EXHIBIT 10.15
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of the 27/th/
day of FEBRUARY, 1998, between CTC Communications Corp, a Massachusetts
Corporation, (the"Company"), which term shall include any successor corporation,
and XXXXXX X. XXXXX (the "Executive'').
W I T N E S S E T H:
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WHEREAS, the Executive has certain skills and experiences which will prove
beneficial to the Company in managing the finances of the Company and assisting
in the strategic planning and implementation of the Company's current and future
strategies; and
WHEREAS, the Company desires to employ the Executive, and the Executive desires
to be employed by the Company on the terms and subject to the considerations set
forth herein.
NOW, THEREFORE, in consideration of the mutual promises herein contained, the
parties agree as follows:
1. EMPLOYMENT:
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(a) Position. The Company hereby employs the Executive and the Executive
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hereby accepts such employment, on the terms and subject to the conditions
hereinafter set forth. Beginning on the Officer Election Date (as defined
in Section 2(c) hereof), the Executive shall be elected as an officer of
the Company and shall have the title and responsibilities of Executive Vice
President, Chief Financial Officer and Director of Corporate Development.
(b) Reporting and Duties. The Executive shall report directly to the Company's
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Chief Executive Officer ("CEO") or to the Company's Board of Directors (the
"Board"). The Executive shall be required to devote his full business time,
attention and effort to the Company's business and affairs and perform
diligently such duties as are customarily performed by executives in
similar positions with companies similar in character or size to the
Company, all subject to the direction of the CEO or the Board, together
with such other duties as may be reasonably requested from time to time by
the CEO or the Board, which duties shall be consistent with his positions
as set forth above. The Executive agrees to use all of his skills and
business judgment and render services to the best of his ability to serve
the interests of the Company. Subject to the terms of Section 9, nothing in
this Agreement shall preclude Executive from serving on community and civic
boards, participating in industry associations, or otherwise engaging in
other non-commercial activities which do not unreasonably interfere with
his duties to the Company. Notwithstanding the preceding sentence, the
Company acknowledges and agrees that the Executive shall be entitled to
continue participating in any current or future business ventures with his
spouse so long as such business ventures do not unreasonably interfere or
conflict with his duties to the Company.
(c) Support Services. The Executive shall be entitled to all of the
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administrative, operational and facility support customary for a similarly
situated executive. This support shall include, without limitation, a
suitably appointed private office, access to a secretary or administrative
assistant, direct access to a Bloomberg Financial Markets terminal, and
payment of or reimbursement for reasonable cellular telephone expenses,
expenses of the Executive maintaining his professional license and standing
and any and all other business expenses reasonably incurred on behalf of or
in the course of performing duties for the Company, all documented in
accordance with the expense reimbursement policies established from time to
time by the Company and in effect for other similarly situated executives.
The Executive agrees to provide such documentation of these expenses as may
be reasonably required.
2. TERM AND EFFECTIVE DATE:
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(a) Term. Unless earlier terminated as herein provided, the Executive's
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employment with the Company hereunder shall commence at the Effective
Date and shall end on the last day of the "Term". For purposes of this
Agreement, the "Term" of this Agreement shall mean an initial three
year period, plus any extensions made as provided in this Section 2.
On each anniversary of the Effective Date, the Term shall
automatically be extended for an additional year unless, not later
than ninety (90) days prior to any such anniversary, the Company or
the Executive shall have given notice not to extend the Term. For
purposes of this Agreement, the "Employment Period" (which in no event
shall extend beyond the Term) shall mean the period during which
Executive has an obligation to render services hereunder, as described
in Section 1(b) hereof, taking into account any Notice of Termination
(as defined in Section 7(a) hereof) which may be given by either the
Company or the Executive. Nothing in this Section shall limit the
right of the Company or the Executive to terminate the Executive's
employment hereunder on the terms and conditions set forth in Xxxxxxxx
0, 0, 0, xxx 0 xxxxxx.
(x) Effective Date of Employment. The Effective Date of Employment under
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this Agreement shall be February 27th, 1998 or as soon thereafter as
Executive is able to start using his best efforts (the "Effective Date
of Employment" or the "Effective Date").
(c) Officer Election Date. Beginning on April 1/st/, 1998 or as soon
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thereafter as is reasonably possible using the Company's best efforts,
the Company shall elect the Executive as an officer of the Company
with the title Executive Vice President, Chief Financial Officer, and
Director of Corporate Development. From the Effective Date of
Employment until April 1, 1998, the Executive shall be an employee,
but not an officer, of the Company.
(d) Leave of Absence. The Company acknowledges and agrees that the
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Executive shall have a leave of absence without pay in the
Spring/Summer of 1998 for approximately 10 weeks. The Executive agrees
to be reasonably available by phone during such leave of absence.
3. COMPENSATION AND BENEFITS:
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Throughout the Term the Company shall pay or provide, as the case may be,
to the Executive the compensation and other benefits and rights set forth
in this Section 3, and the additional compensation and benefits set forth
in Sections 8 and 10, as applicable.
