EXHIBIT 10.10
October 11, 2001
Xxxxx X Xxxxxxx
0000 Xxxx Xxxxxx Xx
Xxxxxx, XX 00000
Severance Agreement
Dear Xxxxx:
As you are aware, the CLEC sector, as well as the telecommunications
industry in general, has experienced tremendous volatility and economic
challenges over the past several months. Consequently, Mpower Communications
Corp., a Nevada corporation ("Mpower", and collectively with its parent and
subsidiaries, the "Company") is currently contemplating a corporate
restructuring (the "Restructuring"). We consider your continued dedication,
attention and service to the Company essential to successfully effecting the
Restructuring, but acknowledge that the Restructuring may create a certain level
of uncertainty regarding your professional and financial future. In order to
induce you to remain in the employ of the Company; the Company has determined to
offer you the benefits described in this letter agreement (the "Agreement").
1. YOUR UNDERTAKINGS. You hereby agree that you will continue to use
your best efforts and devote your full business time to the business and affairs
of the Company and will use your best efforts to assist the Company in effecting
the Restructuring.
2. SEVERANCE BENEFIT.
(a) You are entitled to receive a severance benefit (the "Severance
Benefit") of $150,000.05 if your employment is terminated (i) by the Company
without Cause, (ii) due to your death or Disability or (iii) by you for Good
Reason.
(a) The Severance Benefit will be paid over approximately nine
months (the "Severance Period") in equal installments in accordance with the
Company's standard payroll practices; provided, however, that the Mpower Board
of Directors (the "Board") may elect, in its sole discretion, to pay the
Severance Benefit in a lump sum.
(b) During the Severance Period, you shall make yourself reasonably
available to the Company, on an "as needed" basis, to provide information
regarding the business and affairs of the Company that you attained in
connection with your employment. The Company shall reimburse you for all
reasonable expenses incurred in connection with this Section 4(c) in accordance
with the Company's policies as in effect from time to time.
(c) If your employment is terminated by the Company for Cause or by
you without Good Reason, you will not be entitled to receive a Severance
Benefit.
"Cause" for termination of your employment with the Company means
the occurrence of any of the following events: (i) your willful material
violation of any law or
regulation applicable to the business of the Company; (ii) your conviction of,
or plea of "no contest" to, a felony; (iii) any willful perpetration by you of
an act involving moral turpitude or common law fraud whether or not related to
your activities on behalf of the Company; (iv) any act of gross negligence by
you in the performance of your duties as an employee; (v) any violation of the
"Standards of Conduct" set forth in the Company's employee manual, as in effect
from time to time; or (vi) any willful misconduct by you that is materially
injurious to the financial condition or business reputation of, or is otherwise
materially injurious to, the Company; or (vii) failure to meet the threshold
quota set forth in the Company's Commission Plan as in effect from time to time,
if applicable.
"Disability" shall have the meaning set forth in the Company's
long-term disability plan applicable to you.
(i) "Good Reason" for termination of your employment means the occurrence of
any of the following events: (i) [a material adverse change in your title
or duties in effect on the effective date of this Agreement] [key
executives only], (ii) a material reduction in your base salary or
incentive bonus opportunity in effect on October 1, 2001, or (iii) the
relocation of your principal place of business to a location that is more
than 35 miles from your primary business location on October 1, 2001
without your consent.
3. CONFIDENTIALITY; PROTECTIVE COVENANTS. If at any time you (i)
disclose the terms of this Agreement to any third party, including, without
limitation, a Company employee, or (ii) violate any of the protective covenants
set forth in Section 5 of this Agreement, you shall immediately forfeit your
rights to the Severance Benefit; provided, however that nothing in this Section
3 shall prohibit you from disclosing the terms of this Agreement to (i) the
Company's Chief Executive Officer, (ii) the direct reports of the Chief
Executive Officer (President and COO, Chief Financial Officer, EVP Strategy
Planning and Business Development, SVP Legal, SVP People Services, VP Corporate
Communications), (iii) your immediate family members and/or (iv) your legal, tax
and financial advisors.
4. SUCCESSORS; BINDING AGREEMENT.
(a) Assumption by Successor. The Company will use its best efforts
to require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) (the "Successor") to (i) all or substantially all of
the business or assets of the Company or (ii) the Company's "Market" applicable
to you, to expressly assume and to agree to perform the Company's obligations
under this Agreement in the same manner and to the same extent that the Company
would be required to perform such obligations if no such succession had taken
place; provided, however, that in the event that this Agreement is not assumed
by the Successor, the Severance Benefit shall become immediately payable in
accordance with the terms of this Agreement. As used herein, the "Company" shall
mean the Company as hereinbefore defined and any Successor which assumes and
agrees to perform its obligations by operation of law or otherwise.
