
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