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EXHIBIT 10.8
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is made
and entered into effective as of the 22nd day of June, 2001, by and between HIGH
SPEED ACCESS CORP., a Delaware corporation (the "Company"), and XXXXXX X.
X'XXXXX, an individual ("Executive").
RECITAL:
WHEREAS, the Company and Executive are parties to an Employment
Agreement dated as of November 10, 2000 (the "Original Agreement"); and
WHEREAS, the Company and Executive desire to amend and restate in its
entirety the Original Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is agreed by and between the
parties hereto as follows:
1. EMPLOYMENT. The Company hereby employs Executive and Executive
accepts employment by the Company and agrees to serve the Company, upon the
terms and conditions hereinafter set forth.
2. DUTIES. Executive shall be employed by the Company as its President
and Chief Executive Officer. Executive's duties will be commensurate with those
customarily performed by one with such titles and positions at a company
similarly situated to the Company. So long as he is employed hereunder,
Executive agrees to devote his full business time and energy to the business and
affairs of the Company, to perform his duties hereunder to the best of his
ability and at a level of competency consistent with the position occupied, to
act on all matters in a manner he reasonably believes to be in and not opposed
to the best interests of the Company, to use his best efforts, skill and ability
to promote the profitable growth of the Company, and to perform such other
duties, consistent with duties customarily performed by one with such title and
position at a company similarly situated to the Company, as may be assigned to
him by the Company's Chairman or by the Company's Board of Directors (the
"Board") from time to time.
3. COMPENSATION AND BENEFITS. For all services rendered by Executive,
the Company shall pay compensation and provide benefits to Executive as follows:
A. BASE SALARY. The Company shall pay Executive a base salary of
$41,667 per month commencing on October 1, 2000. Such base salary, together with
any increases the Board may grant from time to time, is referred to in this
Agreement as "Base Salary." The Base Salary shall be subject to annual review by
the Compensation Committee of the Board. Such Base Salary
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shall be subject to applicable tax withholding and shall be paid in accordance
with normal Company payroll practices.
B. CASH BONUSES. Pursuant to the Original Agreement, Executive
received a cash bonus of $250,000 on October 1, 2000 and a cash bonus of
$250,000 in April 2001. In each succeeding year during which Executive shall be
employed by the Company, Executive shall be entitled to receive a cash bonus
(the "Incentive Bonus") in an amount up to fifty percent (50%) of Executive's
then Base Salary based upon Executive's and the Company's achievement of
specific predetermined goals concerning the financial performance of the Company
during the Company's preceding fiscal year, as established annually by the Board
or the compensation committee thereof, after consultation with Executive. The
Incentive Bonus, if payable, shall be paid to Executive within 90 days following
the end of the fiscal year of the Company; provided, however, if Executive's
employment with the Company is terminated on or before the date such Incentive
Bonus is payable, such Incentive Bonus shall not be payable to Executive, except
as provided in Section 5 of this Agreement.
C. BUSINESS EXPENSES. The Company shall reimburse Executive for
his reasonable direct out-of-pocket ordinary and necessary expenses, if any,
incurred by Executive in the performance of his services hereunder and for which
Executive properly accounts in accordance with the Company's regulations and
procedures in effect from time to time.
D. VACATION. Executive shall be entitled to four (4) weeks paid
vacation during each twelve (12) month period of Executive's employment with the
Company. Executive shall be entitled to carry over unused vacation from one year
to the next succeeding year.
E. LIFE INSURANCE. The Company shall purchase and maintain, so
long as Executive is employed with the Company, a term life insurance policy on
the life of Executive in the amount of Two Million Dollars ($2,000,000), which
policy shall name Executive's spouse or estate, as beneficiary. At the
termination of Executive's employment, Executive shall have the right to elect
to have the Company assign the term life insurance policy to Executive. Should
the Executive exercise the right to assign, Executive shall thereafter be
responsible for all premium payments under the policy.