(a) Base Salary. During the term hereof, the Company shall pay to the
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Executive a "Base Salary," payable in accordance with the Company's
usual pay practices for executive officers (and in any event no less
frequently than monthly), at a minimum rate of $150,000 per annum,
which shall be reviewed annually by the Company's Board and which may
be increased, but not decreased.
(b) Annual Bonus. Subject to the provisions of paragraph 8, the Executive
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shall receive a cash bonus for each fiscal year, or part thereof, that
he is employed by the Company. Such cash bonus in any given year
shall be conditioned upon the Executive having met certain annual
performance objectives stipulated by the Company's CEO or the Board
and communicated to the Executive in writing at least nine months
prior to the end of any given fiscal year and shall be payable within
30 days after the end of such fiscal year. The final amount of any
cash bonus in any given year shall be determined solely at the
discretion of the Board, provided, however, that the Executive's bonus
for any given fiscal year during the Term of this Agreement shall be a
minimum of $75,000.
(c) Stock Options. The Executive shall be entitled to participate, at a
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level appropriate to his positions with the Company, in any stock
option plan or stock-based compensation plan which the Company
maintains from time to time. The Company agrees that it will take
such actions as are
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necessary (including, without limitation, amendment of the Employees
Incentive Stock Option Plan, the 1985 Stock Option Plan, the 1993
Incentive Stock Option Plan, and/or the 1996 Stock
Option Plan (such existing plans as hereinafter referred to as the "Existing
Stock Option Plans") or create a new stock option plan as may be necessary) to
assure the following:
(i) The Executive is awarded effective as of the date of this
Agreement qualified incentive stock options to purchase 300,000 common
shares of the Company (the "Options"). Such Options shall have a ten
year term and the strike price shall be equal to 100% of the closing
per share price of the Company's common stock at the close of the
trading day on the date of this Agreement. The Company acknowledges
and agrees that it will waive any provisions in any existing or newly
created incentive stock option plans that the Executive be an employee
of the Company for a minimum of six months prior to granting such
Options. The Options shall vest in equal 25% increments according to
the following schedule:
Option Shares Represented Vesting Date
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75,000 April 1, 1998
75,000 March 31, 1999
75,000 March 31, 2000
75,000 March 31, 2001
The Company acknowledges that the award of the Options to purchase the
above 300,000 common shares is based upon the premise that: (a) the
Company has issued and outstanding approximately ten (10) million
common shares as of the date hereof; (b) total common shares
purchasable with respect to options available under the Company's
Existing Stock Option Plans do not exceed three (3) million common
shares as of the date hereof; and (c) there are no other equity or
equity-linked securities (including, without limitation, convertible
notes, convertible preferred stock, warrants, options, or any other
type of security that consists of any type of right to purchase common
shares; such equity or equity-link securities hereinafter referred to
as "Equity Securities") outstanding as of the date hereof.
(ii) To the extent a change of control provision is not already
provided for in any existing or newly created incentive stock option
plans in a manner which is satisfactory to the Executive and
consistent with the terms of this Agreement, the Company shall modify
such existing or newly created stock option plans such that all
Options or Future Stock Benefits (as defined in Section 8(b) hereof)
held by the Executive shall become fully vested and exercisable and
all restrictions upon any restricted shares held by the Executive will
lapse immediately prior to a Change of Control as defined in Section 4
of this Agreement.
(iii) That the Company's Existing Stock Option Plans or future stock
option plans contain certain antidilution provisions that stipulate
that any event which effects the common shares of the Company in such
a way that an adjustment of the Options or Future Stock Benefits is
appropriate in order to prevent dilution of the rights of the
Executive under the Options or Future Stock Benefits (including,
without limitation, any dividend or other distribution (whether in
cash or in kind), recapitalization, stock split, reverse split,
reorganization, merger, consolidation, spin-off, combination,
repurchase, or share exchange, or other similar corporate transaction
or event), the Company shall make appropriate equitable adjustments,
which may include, without limitation, adjustments to any or all of
the number and kind of common shares of stock of the Company (or other
securities) which may thereafter be issued upon exercise of the then
outstanding Options or Future Stock Benefits and adjustments to the
exercise price of all such Options and Future Stock Benefits. To the
extent the Company's Existing Stock Option Plans do not contain such
antidilution provisions or a reasonable proxy thereto, the Company
shall work with the Executive to find a mutually agreeable solution.
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(iv) Each grant of Options or Future Stock Benefits shall be evidenced
by a separate Option Grant Agreement which shall be satisfactory to
the Executive and executed within thirty (30) days of (a) the
Effective Date of this Agreement in the case of the Options or (b) the
grant date in the case of Future Stock Benefits.