(b) Enforceability; Beneficiaries. This Agreement shall be binding
upon and inure to the benefit of you (and your personal representatives and
heirs) and the Company and any Successor which expressly agrees to assume and
perform its obligations under this Agreement. This Agreement shall inure to the
benefit of and be enforceable by your personal or
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legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If you should die while any amount would
still be payable to you hereunder if you had continued to live, all such
amounts, unless otherwise provided herein, shall be paid in accordance with the
terms of this Agreement to your devisee, legatee or other designee or, if there
is no such designee, to your estate.
5. PROTECTION OF THE COMPANY'S INTERESTS.
(a) No Competing Employment. For so long as you are employed by the
Company and during the Severance Period (such period being referred to
hereinafter as the "Restricted Period"), you shall not, without the prior
written consent of the Board, directly or indirectly, own an interest in,
manage, operate, join, control, lend money or render financial or other
assistance to or participate in or be connected with, as an officer, employee,
partner, stockholder, consultant or otherwise, any individual, partnership,
firm, corporation or other business organization or entity that competes with
the business of the Company by providing any goods or services provided or under
development by the Company at the effective date of your termination of
employment (the "Business"); provided, however, that this subparagraph 5(a)
shall not proscribe your ownership, either directly or indirectly, of less than
one (1) percent of any class of securities which are listed on a national
securities exchange or quoted on the automated quotation system of the National
Association of Securities Dealers, Inc.
(b) No Interference. During the Restricted Period, you shall not,
directly or indirectly, whether for your own account or for the account of any
other individual, partnership, firm, corporation or other business organization
(other than the Company), (i) solicit, or endeavor to entice away from the
Company, or otherwise interfere with the relationship of the Company with, any
person or entity who is, or was within the then most recent twelve-month period,
(A) employed by, or otherwise engaged to perform services for, the Company, or
(B) a customer or client of the Company or (ii) otherwise interfere with the
business of the Company.
(c) Non-Disparagement. During the Restricted Period and thereafter,
you shall not intentionally make any public statement, or publicly release any
information, that disparages or defames the Company, or any of its officers and
directors, and shall not intentionally cause or encourage any other person to
make any such statement or publicly release any such information.
(d) Confidentiality. You understand and acknowledge that in the
course of your employment, you have had and will continue to have access to and
will learn confidential information regarding the Company that concerns the
technological innovations, operations and methodologies of the Company,
including, without limitation, business plans, financial information, protocols,
proposals, manuals, procedures and guidelines, computer source codes, programs,
software, know-how and specifications, copyrights, trade secrets, market
information, Developments (as hereinafter defined), data and customer
information (collectively, "Proprietary Information"). You agree that during the
period beginning on the date hereof and continuing in perpetuity thereafter, you
shall keep confidential and shall not directly or indirectly disclose any such
Proprietary Information to any third party, except as required to fulfill your
duties in connection with your employment by the Company, and shall not misuse,
misappropriate or exploit such Proprietary Information in any way. The
restrictions contained herein shall not apply to any information which you can
demonstrate (i) was already available to the public at the
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time of disclosure, or subsequently became available to the public, otherwise
than by breach of this Agreement or (ii) was the subject of a court order to
disclose. Upon your termination of employment, you will immediately return to
the Company all Proprietary Information and copies thereof in your possession.
"Developments" shall mean all data, discoveries, findings, reports,
designs, inventions, improvements, methods, practices, techniques, developments,
programs, concepts and ideas, whether or not patentable, relating to the present
or planned activities, or the products and services of the Company.
(e) Assignment of Developments. During your employment, all
Developments that are at any time made, conceived or suggested by you, whether
acting alone or in conjunction with others, shall be the sole and absolute
property of the Company, free of any reserved or other rights of any kind on
your part. If such Developments were made, conceived or suggested by you during
or as a result of your employment relationship with the Company, you shall
promptly make full disclosure of any such Developments to the Company and, at
the Company's cost and expense, do all acts and things (including, among others,
the execution and delivery under oath of patent and copyright applications and
instruments of assignment) deemed by the Company to be necessary or desirable at
any time in order to effect the full assignment to the Company, of your right
and title, if any, to such Developments. You acknowledge and agree that any
invention, concept, design or discovery that concretely relates to or is
associated with your work for the Company that is described in a patent
application or is disclosed to a third party directly or indirectly by you
during the Restricted Period shall be the property of and owned by the Company
and such disclosure by patent application or otherwise shall constitute a breach
of Section 5(a) above.