F. REIMBURSEMENT OF CERTAIN EXPENSES. The Company shall reimburse
Executive up to Five Thousand Dollars ($5,000) per year for financial and tax
planning expenses incurred by Executive for which Executive properly accounts in
accordance with the Company's regulations and procedures in effect from time to
time.
G. ADDITIONAL BENEFITS. Executive shall be entitled to
participate, on the same terms and conditions as other executive officers of the
Company generally, in any and all employee retirement, medical, life and
disability insurance, and other benefits plans and perquisites as may be
established and in effect from time to time and made available to executive
officers and/or employees of the Company.
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H. OPTION GRANTS. Pursuant to the Original Agreement and the 1999
Agreement (as defined in Section 10.C hereof) Executive has received options
under the Company's 1999 Stock Option Plan (the "Plan") to purchase 850,000
shares of the Company's common stock ("Common Stock") at an exercise price of
$2.88 per share and to purchase 750,000 shares of Common Stock at an exercise
price of $17.63 per share. Subject to Executive's continued employment with the
Company, Executive will receive options under the Plan to purchase 100,000
shares of Common Stock (as adjusted for any stock splits, stock dividends,
recapitalizations or the like) on each of October 1, 2001 and October 1, 2002.
Each option granted to Executive under this Section 3.H shall have an exercise
price equal to the fair market value per share of the Common Stock on the date
of grant as determined under the Plan. The option grants made to Executive
hereunder will be made under and subject to the terms of the Plan and will vest
in accordance with the terms of the Plan. To the extent any of the options
granted to Executive hereby can, by the terms set forth herein and in the Plan,
qualify as incentive stock options under the provisions of the Internal Revenue
Code of 1986, as amended (the "Code"), Executive and the Company intend that the
same shall be treated as incentive stock options, and to the extent any or all
of the options cannot qualify as incentive stock options under the Code,
Executive and the Company intend that the same shall be treated as nonstatutory
options.
I. RESTRICTED STOCK GRANT. Pursuant to the Original Agreement,
Executive received 200,000 shares of restricted stock of the Company. Subject to
the receipt of any necessary approvals by the shareholders of the Company, the
Company and Executive shall enter into a restricted stock agreement,
substantially in the form attached here to as Exhibit A, providing for the
issuance to Executive of 1,000,000 shares of the Company's Common Stock, which
will vest over a 33 month period as provided in such restricted stock agreement.
J. ACCELERATED VESTING OF OPTIONS. Notwithstanding the provisions
of any stock option or restricted stock plan or agreement to the contrary, if
following a Change in Control (as defined in Section 6), Executive's employment
is terminated by the Company involuntarily and without Cause (as defined in
Section 6) or a Constructive Termination (as defined in Section 6) occurs, all
options to purchase shares of Common Stock of the Company granted to Executive
under the Company's 1999 Stock Option Plan shall immediately vest and become
exercisable, and all restrictions on any restricted stock granted to Executive
shall immediately lapse.
4. AT WILL EMPLOYMENT. Executive's employment with the Company will be
terminable at will, as defined under applicable law. The employment at will
relationship to exist between the Company and Executive allows either the
Company or Executive to end the employment relationship at any time, with or
without cause. If Executive's employment terminates for any reason, Executive
shall not be entitled to any payments, benefits, damages, awards or compensation
other than as provided in Section 5 of this Agreement, and as may otherwise be
available in accordance with the Company's established employee plans and
policies at the time of termination.
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5. SEVERANCE PAYMENTS.