(c) Relocation Expense. If the Executive decides to permanently relocate
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himself and his family to the Boston, MA area or such other area as
mutually agreed upon with the Company (the "Permanent Relocation"),
the Company shall reimburse the Executive for all reasonable
relocation expenses, up to $30,000, incurred with respect to the
relocation of the Executive and his family. Notwithstanding the above,
the Company shall reimburse the Executive for all reasonable commuting
expenses until a Permanent Relocation occurs. The Company shall also
reimburse the Executive for all reasonable expenses which he may incur
with respect to establishing and maintaining temporary living quarters
in the Boston area, or such other area as mutually agreed upon, until
a Permanent Relocation occurs. If any such relocation, commuting, or
living quarters expenses are treated as taxable income to the
Executive, the Company shall make an additional payment to the
Executive which shall make him whole with respect to the imposition of
any federal, state, or local income tax on such taxable income.
(d) Insurance. Beginning on the Effective Date, the Company shall provide
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the Executive such life, medical, hospitalization, disability and
dental insurance for the Executive, and as appropriate for, his spouse
and eligible family members, as is in accordance with the Company's
policy for seniors officers of the Company. The Company acknowledges
and agrees that it will waive any waiting period for new employees.
(e) Retirement and Other Benefit Plans. The Executive shall be eligible
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to participate in all retirement and other benefit plans of the
Company generally available from time to time to employees and for
senior executives of the Company and for which the Executive qualifies
under the terms thereof, without regard to his tenure at the Company.
The Executive shall also be entitled to participate in any equity or
other employee benefit plans and other fringe benefits that are
generally available to executive officers or directors from time to
time, as distinguished from general management, of the Company. The
Executive's participation in and benefits under any such plan shall be
on the terms and subject to the conditions specified in the governing
document of the particular plan.
4. CHANGE OF CONTROL:
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(a) Definition. For the purposes of this Agreement, a "Change of
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Control" shall be deemed to have occurred if any of the events set
forth in any of the following paragraphs (i) - (iv) shall have
occurred:
(i) if any Person (as defined in Section 4b hereof) or Group is or
becomes the Beneficial Owner (as defined in Section 4c hereof),
directly or indirectly, of securities of the Company representing
thirty percent (30%) or more of the combined voting power of the
Company's then outstanding voting securities, except with respect to
current officers or directors.
(ii) if during any period of two consecutive years, the following
individuals cease for any reason to constitute a majority of the
number of directors then serving: individuals who at the beginning of
such period constitute the Board and any new director (other than a
director whose initial assumption of office is in connection with an
actual or threatened election contest, including but not limited to a
consent solicitation, relating to the election of directors of the
Company) whose appointment or election by the Board or nomination for
election by the Company's shareholders was approved or recommended by
a vote of at least two thirds (2/3) of the directors then still in
office who either were directors at the beginning of such period or
whose appointment, election or nomination for election was previously
so approved or recommended; or
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(iii) if the shareholders of the Company approve a merger or
consolidation of the Company with any other corporation or the
issuance of voting securities of the Company in connection with a
merger or consolidation of the Company (or any direct or indirect
subsidiary of the Company) pursuant to the applicable stock exchange
requirements, other than (x) a merger or consolidation which would
result in the voting securities of the Company outstanding immediately
prior to such merger or consolidation continuing to represent (either
by remaining outstanding or by being converted into voting securities
of the surviving entity or any parent thereof) at least fifty percent
(50%) of the combined voting power of the securities of the Company or
such surviving entity or any parent thereof outstanding immediately
after such merger or consolidation, or (y) a merger or consolidation
effected to implement a recapitalization of the Company (or similar
transaction) in which no Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company representing
thirty percent (30%) or more of the combined voting power of the
Company's then outstanding securities
(iv) if the shareholders of the Company approve a plan of complete
liquidation or dissolution of the Company or an agreement for the
sale or disposition by the Company of all or substantially all of
the Company's assets.
(b) For purposes of this Agreement, "Person" and "Group" shall have the
meaning given in Section 3(a)(9) of the Securities Exchange Act of
1934, as amended from time to time (the "Exchange Act"), as modified
and used in Sections 13(d) and 14(d) thereof, except that such terms
shall not include (i) the Company or any of its subsidiaries, (ii) a
trustee or other fiduciary holding securities under an employee
benefit plan of the Company or any of its affiliates, or (iii) an
underwriter temporarily holding securities pursuant to an offering of
such securities.
(c) For purposes of this Agreement, "Beneficial Owner" shall have the
meaning set forth in Rule 13d-3 under the Exchange Act.
(d) In the event of a Change of Control, all unvested Options (as defined
in Section 3(c)(i) hereof) Future Stock Benefits (as defined in
Section 8(b) hereof) shall immediately vest.
5. TERMINATION BY THE COMPANY:
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The Executive's employment hereunder may be terminated as follows:
(a) Death. The Executive's employment shall terminate upon his death.
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Upon such termination, the Executive's estate or designated
beneficiary, as the case may be, shall become entitled to the payments
provided in Section 8(b) hereof.