(f) Injunctive Relief. Without intending to limit the remedies
available to the Company, you acknowledge that a breach of any of the covenants
contained in this Section 5 may result in material irreparable injury to the
Company for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event
of such a breach or threat thereof, the Company shall be entitled to obtain a
temporary restraining order and/or a preliminary or permanent injunction
restraining you from engaging in activities prohibited by this Section 5 or such
other relief as may be required to specifically enforce any of the covenants in
this Section 5.
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6. MISCELLANEOUS.
(a) Amendments, Waivers, Etc. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to by you and the Company in writing. No waiver by either party hereto at
any time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreements or representations,
oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not expressly set forth in this
Agreement and this Agreement shall supersede all prior agreements, negotiations,
correspondence, undertakings and communications of the parties, oral or written,
with respect to the subject matter hereof.
(b) Effective Date. This Agreement shall become effective upon the
receipt by the Company of your signed acknowledgement of this Agreement.
(c) Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
(d) No Contract of Employment. Nothing in this Agreement shall be
construed as giving you any right to be retained in the employ of the Company or
interfere in any way with the Company's right to terminate your employment for
any reason, subject to the provisions of this Agreement.
(e) Tax Withholding. Amounts paid to you hereunder shall be subject
to all applicable federal, state and local withholding taxes.
(f) Waiver and Release. The Company's obligations to you under this
Agreement (including, without limitation, any obligations with respect to the
Severance Benefit, if any) will be subject to your execution and delivery to the
Company of a Waiver and Release substantially in the form attached hereto as
Exhibit A.
(g) Arbitration. Any dispute or controversy arising under or in
connection with this Agreement that cannot be mutually resolved by you and the
Company will be settled exclusively by arbitration in New York, New York, before
three arbitrators of exemplary qualifications and stature. One such arbitrator
will be selected by each of you and the Company. The arbitrators selected by you
and the Company will jointly select the third arbitrator. Judgment may be
entered on the arbitrators' award in any court having jurisdiction. You and the
Company hereby agree that the arbitrators will be empowered to enter an
equitable decree mandating specific enforcement of the terms of this Agreement.
The party that prevails in any arbitration hereunder will be reimbursed by the
other party hereto for any reasonable legal fees and out-of-pocket expenses
directly attributable to such arbitration, and such other party will bear all
expenses of the arbitrators.
(h) Notice. Any notice to be given to the Company under the terms of
this Agreement shall be addressed to the Company in care of its General Counsel,
000 Xxxxx'x Xxxxx Xxxxx 000, Xxxxxxxxx, Xxx Xxxx 00000 and with a copy to
Shearman & Sterling, 000 Xxxxxxxxx
0
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxxxx X. Xxxxxxx, Esq., and any notice
to be given to you may be addressed to you at your address as it appears on the
payroll records of the Company, or at such other address as either party may
hereafter designate in writing to the other. Any such notice shall be deemed to
have been duly given if and when enclosed in a properly sealed envelope or
wrapper addressed as aforesaid, postage paid and deposited in a government post
office.
(i) Governing Law. This Agreement will be governed by, and construed
in accordance with, the laws of the State of New York without reference to any
choice of law provisions therein.
(j) Supersedes Prior Agreements. This Agreement represents the
entire agreement of the parties on the subject matter hereof and shall supersede
any and all previous contracts, arrangements or understandings between the you
and the Company regarding your employment and termination of employment.
(k) Headings. The headings contained in this Agreement are intended
solely for convenience of reference and shall not affect the rights of the
parties to this Agreement.
(l) ERISA. It is the intent of the Company that Severance Benefit
payable pursuant to this Agreement constitute an "employee welfare benefit plan"
within the meaning of Section 3(1) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA") and comply with the applicable requirements of
ERISA.
Sincerely,
Mpower Communications Corp.
By: /s/ Xxxxx X. Xxxx
-------------------------
Xxxxx X. Xxxx
Chief Executive Officer
Accepted and Agreed
/s/ Xxxxx X. Xxxxxxx
-------------------------
Xxxxx X. Xxxxxxx
Dated: October 18, 2001
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EXHIBIT A
Mpower Communications Corp.
000 Xxxxx'x Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
RELEASE
I, Xxxxx X Xxxxxxx, am a party to a Severance Agreement (the
"AGREEMENT"), dated October 10, 2001, with Mpower Communications Corp., a Nevada
corporation (the "COMPANY"). The Agreement contemplates that, in consideration
for my receipt of the Severance Benefit (as such term is defined in the
Agreement), I will deliver a Release in the form set forth below, and I now
desire to deliver such Release to the Company in the manner contemplated by the
Agreement.