A. DEATH, DISABILITY, VOLUNTARY RESIGNATION; TERMINATION FOR
CAUSE. If Executive's employment terminates as a result of Executive's death or
Disability, or by reason of Executive's voluntary resignation (voluntary
resignation shall not include a Constructive Termination), or if the Executive
is terminated for Cause, except as set forth in Section 7 of this Agreement,
Executive shall not be entitled to receive severance or other benefits except
for those, if any, as may then be established for such a termination under the
Company's then existing severance and benefits plans and policies at the time of
such termination. "Disability" shall mean that Executive has been unable to
perform his duties as an executive as the result of his incapacity due to
physical or mental illness, such inability continues for at least ninety (90)
days, and such disability is determined to be total and permanent by a physician
selected by the Company or its insurers and acceptable to Executive or
Executive's legal representative (such agreement as to acceptability not to be
unreasonably withheld).
B. INVOLUNTARY OR CONSTRUCTIVE TERMINATION. If at any time during
the term of this Agreement, other than following a Change in Control, the
Company terminates the employment of Executive involuntarily and without Cause
or a Constructive Termination occurs, then Executive shall be entitled to
receive the following: (A) Base Salary and vacation accrued through the
Termination Date plus continued Base Salary for a period of twenty-four (24)
months following the Termination Date (the "Severance Period"), payable in
accordance with the Company's regular payroll schedule as in effect from time to
time, (B) a bonus payment of $500,000, representing two times the amount of the
bonus paid to Executive in April 2001 for fiscal year 2000, (C) continuation of
group health benefits pursuant to the Company's standard programs as in effect
from time to time (or continuation of substantially similar benefits, through a
third party carrier, at the Company's election), for a period of not less than
eighteen (18) months (or such longer period as may be required by COBRA),
provided that Executive makes the necessary conversion, (D) the right to
exercise for one year following the Termination Date (or such longer period as
may be provided in the applicable stock option plan or agreement) all
outstanding stock options held by Executive but only to the extent such options
were vested as of the Termination Date; and (E) no other compensation, severance
or other benefits. Notwithstanding the foregoing, however, if Executive violates
the non-competition agreement set forth in Section 7 of this Agreement during
the twelve (12) month period following the Termination Date, the Company shall
not be required to continue to pay the salary or bonus specified in clause (A)
or (B) hereof for any period following the Termination Date, and in such event
Executive shall be obligated to repay to the Company any amounts previously
received pursuant to clause (A) or (B) hereof, to the extent the same relate to
any period following the Termination Date.
C. TERMINATION BY THE COMPANY FOLLOWING A CHANGE IN CONTROL. If
at any time during the term of this Agreement and following a Change in Control,
the Company terminates the employment of Executive involuntarily and without
Cause or a Constructive Termination occurs, then Executive shall be entitled to
receive the following: (A) Base Salary and vacation accrued through the
Termination Date plus continued Base Salary for a period of twenty-four (24)
months following the Termination Date (the "Severance Period"), payable in
accordance with the
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Company's regular payroll schedule as in effect from time to time; (B) a bonus
payment of $500,000, representing two times the amount of the bonus paid to
Executive in April 2001 for fiscal year 2000; (C) continuation of group health
benefits pursuant to the Company's standard programs as in effect from time to
time(or continuation of substantially similar benefits, through a third party
carrier, at the Company's election), for a period of not less than eighteen (18)
months (or such longer period as may be required by COBRA), provided that
Executive makes the necessary conversion; (D) the right to exercise for one year
following the Termination Date (or such longer period as may be provided in the
applicable stock option plan or agreement) all outstanding stock options held by
Executive; (D) an offsite office and secretarial support paid for by the Company
for a period of twelve (12) months after the Termination Date; and (F) no other
compensation, severance or other benefits. Notwithstanding the foregoing,
however, if Executive violates the noncompetition agreement set forth in Section
7 of this Agreement during the Severance Period, the Company shall not be
required to continue to pay the salary or bonus specified in clause (A) or (B)
hereof for any period following the Termination Date, and in such event
Executive shall be obligated to repay to the Company any amounts previously
received pursuant to clause (A) or (B) hereof, to the extent the same relate to
any period following the Termination Date.