(b) Permanent Disability. If, as a result of the Executive's incapacity
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due to physical or mental illness (as determined by a medical doctor
mutually agreed to by the Executive or his legal representative and
the Company), the Executive shall have been absent from his duties
hereunder on a full-time basis for either one hundred eighty (180)
consecutive days or for an aggregate two hundred ten (210) days within
a consecutive 12 month period and, within (30) days after Notice of
Termination is given, shall not have returned to the performance of
his duties hereunder on a full-time basis ("Permanent Disability"),
the Company may terminate the Executive's employment for Permanent
Disability. Upon such a termination, the Executive shall become
entitled to the payments provided in Section 8(c) hereof.
(c) Cause. The Company may terminate the Executive's employment hereunder
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for "Cause" (as defined in this Section 5(c)). Upon such a
termination, the Executive shall become entitled to the payments
provided in Section 8(d) hereof. For purposes of this Agreement, the
Company shall have "Cause" to terminate the Executive's employment
hereunder upon:
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(i) the willful (or grossly negligent) and continued failure by the
Executive to substantially perform his duties hereunder (other than
any such failure resulting from the Executive's incapacity due to
physical or mental illness or any such actual or anticipated failure
after the Executive has delivered a "Notice of Termination for Good
Reason" as defined in Section 6(a) hereof, or during a "Window Period"
as defined in Section 6(b) hereof) after demand for substantial
performance is delivered by the Company that specifically identifies
the manner in which the Company believes the Executive has not
substantially performed his duties; or
(ii) the active participation by the Executive in an act or series of
acts of willful malfeasance or gross misconduct, recklessness or gross
negligence which a reasonable person would expect to have a material
adverse effect on the Company; or
(iii) any breach by the Executive of any of the provisions of Section
9 hereof; or
(iv) the Executive's being convicted of, or pleading guilty to, a
felony.
For purposes of this paragraph, no act, or failure to act, on the
Executive's part shall be considered "willful" unless done or omitted
to be done, by him not in good faith and without reasonable belief
that his action or omission was in the best interest of the Company.
Further, unless the Executive has been convicted of, or pleaded guilty
to, a felony, the Executive shall not be deemed to have been
terminated without (1) reasonable notice to the Executive setting
forth the reasons for the Company's intention to terminate for Cause,
(2) an opportunity for the Executive, together with his counsel, to be
heard before the Board, and (3) delivery to the Executive of a Notice
of Termination from the Board finding that, in the good faith opinion
of a majority of the Board, the Executive was guilty of conduct set
forth above in clauses (i), (ii), or (iii) of this Section 6(c), and
specifying the particulars thereof in reasonable detail.
(d) Without Cause. The Company may terminate the Executive's employment
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hereunder without Cause at any time. Upon such a termination, the
Executive shall become entitled to the payments and benefits provided
in section 8(e) hereof.
6. TERMINATION BY THE EXECUTIVE:
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(a) Termination for Good Reason. The Executive may terminate his
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employment hereunder at anytime for "Good Reason". Upon such
Termination For Good Reason, the Executive shall become entitled to
the payments and benefits provided in Section 8(e) hereof. For the
purposes of this Agreement, the definition of "Good Reason" shall
include: (i) any significant diminution in Executive's title, duties
and responsibilities or such title, duties and responsibilities are
otherwise diminished such that they no longer reflect the title,
duties and responsibilities customary for a Chief Financial Officer
and/or Director of Corporate Development, which diminution is not
cured within thirty (30) days after notice from the Executive, (ii)
the Company (or any successor thereto) hires or appoints a person,
other than Executive, to the position (or functional equivalent,
regardless of actual title) of Chief Financial Officer and/or Director
of Corporate Development, (iii) any failure of the Company to pay any
compensation to the Executive within thirty (30) days of the
Executive's notice to the Company that payment is overdue; and/or (iv)
the Company's breach of a material term or condition of this
Agreement, and the Company's failure to correct such breach within
thirty (30) days after the Executive's notice thereof (specifying in
reasonable detail the particulars of such noncompliance).
(b) Termination During a Window Period. The Executive may terminate his
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employment hereunder without Good Reason by giving a Notice of
Termination during a "Window Period", which for purposes of this
Agreement, shall mean the sixty (60) day period beginning with the
first day following the ninety (90) day period which immediately
follows a Change of Control. Upon a Window Period termination, the
Executive shall become entitled to the payments and benefits provided
in Section 8(e) hereof.
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(c) Termination Without Good Reason Outside a Window Period. The
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Executive may terminate his employment hereunder without Good Reason
and outside of a Window Period, upon giving thirty (30) days written
notice to the Company. In the event of such a termination, the
Executive shall comply with any reasonable request of the Company to
assist in providing for an orderly transition of authority, but such
assistance shall not delay the Executive's termination of employment
longer than sixty (60) days beyond the giving of the Executive's
Notice of Termination. Upon such a termination, the Executive shall
become entitled to the payments provided in Section 8(f) hereof.