1. General Release. In consideration of the Severance Benefit, I
hereby release and forever discharge the Released Parties (as defined below)
from any and all claims, actions, causes of action, suits, costs controversies,
judgments, decrees, verdicts, damages, liabilities, attorney's fees, covenants,
contracts and agreements (collectively, including claims, actions and causes of
action set forth in Section 2 below, "CLAIMS") that I may have against the
Released Parties based on or arising out of (i) my employment relationship with
and service as an employee, officer or director of the Company, and the
termination of such relationship or service, or (ii) any event, condition,
circumstance or obligation that occurred, existed or arose on or prior to the
date hereof, including, without limitation, any Claims arising under any
applicable federal, state or local law, or any law of any foreign jurisdiction,
whether such Claim arises under statute, common law or in equity, and whether or
not I am presently aware of such claim. I further agree that the payments and
benefits described in the Agreement are in full satisfaction of any and all
Claims for payments or benefits that I may have against the Company arising out
of my employment relationship, my service as an employee, officer or director of
the Company and the termination thereof. I also do forever release, discharge
and waive any rights that I may have to recover in any proceedings brought by
any federal stat or local agency against the Released Parties to enforce any
laws.
For purposes of this release, the "RELEASED PARTIES" means,
individually and collectively, the Company, its present, former and future
shareholders, partners, limited partners, affiliates, parents, subsidiaries,
successors, directors, officers, employees, agents, attorneys, successors and
assigns.
2. Specific Release of ADEA Claims. In further consideration of the
Severance Benefit, I hereby release and forever discharge the Company and its
employees, officers and directors from any and all Claims that I may have as of
the date of my signing of this Release arising under the FEDERAL AGE
DISCRIMINATION IN EMPLOYMENT ACT OF 1967, AS AMENDED, and the applicable rules
and regulations promulgated thereunder ("ADEA").
3. Release of Unknown Claims. I understand that I am releasing
Claims pursuant to this Agreement that I may not know about, and that is my
intent. I expressly waive all rights that I might have under any law that is
intended to prevent unknown Claims from being released and I understand the
significance of doing so. In addition, I expressly acknowledge that the Release
under this Agreement is intended to include and does include in its effect,
without limitation, all Claims which I do not know or suspect to exist in my
favor at the time of execution of this Release and that this Release expressly
contemplates the extinguishment of all such Claims.
4. No Pending Litigation. I hereby represent and agree that I have
not filed, and will not file, any action, complaint, charge, grievance or
arbitration against any Released Party.
5. No Right to Commence any Legal Action. I will not commence or
join any legal action, which term includes, without limitation, any demand for
arbitration proceedings and any complaint to any federal, state or local agency,
court or other tribunal, to assert any Claim released by me under this Agreement
against a Released Party. If I commence or join any such legal action against a
Released Party, I will promptly indemnify such
Released Party for its reasonable costs and attorneys' fees incurred in
defending such action as well as any monetary judgment obtained by me against
any Released Party in such action.
6. Acknowledgment. By signing this Release, I hereby acknowledge and
confirm the following:
(a) Consultation with an Attorney. I was advised in writing by the
Company in connection with my termination of employment to consult with an
attorney of my choice prior to signing the Agreement and this Release and
to have such attorney explain to me the terms of the Agreement and this
Release, including, without limitation, the terms relating to my release of
claims arising under ADEA.
(b) Understand this Agreement. I have read the Agreement and this
Release carefully and completely and understand each of the terms thereof.
(c) Twenty-One Days to Consider. I was given not less than
twenty-one days to consider the terms of the Agreement and this Release and
to consult with an attorney of my choosing with respect thereto, and that
for a period of seven days following my signing of this Release, I have the
option to revoke this Release in accordance with the terms set forth below.
(d) Consideration. By signing this Release, I hereby acknowledge and
confirm that I am providing the Release and discharge set forth herein only
in exchange for consideration in addition to anything of value to which I
am already entitled.
7. Revocation. I have the right to revoke this Release during the
seven-day period (the "REVOCATION PERIOD") commencing immediately following the
date I sign and deliver this Release to the Company . The Revocation Period
shall expire at 5:00 p.m., New York time, on the last day of the Revocation
Period; PROVIDED, HOWEVER, that if such seventh day is not a business day, the
Revocation Period shall extend to 5:00 p.m. on the next succeeding business day.
In the event of any such revocation by me, the obligations of the Company to pay
the Severance Benefit pursuant to the Agreement shall terminate and be of no
further force and effect as of the date of such revocation. No such revocation
by me shall be effective unless it is in writing and signed by me and received
by a representative of the Company prior to the expiration of the Revocation
Period.
My signature below indicates my agreement with the terms and provisions
described above.
/s/ Xxxxx X. Xxxxxxx Xxxxx X Xxxxxxx
------------------------------
October 18, 2001
-----------------------
Date
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