D. TERMINATION BY THE EXECUTIVE FOLLOWING A CHANGE IN CONTROL. In
the event Executive's employment is not terminated by the Company during the
first twelve (12) months following a Change in Control, Executive may terminate
this Agreement upon 60 days notice to the Company during the period beginning on
the first anniversary of the Change in Control and ending on the 60th day
following such first anniversary. In the event Executive elects to so terminate
this Agreement, then Executive shall be entitled to receive the following: (A)
Base Salary and vacation accrued through the Termination Date plus continued
Base Salary for a period of twenty-four (24) months following the Termination
Date (the "Severance Period"), payable in accordance with the Company's regular
payroll schedule as in effect from time to time; (B) a bonus payment of
$500,000, representing two times the amount of the bonus paid to Executive in
April 2001 for fiscal year 2000; (C) continuation of group health benefits
pursuant to the Company's standard programs as in effect from time to time (or
continuation of substantially similar benefits, through a third party carrier,
at the Company's election), for a period of not less than eighteen (18) months
(or such longer period as may be required by COBRA), provided that Executive
makes the necessary conversion; (D) the right to exercise for one year following
the Termination Date (or such longer period as may be provided in the applicable
stock option plan or agreement) all outstanding stock options held by Executive;
(E) an offsite office and secretarial support paid for by the Company for a
period of twelve (12) months after the Termination Date; and (F) no other
compensation, severance or other benefits. Notwithstanding the foregoing,
however, if Executive violates the noncompetition agreement set forth in Section
7 during the Severance Period, the Company shall not be required to continue to
pay the salary or bonus specified in clause (A) or (B) hereof for any period
following the Termination Date, and in such event Executive shall be obligated
to repay to the Company any amounts previously received pursuant to clause (A)
or (B) hereof, to the extent the same relate to any period following the
Termination Date.
6. DEFINITIONS. For purposes of this Agreement, the following terms
shall have the following meanings:
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A. TERMINATION FOR CAUSE. "Termination for Cause" means
termination of Executive's employment by the Company due to:
(i) A material breach by Executive of any of the terms of
Sections 7 or 8 of this Agreement; or
(ii) A determination by the Board, acting in good faith and
with reasonable justification, that Executive's performance in his position as
President and Chief Executive Officer of the Company has been unsatisfactory,
after first having given written notice to Executive that his performance has
been unsatisfactory (which notice shall set forth in reasonable detail the
nature of the unsatisfactory performance), and Executive having failed to cure
such unsatisfactory performance within thirty (30) days thereafter to the
reasonable satisfaction of the Board; or
(iii) The conviction of a felony, or a crime involving moral
turpitude; or
(iv) Willful misconduct, dishonesty or fraud on Executive's
part in connection with the performance of any of his duties under this
Agreement.
B. INVOLUNTARY TERMINATION. "Involuntary Termination" shall mean
involuntary termination of Executive's employment at the will of the Company
without Cause.
C. CONSTRUCTIVE TERMINATION. "Constructive Termination" shall
mean a material reduction in Executive's overall responsibilities, duties or
Base Salary or benefits as in effect immediately prior to such reduction, and
Executive's decision to terminate his employment with the Company no more than
sixty (60) days following such change (provided, however, that such sixty (60)
day period shall apply with respect to each successive change if there shall be
more than one such change) and after at least fifteen (15) days written notice
to the Company of Executive's intent to terminate. Notwithstanding the
foregoing, insofar as Executive reports to either the Chief Executive Officer or
the Chief Operating Officer of an acquiror of the Company subsequent to a Change
in Control, such Change in Control shall not constitute a Constructive
Termination under this Section 6.C.