7. TERMINATION NOTICES, TIMING, AND DISPUTES:
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(a) Notice of Termination. Any purported termination of the Executive's
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employment (other than termination pursuant to Section 5(a) hereof)
shall be communicated by written Notice of Termination to the other
party hereto in accordance with Section 11(h) hereof. For purposes of
this Agreement, a "Notice of Termination" shall mean a notice that
shall indicate the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the
Executive's employment under the provision so indicated.
(b) Date of Termination. For purposes of this Agreement, "Date of
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Termination" shall mean the following: (i) if the Executive's
employment is terminated by his death, the date of his death; (ii) if
the Executive's employment is terminated pursuant to Section 5(b) or
5(d) hereof, thirty (30) days after the Notice of Termination is
given; (iii) if the Executive's employment is terminated pursuant to
Section 5(c) hereof, the date specified in the Notice of Termination;
(iv) if the Executive's employment is terminated pursuant to Section
6(a) or 6(b) hereof, thirty (30) days after the Notice of Termination
is given; and (v) if the Executive's employment is terminated
pursuant to Section 6(c) hereof, the date determined in accordance
with said Section.
(c) Dispute Concerning Termination. If within fifteen (15) days after any
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Notice of Termination is given, or, if later, prior to the Date of
Termination (as determined without regard to this Section 7(c)), the
party receiving such Notice of Termination notifies the other party
that a dispute exists concerning the termination, the Date of
Termination shall be extended until the earlier to occur of (i) the
date on which the Term ends or (ii) the date on which the dispute is
finally resolved, either by mutual written agreement of the parties or
by the final determination of an arbitration panel in accordance with
Section 11(g), which is not subject to appeal; provided, however, that
the Date of Termination shall be extended by a notice of dispute given
by the Executive only if such notice is given in good faith and the
Executive pursues the resolution of such dispute with reasonable
diligence.
(d) Compensation During Dispute. Except in the event of Termination for
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Cause by the Company, I if the Date of Termination is extended in
accordance with Section 7(c) hereof, the Company shall continue to pay
the Executive the full compensation in effect when the notice giving
rise to the dispute was given (including, but not limited to, Base
Salary and Annual Bonus) and continue the Executive as a participant
in all compensation, benefit and insurance plans in which the
Executive was participating when the notice giving rise to the dispute
was given, until the Date of Termination, as determined in accordance
with Section 7(c) hereof. Amounts paid under this Section 7(d) are in
addition to all other amounts due under this Agreement and shall not
be offset against or reduce any other amounts due under this
Agreement.
8. COMPENSATION DURING DISABILITY OR UPON TERMINATION:
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(a) Disability Period. During any period during the Term hereof that the
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Executive fails to perform his duties hereunder as a result of
incapacity due to physical or mental illness ("Disability Period"),
the Executive shall continue to (i) receive his full Base Salary, (ii)
remain eligible to receive an Annual Bonus under Section 3(b) hereof,
and (iii) participate in the plans and
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arrangements described in Section 3(e) and 3(f) hereof (except to the
extent such participation is not permitted under the terms of such
plans and arrangements).
(b) Termination By Death: If the Executive's employment is terminated by
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death, the Executive's estate shall be entitled to receive as soon as
is practicable after the date of death: (i) any accrued but unpaid
salary and other benefits up to and including the date of Executive's
death, and (ii) life insurance benefits pursuant to any life insurance
purchased by the Company for the benefit of the Executive. In
addition, any unvested Options and any other unvested options,
restricted stock or stock appreciation rights which may be granted
after the date of this Agreement (such future options, restricted
stock or stock appreciation rights hereinafter being referred to as
"Future Stock Benefits") shall vest immediately.
(c) Termination For Permanent Disability: If the Executive's employment
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is terminated by the Company for Permanent Disability, the Executive
shall be entitled to receive any accrued but unpaid salary and other
benefits up to and including the date of the Executive's termination.
In addition, any unvested Options pursuant to Section 3(c) and any
other unvested Future Stock Benefits shall vest immediately.
(d) Termination for Cause. If the Executive's employment is terminated by
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the Company for Cause, the Company shall not have any other or further
obligations to the Executive under this Agreement except (i) as to
that portion of any unpaid Base Salary and other benefits accrued and
earned under this Agreement to the date of termination, and (ii) as
may be provided in accordance with the terms of retirement and other
benefit plans pursuant to Section 3(e) and 3(f).
(e) Termination Without Cause, Termination For Good Reason, and
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Termination During a Window Period. If the Executive's employment
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hereunder is terminated (1) by the Company without Cause, (2) by the
Executive for Good Reason, or (3) by the Executive during a Window
Period, then:
(i) As soon as practicable after the Date of Termination, but no
later than ten (10) days after such date, the Company shall pay to the
Executive any amounts earned, accrued or owing the Executive under the
terms hereunder for services to the Date of Termination.