D. CHANGE IN CONTROL. A "Change in Control" shall be deemed to
have occurred if:
(i) For so long as any Control Shareholder or any of its
affiliates shall remain the "Beneficial Owner" (as defined in Rule 13d-3 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")), of securities
of the Company that represent 20% or more of the total voting power represented
by the Company's then outstanding voting securities, a "Change in Control" shall
be deemed to have occurred if:
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(a) Any "Person" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act, but excluding the Control
Shareholder or any of its affiliates other than an Excluded
Affiliate) becomes the Beneficial Owner, directly or
indirectly, of securities of the Company representing 50% or
more of the total voting power represented by the Company's
outstanding voting securities;
(b) The consummation of the sale or disposition by
the Company of all or substantially all of the Company's
assets;
(c) The consummation of a merger or consolidation of
the Company with any other corporation, other than a merger or
consolidation [x] which would result in the voting securities
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
or its parent) at least 70% of the total voting power
represented by the voting securities of the Company or such
surviving entity or its parent outstanding immediately after
such merger or consolidation or [y] in which Control
Shareholder or any of its affiliates would continue to be the
Beneficial Owner of securities representing at least 20% of
the total voting power represented by the voting securities of
the Company or such surviving entity or its parent outstanding
immediately after such merger or consolidation and no other
Person would be the Beneficial Owner of securities that
represent 20% or more of the total voting power represented by
the voting securities of the Company or such surviving entity
or its parent outstanding immediately after such merger or
consolidation;
(d) The Board adopts a resolution to the effect
that, for purposes of this Agreement, a Change in Control has
occurred; or
(e) Notwithstanding the provisions of paragraph
(c) above, the consummation of a merger or consolidation of
the Company with an Excluded Affiliate or any entity in which
an Excluded Affiliate beneficially owns, directly or
indirectly, 50% or more of the total voting power of the
outstanding securities or the equity interests.
(ii) At any time on or after the date Control Shareholder or
any of its affiliates no longer is the Beneficial Owner of securities of the
Company that represent 20% or more of the total voting power represented by the
Company's then outstanding voting securities, a Change in Control shall be
deemed to have occurred if:
(a) any "Person," (as such term is used for purposes
of Section 13(d) or 14(d) of the Exchange Act) (other than (A)
the Company, (B) any trustee or other fiduciary holding
securities under an employee benefit plan of the Company, or
(C) any company owned, directly or indirectly, by the
stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company),
becomes the Beneficial Owner (as defined in Rule 13d-3 under
the Exchange Act),
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directly or indirectly, of securities of the Company
representing 25% or more of the combined voting power of the
Company's then outstanding securities;
(b) during any period of twenty-four months (not
including any period prior to the execution of this
Agreement), individuals who at the beginning of such period
constitute the Board, and any new director whose election by
the Board or nomination for election by the Company's
stockholders was approved in advance by a vote of at least
two-thirds of the directors then still in office who either
were directors at the beginning of the period or whose
election or nomination for election was previously so approved
(other than (A) a director nominated by a Person who has
entered into an agreement with the Company to effect a
transaction described in Sections 6.D(ii)(a), (c) or (d)
hereof, (B) a director nominated by any Person who publicly
announces an intention to take or to consider taking actions
(including, but not limited to, an actual or threatened proxy
contest) which if consummated would constitute a Change in
Control or (C) a director nominated by any Person who is the
Beneficial Owner, directly or indirectly, of securities of the
Company representing 10% or more of the combined voting power
of the Company's securities other than a Control Shareholder)
cease for any reason to constitute at least a majority
thereof;
(c) the stockholders of the Company approve any
transaction or series of transactions under which the Company
is merged or consolidated with any other company, other than a
merger or consolidation (A) which would result in the voting
securities 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 70% of the combined voting
power of the voting securities of the Company or such
surviving entity outstanding immediately after such merger or
consolidation and (B) after which no Person holds 20% or more
of the combined voting power of the then-outstanding
securities of the Company or such surviving entity;
(d) the stockholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the
sale or disposition by the Company of all or substantially all
of the Company's assets; or
(e) the Board adopts a resolution to the effect that,
for purposes of this Agreement, a Change in Control has
occurred.
Notwithstanding the foregoing provisions of (i) and (ii) above, the offer and
sale of up to approximately $125 million of preferred stock by the Company in a
private placement shall not constitute a Change in Control for purposes of this
Agreement.
E. CONTROL SHAREHOLDER. "Control Shareholder" shall mean any
Person, as such term is used for purposes of Section 13(d) or 14(d) of the
Exchange Act, that, as of the date of this Agreement, is the Beneficial Owner
directly or indirectly of securities of the Company representing
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25% or more of the combined voting power of the Company's outstanding
securities, and any affiliates thereof.
F. TERMINATION DATE. "Termination Date" shall mean (i) if this
Agreement is terminated on account of death, the date of death; (ii) if this
Agreement is terminated for Disability, sixty (60) days after the Company
provides notice to Executive of the determination that a Disability exists;
(iii) if this Agreement is otherwise terminated by the Company, the termination
date specified in the notice of termination given by the Company to Executive;
(iv) if the Agreement is terminated by Executive, the termination date specified
in the notice of termination given by Executive to the Company; or (v) if this
Agreement expires by its terms, then the last day of the term of this Agreement.
G. EXCLUDED AFFILIATE. "Excluded Affiliate" means any
affiliate of the Control Shareholder on the date of this Agreement which on the
date of this Agreement was filing reports with the Securities and Exchange
Commission pursuant to Sections 13 or 15(d) of the Securities Exchange Act of
1934.
7. COVENANTS NOT TO SOLICIT OR COMPETE
A. NON-COMPETITION. Executive agrees that, during the
Noncompete Period (as defined in Section 7), he shall not in any manner,
directly or indirectly or by assisting others, as a supervisor, administrator,
executive, senior or management level employee, owner, proprietor, shareholder,
director, consultant or otherwise, engage in any business which provides high
speed internet access, IP telephony or similar services which are the same or
essentially the same as the business of the Company as its primary business
(including, by way of example @Home, ISP Channel and RoadRunner); provided that
Executive shall not be restricted from owning less than five percent (5%) of the
outstanding shares of a company whose shares are publicly traded;
notwithstanding the foregoing, the noncompetition provisions of this Section 7.A
shall not apply to Executive in the event Executive's employment is terminated
for Cause unless the Company, by action of the Compensation Committee of the
Board, elects to pay Executive his Base Salary for a period of twelve (12)
months following the Termination Date.
B. NON-SOLICITATION. Executive agrees that, during the
Noncompete Period, he shall not (other than in the regular course of the
Company's business), solicit, directly or indirectly, business of the type then
being performed by the Company from any person, partnership, corporation or
other entity which [a] is a customer of the Company at the time Executive's
employment with the Company terminates, or [b] was such a customer within the
two-year period immediately prior thereto, for the purposes of providing
products or services that are competitive with those provided by the Company.
C. NON-INDUCEMENT. Executive agrees that for the period he is
employed by the Company and for a one year period immediately following the
termination of his employment with the Company for any reason whatsoever, he
shall not directly or indirectly, individually or on behalf
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of persons not parties to this Agreement, aid or endeavor to solicit or induce
any of the Company's employees to leave their employment with the Company in
order to accept employment with Executive or another person, partnership,
corporation or other entity.
D. NONCOMPETE PERIOD. For purposes of this Section 7, the
Noncompete Period shall mean a period commencing on the date hereof and
continuing for the greater of (i) twelve (12) months following the Termination
Date or (ii) any Severance Period.