(ii) As soon as practicable after the Date of Termination, but no
later than ten (10) days after such date, the Company shall pay to the
Executive a lump sum amount, in cash, equal to the sum of (A) any
Annual Bonus which has been allocated or awarded to the Executive, but
not yet paid, for a completed fiscal year preceding the Date of
Termination under any Annual Bonus plan, and (B) a pro rata portion to
the Date of Termination of the Annual Bonus for the year in which the
Date of Termination occurs, assuming the Executive would have received
an Annual Bonus equivalent to the highest previous Annual Bonus which
the Executive received in any given year during the Employment Period.
In the event such termination occurs in the first year of employment,
the Executive's pro rata Annual Bonus will be based on a full year
bonus of $75,000.
(iii) In lieu of any further salary or bonus payments to the
Executive for periods subsequent to the Date of Termination, the
Company shall pay as a severance payment to the Executive, within ten
(10) days immediately following the Date of Termination, a lump sum
amount, in cash, equal to the sum of: (A) two year's Base Salary at
the Executive's highest annual Base Salary rate in effect during the
Employment Period and (B) an amount equivalent to twice the highest
Annual Bonus that the Executive received in any given year during the
Employment Period or $150,000, whichever is higher.
(iv) The Company shall maintain in full force and effect, for the
continued benefit of the Executive until the later of (x) the second
anniversary of the Date of Termination or (y) the end of the Term,
each "employee welfare benefit plan" (as defined in Section 3(1) of
the Employee
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Retirement Income Security Act of 1974, as amended ("ERISA")), other
than any disability plan, in which the Executive was entitled to
participate immediately prior to the Date of Termination, provided
that the Executive's continued participation is possible under the
general terms and provisions of such plans. In the event that the
Executive's participation in any such plan is barred, the Company
shall arrange to provide the Executive with benefits substantially
similar to those which the Executive would otherwise have been
entitled to receive under the plan from which his continued
participation is barred;
(v) Any unvested Options or Future Stock Benefits shall, to the
extent not already vested, vest immediately upon the Date of
Termination;
(vi) The Company shall have no additional obligations to the Executive
under this Agreement except to the extent provided in Sections 3(e)
and 3(f).
(f) Termination Without Cause Outside a Window Period by the Executive. If
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the Executive's employment is terminated by the Executive without
Cause outside of a Window Period, the Company shall not have any other
or further obligations to the Executive under this Agreement except
(i) as to that portion of any unpaid Base Salary and other benefits
accrued and earned under this Agreement to the date of termination,
and (ii) as may be provided in accordance with the terms of retirement
and other benefit plans pursuant to Section 3(e) and 3(f). In
addition, the pro rata portion of any unvested Options or Future Stock
Benefits that were scheduled to vest in the year of the Executive's
termination shall vest immediately. Such pro rata amount will be
determined in each such case for the Options and Future Stock Benefits
by taking the number of Options or Future Stock Benefits (whichever
the case may be) which were scheduled to vest on the next succeeding
vesting date after the Date of Termination and multiplying each by a
fraction, the numerator of which is the number of days that have
elapsed from the vesting date immediately preceding the Date of
Termination (or the grant date) to the Date of Termination, and the
denominator of which shall be the number of days scheduled between the
most recent vesting date preceding the Date of Termination (or the
grant date) and the vesting date first succeeding the Date of
Termination (such formula hereinafter referred to as the "Pro Rata
Option Formula").
(g) Mitigation. The Executive shall not be required to mitigate amounts
----------
payable pursuant to Section 8 hereof by seeking employment or
otherwise, but any payments made or benefits provided pursuant to
Section 8(e)(iv) hereof shall be offset by any similar payments or
benefits made available without cost to the Executive from any
subsequent employment during the Term (determined immediately prior to
such termination of employment.)
9. CONFIDENTIAL INFORMATION:
------------------------
(a) Unauthorized Disclosure. The Executive shall not, either during the
-----------------------
Executive's employment hereunder or thereafter, disclose, divulge,
discuss, copy or otherwise use or suffer to be used in any manner,
other than in accordance with the Executive's duties hereunder, any
confidential or proprietary information relating to the Company's
business, prospects, finances, operations, customers, products,
services, rates, properties or otherwise to its particular business or
other trade secrets of the Company, it being acknowledged by the
Executive that all such information regarding the business of the
Company compiled or obtained by, or furnished to, the Executive while
the Executive shall have been employed by or associated with the
Company is confidential and/or proprietary information and the
Company's exclusive property; provided, however, that the foregoing
restrictions shall not apply to the extent that such information:
(i) is clearly obtainable in the public domain; or
(ii) becomes obtainable in the public domain, except by reason of the
breach by the Executive of the terms hereof; or
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(iii) is required to be disclosed by rule of law or by order of a
court or governmental body or agency.
(b) The Executive agrees and understands that the remedy at law for any
breach by him of this Section 9 will be inadequate and that the
damages flowing from such breach are not readily susceptible to being
measured in monetary terms. Accordingly, it is acknowledged that the
Company shall be entitled to seek immediate injunctive relief.