E. INJUNCTIVE RELIEF; ENFORCEABILITY. Executive agrees that
the Company may not be adequately compensated by damages for a breach by
Executive of any of the covenants contained in this Section 7, and that, in
addition to all other remedies, the Company shall be entitled to injunctive
relief and specific performance. In such event, the periods of time referred to
in this Section 7 shall be deemed extended for a period equal to the respective
period during which Executive is in breach thereof, in order to provide for
injunctive relief and specific performance for a period equal to the full term
thereof. The covenants contained in this Section 7 shall be construed as
separate covenants, and if any court shall finally determine that the restraints
provided for in any such covenants are too broad as to the geographic area,
activity or time covered, said area, activity or time covered may be reduced to
whatever extent the court deems reasonable and such covenants shall be enforced
as to such reduced area, activity or time and Executive expressly agrees that
this Agreement, as so amended, shall be valid and binding.
8. PROPRIETARY RIGHTS.
A. RECOGNITION OF COMPANY'S RIGHTS; NONDISCLOSURE. At all
times during the term of his employment and thereafter, Executive will hold in
strictest confidence and will not disclose, use, lecture upon or publish any of
the Company's Proprietary Information (as defined below), except as such
disclosure, use or publication may be required in connection with his work for
the Company, or unless the Chairman or the Board expressly authorizes such in
writing. Executive shall and hereby does assign to the Company any rights he may
have or acquire in such Proprietary Information and recognizes that all
Proprietary Information shall be the sole property of the Company and its
assigns and that the Company and its assigns shall be the sole owner of all
patent rights, copyrights, trade secret rights and all other rights throughout
the world in connection therewith. The term "Proprietary Information" shall mean
trade secrets, confidential knowledge, data or any other proprietary information
of the Company which the Company treats as confidential with respect to the
general public. By way of illustration but not limitation, "Proprietary
Information" includes (a) inventions, trade secrets, ideas, processes, formulas,
data, programs, other words of authorship, know-how, improvements, discoveries,
developments, designs and techniques relating to the business or proposed
products of the Company and which were learned or discovered by Executive during
the term of his employment with the Company; and (b) information regarding plans
for research, development, new products and services, marketing and selling,
business plans, budgets and unpublished financial statements, licenses, prices
and costs, suppliers and customers which were learned or discovered by him
during the term of his employment with the Company, and information regarding
the compensation of other employees of the Company. For purposes of this
Agreement,
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the term "Proprietary Information" shall not include information that Executive
can show by competent proof (i) was known to Executive prior to disclosure by
the Company; (ii) was generally known to the public at the time the Company
disclosed the information to Executive; (iii) became generally known to the
public after disclosure by the Company through no act or omission of Executive;
or (iv) was disclosed to Executive by a third party having a bona fide right
both to possess the information and to disclose it to Executive.
B. THIRD PARTY INFORMATION. Executive understands, in
addition, that the Company may from time to time receive from third parties
confidential or proprietary information ("Third Party Information") subject to a
duty on the Company's part to maintain the confidentiality of such information
and to use it only for certain limited purposes. During the term of his
employment and thereafter, Executive will hold Third Party Information in the
strictest confidence and will not disclose (to anyone other than Company
personnel who need to know such information in connection with their work for
the Company) or use, except in connection with his work for the Company, Third
Party Information unless expressly authorized by the Chairman of the Company in
writing.
C. RETURN OF COMPANY DOCUMENTS. When Executive leaves the
employ of the Company, he will deliver to the Company all drawings, notes,
memoranda, specifications, devices, formulas, and documents, together with all
copies thereof, and any other material containing or disclosing any Third Party
Information or Proprietary Information of the Company.
D. LEGAL AND EQUITABLE REMEDIES. Because Executive's services
are personal and unique and because Executive may have access to and become
acquainted with the Proprietary Information of the Company, the Company shall
have the right to enforce this Section 8 of the Agreement and any of its
provisions by injunctions, specific performance or other equitable relief,
without bond, without prejudice to any other rights and remedies that the
Company may have for a breach of this Agreement.
9. NOTICES. All notices and other communications hereunder shall be in
writing and shall be given or made by hand delivery, or by certified or
registered mail, return receipt requested, postage prepaid, or by a reputable
overnight courier, as follows, or to such other person or address as shall be
hereafter designated by notice given in accordance with this Section:
A. If to the Company: High Speed Access Corp.
Attn: Chairman
00000 Xxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
B. If to Executive: Xxxxxx X. X'Xxxxx
00 Xxxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
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Any notice or other communication hereunder shall be deemed to have been duly
given or made if made by hand, when delivered against receipt therefor or when
attempted delivery shall be rejected, as the case may be, if made by letter,
upon deposit thereof in the mail, postage prepaid, registered or certified, with
return receipt requested, and if made by reputable overnight courier, when sent.
Notwithstanding the foregoing, any notice or other communication hereunder which
is actually received by a party hereto shall be deemed to have been duly given
or made to such party.
10. MISCELLANEOUS.
A. ASSIGNMENT. This is a contract for personal services by
Executive and may not be assigned by Executive. This Agreement shall inure to
the benefit of and be binding upon the Company and its successors and assigns.
B. WAIVER OF BREACH. Failure or delay by either party to
insist upon compliance with any provision hereof shall not operate as, and is
not to be construed as, a waiver or amendment of such provision. The waiver by
either party of a breach of any provision of this Agreement by the other shall
not operate or be construed as a waiver of any subsequent breach, whether
occurring under similar or dissimilar circumstances.
C. ENTIRE AGREEMENT. This Agreement contains the entire
agreement of the parties with respect to the subject matter hereof. This
Agreement may not be changed orally, but only by an amendment in writing signed
by the parties hereto. Except for outstanding stock option agreements between
the Company and Executive and that certain Restricted Stock Agreement dated
November 10, 2000 between the Company and Executive, all prior agreements and
understandings concerning Executive's employment by the Company, including,
without limitation, that certain Employment Agreement between the Company and
Executive dated as of October 1, 1999 (the "1999 Agreement"), that certain
Supplemental Executive Compensation Agreement between the Company and Executive,
dated as of October 1, 1999, and the Original Agreement are hereby canceled and
superseded by this Agreement. To the extent any term or provision of this
Agreement conflicts with or is inconsistent with the terms and provisions of any
stock option or restricted stock agreement between the Company and Executive,
the terms and provisions of this Agreement shall control.
D. SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
the remainder of this Agreement.
E. HEADINGS. The headings contained in this Agreement are for
convenience only and shall not be deemed a part of this Agreement in construing
or interpreting the provisions hereof.
F. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Colorado.
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G. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which when
taken together shall constitute one and the same instrument.
H. ARBITRATION. Any dispute or controversy arising out of, or
relating to, this Agreement or any modification or extension of this Agreement,
including any claim for damages, recission, specific performance or other legal
or equitable relief, shall be settled by arbitration in the City of Denver,
State of Colorado, in accordance with the rules of the American Arbitration
Association. The parties shall, within thirty (30) days of the date of demand by
either party for arbitration, mutually select one independent, qualified
arbitrator. Each party reserves the right to object to any individual arbitrator
who shall be employed by or affiliated with a competing organization. In the
event objection is made, the Association shall resolve any dispute regarding the
propriety of an individual arbitrator acting in that capacity. The parties shall
each bear one-half of the expenses of the arbitrator. Hearings in the proceeding
shall commence within 120 days of the selection of the arbitrator. The
determination of the arbitrator when made shall be binding upon all parties
bound by the terms of this Agreement. Judgment upon the award rendered by the
arbitrator may be entered in any court of competent jurisdiction. The foregoing
notwithstanding, the Company shall have the right to seek injunctive or other
equitable relief from any court of competent jurisdiction in the event of any
breach or threatened breach of Sections 7 or 8 of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day, month and year first above written.
HIGH SPEED ACCESS CORP.
By:
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Title:
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("Company")
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XXXXXX X. X'XXXXX
("Executive")
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