Nothing in this Section 9 shall be deemed to limit the Company's
remedies at law or in equity for any breach by the Executive of any of
the provisions of this Section 9 which may be pursued or availed of by
the Company.
(c) The Executive acknowledges that the Executive's obligations under this
Section 9 shall survive regardless of whether the Executive's
employment by the Company is terminated, voluntarily or involuntarily,
by the Company or the Executive, with Cause or without Cause.
10. EXCISE TAX GROSS-UP PAYMENT:
---------------------------
(a) Notwithstanding anything herein to the contrary, if it is determined
that any payment and/or other compensation under the terms of this
Agreement or otherwise would be subject to the excise tax imposed by
Section 4999 and/or Section 280 of the Internal Revenue Code (the
"Code") or any interest or penalties should be assessed with respect
to such excise tax (such excise tax, together with any interest or
penalties thereon, is herein referred to as an "Excise Tax"), then
Executive shall be entitled to an additional cash payment (a "Gross-Up
Payment") in an amount that will place Executive in the same after-tax
economic position that Executive would have enjoyed if the Excise Tax
had not applied to such payment and/or other compensation. The amount
of the Gross-Up Payment shall be determined by an accounting firm
selected by the Executive in his sole discretion (the "Accounting
Firm") in accordance with such formula as the Accounting Firm deems
appropriate. No Gross-Up Payments shall be payable hereunder if the
Accounting Firm determines that the payments and/or other compensation
are not subject to an Excise Tax. The Accounting Firm shall be paid
by the Company (or any successor thereto) for services performed
hereunder.
(b) All determinations required under this Section 10, including whether a
Gross-Up Payment is required, the amount of the payment and/or other
compensation constituting excess parachute payments, and the amount of
the Gross-Up Payment, shall be made by the Accounting Firm, which
shall provide detailed supporting calculations to both Executive and
the Company within fifteen (15) days of any date reasonably requested
by the Executive on which a determination under this Section 10 is
necessary or advisable. The Company shall pay to the Executive, in
cash, subject to any applicable tax withholding requirements, the
Gross-Up Payment within fifteen (15) days of the receipt of the
Accounting Firm's determination. If the Accounting Firm determines
that no Excise Tax is payable by Executive, the Company agrees that
the Accounting Firm shall provide the Executive with an opinion that
the Accounting Firm, having substantial authority under the Code and
other tax regulations and based on its judgement and an assessment of
the facts, does not believe the Executive will have to report an
Excise Tax on the Executive's federal income tax return. Any
determination by the Accounting Firm shall be binding upon the
Executive and the Company (or any successor thereto).
(c) In the event that it is finally determined by the Internal Revenue
Service on audit or in a judicial proceeding that the Executive is
liable for any Excise Tax in an amount other than that determined by
the Accounting Firm, the Gross-Up Payment shall be recomputed by the
Accounting Firm based on the Excise Tax that is finally determined to
be due. The Executive shall refund any resulting overpayment
(together with interest at the prevailing short-term applicable
federal rate under section 1274 of the Code) and the payer of the
original Gross-Up Payment shall pay to the Executive any resulting
shortfall (together with interest at the short-term applicable federal
rate under section 1274 of the Code), promptly following such
recomputation. The Company shall indemnify the Executive against any
costs and expenses (including the reasonable fees of
-10-
attorneys and accountants) incurred in connection with any audit or
examination of, or legal proceedings in connection with, his tax
return for any taxable year for which an Excise Tax is, or is alleged
to be, due, to the extent attributable to the issue of such Excise
Tax.
MISCELLANEOUS:
-------------
(a) The Executive represents and warrants that he is not a party to any
agreement, contract or understanding, whether employment or otherwise,
which would restrict or prohibit him from undertaking or performing
employment in accordance with the terms and conditions of this
Agreement.
(b) The provisions of this Agreement are severable and if any one or more
provisions may be determined to be illegal or otherwise unenforceable,
in whole or in part, the remaining provisions and any partially
unenforceable provision to the extent enforceable in any jurisdiction
nevertheless shall be binding and enforceable.
(c) At all times during and after Executive's employment and the date of
this Agreement, the Company shall indemnify the Executive to the
fullest extent permitted by law for all expenses, costs, liabilities
and legal fees which the Executive may incur in the discharge of his
duties hereunder and shall at all times maintain appropriate
provisions in its articles of incorporation and bylaws which mandate
that the Company provide such indemnification. The Company shall also
provide, for the benefit of the Executive, Directors and Officers'
liability insurance in amounts which are customary for directors and
officers of other public companies similar in character or size to the
Company. Any termination of the Executive's employment or of this
Agreement shall have no effect on the continuing operation of this
Section 11(c).
(d) The Company shall reimburse Executive for reasonable fees and expenses
incurred in connection with the negotiation and execution of this
Agreement, including, without limitation, the reasonable fees and
expenses of his attorneys.
(e) The Company will require any purchaser of all or substantially all of
the business and/or assets of the Company, by agreement in form and
substance satisfactory to the Executive, to expressly assume and agree
to perform this Agreement in the same manner and to the same extent
that the Company would be required to perform it if no such succession
had taken place. As used in this Agreement, "Company" shall mean the
Company as herein before defined and any successor to its business
and/or assets as aforesaid which executes and delivers the agreement
provided for in this Section 11(e) or which otherwise becomes bound by
all the terms and provisions of this Agreement by operation of law.
(f) This Agreement and all rights of the Executive hereunder shall inure
to the benefit of and be enforceable by the Executive's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees, and legatees. If the Executive should die
while any amounts would still be payable to him hereunder if he had
continued to live, all such amounts unless otherwise provided herein,
shall be paid in accordance with terms of this Agreement to the
Executive's devisee, legatee, or other designee or, if there be no
such designee, to the Executive's estate.
(g) Any controversy or claim arising out of or relating to this Agreement,
or the breach thereof, shall be settled by arbitration in accordance
with the Commercial Arbitration Rules of the American Arbitration
Association then pertaining in the metropolitan Boston, MA area, and
judgment upon the award rendered by the arbitrator or arbitrators may
be entered in any court having jurisdiction thereof. The arbitrator
or arbitrators shall be deemed to possess the powers to issue
mandatory orders and restraining orders in connection with such
arbitration. The Company (or any successor thereto) and the Executive
each agree to use their best efforts to begin the arbitration process
-11-
within three months of any notification from the other party
requesting arbitration to settle a dispute. The Company (or any
successor thereto) shall pay all costs of any such proceeding.
(h) All notices and other communications required or permitted under this
Agreement shall be in writing, and shall be deemed properly given if
delivered personally, mailed by registered or certified mail in the
United States mail, postage prepaid, return receipt requested, sent by
facsimile, or sent by Express Mail, Federal Express or nationally
recognized express delivery service, as follows:
If to the Company or the Board:
CTC Communications Corp.
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Chief Executive Officer
Fax Number: (000) 000-0000
If to the Executive:
Xxxxxx X. Xxxxx
000-X Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Notice given by hand, certified or registered mail, or by Express
Mail, Federal Express or other such express delivery service, shall be
effective upon actual receipt. Notice given by facsimile transmission
shall be effective upon telephonic confirmation of receipt by the
party to whom it is addressed. All notices by facsimile transmission
shall be followed up promptly after transmission by delivering an
original copy by hand, certified or registered mail, or by Express
Mail, Federal Express or other such delivery service. Any party may
change any address to which notice is to be given to it by giving
notice as provided above of such change of address.
(i) The failure of either party to enforce any provision or provisions of
this Agreement shall not in any way be construed as a waiver of any
such provision or provisions as to any future violations thereof, nor
prevent that party thereafter from enforcing each and every other
provision of this Agreement. The rights granted the parties herein
are cumulative and the waiver of any single remedy shall constitute a
waiver of such party's right to assert all other legal remedies
available to it under the circumstances.
(j) This Agreement supersedes all prior agreements and understandings
between the parties and may not be modified or terminated orally. No
modification or attempted waiver shall be valid unless in writing and
signed by the party against whom the same is sought to be enforced.
-12-
(k) This Agreement shall be governed by, and construed in accordance with
the provisions of, the law of the Commonwealth of Massachusetts,
without reference to provisions that refer a matter to the law of any
other jurisdiction. Each party hereto hereby irrevocably submits
itself to the non-exclusive personal jurisdiction of the federal and
state courts sitting in Massachusetts; accordingly, subject to the
provisions for arbitration provided in Section 11(g), any justiciable
matters involving the Company and the Executive with respect to this
Agreement may be adjudicated only in a federal or state court sitting
in Massachusetts.
(l) All payments required to be made by the Company hereunder to the
Executive shall be subject to the withholding of such amounts relating
to taxes and other government assessments as the Company may
reasonably determine it should withhold pursuant to any applicable
law, rule or regulation.
(m) Captions and section headings used herein are for convenience and are
not a part of this Agreement and shall not be used in construing it.
(n) Where necessary or appropriate to the meaning hereof, the singular and
plural shall be deemed to include each other, and the masculine,
feminine and neuter shall be deemed to include each other.
(o) This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when
so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an
executed counterpart of this Agreement by telecopier shall be
effective as delivery of a manually executed counterpart of this
Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the day and
year first set forth above.
CTC COMMUNICATIONS CORP.:
By: /s/ Xxxxxx X. Xxxxxxxxxxxx
_____________________________________
Xxxxxx X. Xxxxxxxxxxxx
Chairman and Chief Executive Officer
EXECUTIVE:
By: /s/ Xxxxxx X. Xxxxx
___________________________________
Xxxxxx X. Xxxxx
Address:
000-X Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
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