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EXHIBIT 10.7
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of the 15th day of November, 1999 by and between Net2000 Communications, Inc.
(the "Employer") and Xxxxx X. Xxxxxxxxxxx (the "Executive").
WITNESSETH:
WHEREAS:
(1) Employer desires to retain Executive's services, upon the terms and
conditions hereafter described, and Executive desires to be employed by
Employer upon such terms and conditions;
(2) Executive understands and acknowledges that, in connection with this
proposed employment Executive will meet important customers and referral
sources of Employer, and learn of confidential business information, ways
of doing business, and trade secrets of Employer of which Executive was
not aware, and that accordingly Executive's agreement to and compliance
with the covenants and terms set forth in Sections 7 and 8 of this
Agreement are a material and essential condition to Employer's agreement
to employ Executive;
NOW, THEREFORE, in consideration of the premises, and the promises,
covenants and agreements hereinafter described, Employer and Executive agree as
follows:
1. Employment. Employer hereby employs Executive, and Executive hereby
accepts employment with Employer, upon and subject to the terms and conditions
set forth in this Agreement. Employer shall at all times during Executive's
employment recommend that the Board of Directors ("the Board") nominate
Executive for a seat on Employer's Board of Directors and use its reasonable
efforts to cause Executive to be elected to the Board.
2. Duties. (a) Executive shall serve as the President, and perform, under
and according to Employer's the Chief Executive Officer's ("CEO's") direction
and control and to the best of Executive's abilities, all executive, advisory,
administrative, and/or managerial duties (if any) which may be assigned or
delegated to Executive from time to time by the CEO of Employer. Executive shall
carry out, follow and comply with all directives, rules, and policies of
Employer and the Board, and shall have the authority and responsibilities
customarily exercised by a President, subject to the CEO's direction and
control, and without additional compensation shall provide services to, and
serve as an officer and/or director of, any subsidiary, affiliate or other
business or venture in which Employer may hold an interest, as the CEO may
direct. Executive's responsibilities shall include, without limitation, the
following duties:
- Managing all day to day operations of the Company;
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- Meet corporate objectives for top line revenue, gross margin, and
customer retention;
- Leadership in setting strategy for new markets, product development,
pricing, and differentiation while executing customer acquisition and
retention for retail, carrier and alternate channel sales;
- Further develop the sales and marketing organizations as required to
effectuate sales success;
- Work to develop, implement or improve processes, procedures and systems
necessary to facilitate the order entry, provisioning, billing and customer
care functions in support of our business;
- Work with IT to lead Sales Force Automation including database management,
pricing tools and assist with customer relationship management initiatives;
and Manage P/L to budget.
(b) Executive shall exert Executive's best efforts and devote
substantially all of Executive's working time, attention and energies to
Employer's business and the performance of Executive duties, and shall not
engage in any other business activity, whether or not such employment or
business activity is pursued for gain, profit or other pecuniary advantage,
without Employer's express prior written consent; provided, however, that (1)
Executive may serve on the board of directors of other corporations provided
such activities and service do not violate any other covenant or term of this
Agreement, interfere with the performance of Executive's duties for Employer, or
create a conflict of interest or the appearance of a conflict of interest with
respect to Employer or be inconsistent with any of Employer's policies as may be
amended from time to time; (2) if the same does not violate any other covenant
or term of this Agreement, Executive may invest Executive's personal assets in
any form or manner so long as it does not require Executive's services in the
operation of any business in which such investment is made (but nothing in this
Agreement shall restrict Executive's right to invest in Employer or the Company
(defined below)).
(c) During his employment hereunder, Executive agrees not to engage
in any other employment or engage in activity at any time during his employment
that interferes with the performance of his duties for Employer. Executive also
agrees to enter into and abide by any agreements generally executed by the
stockholders and other executives of Employer, such as a stock trading
standstill agreement in connection with an initial public offering of Employer's
stock.
(d) Executive hereby represents to Employer that his performance of
all of the terms of this Agreement and his performance as an employee do not and
will not breach any agreement to keep in confidence proprietary information
which he has acquired from any third party in confidence or in trust prior to
his employment by Employer. Executive also represents that he has not entered
into, and agrees that he will not enter into, any agreement either written or
oral in conflict with the terms of this Agreement
3. Term of Employment.
(a) Executive's employment with Employer commences as of the date
first written above, and unless earlier terminated pursuant to the provisions of
Section 3(b), terminates at the close of business on November 14, 2001 (the
"Term"), provided, however, that commencing on
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November 14, 2001, and on each annual anniversary of such date (such date and
each annual anniversary being called a "Renewal Date"), this Agreement
automatically shall extend for an additional one-year period upon the terms
described in this paragraph, unless 60 days or more prior to the Renewal Date,
either party gives notice to the other in accordance with Section 14 that such
party elects not to renew the employment term. If such notice of non-renewal is
given, then Executive's employment shall terminate at the expiration of the then
current term. In the case of each such renewal (i) Executive shall be
compensated as set out in Section 4(a)-(b); and (ii) all other terms of this
Agreement (including those respecting termination) shall remain in full force
and effect. The parties acknowledge their intentions that the foregoing
provisions could (through the failure to elect not to renew or to exercise
rights under Section 3(b)) result in a perpetual employment without any definite
duration during Executive's life.
(b) Notwithstanding the foregoing, prior to the expiration of the
Term (as the same may be extended) (i) Employer may terminate Executive's
employment, without prior notice, for "Cause". For purposes of this Agreement,
grounds for termination for "Cause" include: (1) Executive's failure or refusal
to perform any stated duty; (2) misconduct or dishonesty by Executive in
connection with the performance of this Agreement or any other of Executive's
duties hereunder; (3) disloyalty, misappropriation of funds by Executive,
Executive being convicted of a felony or crime involving moral turpitude, or
fraudulent or unethical conduct by Executive related to or affecting Executive's
employment; (4) failure of Executive to meet or achieve specific business plans
or objectives as determined by the CEO or Board of Employer and which have been
made known to Executive (which is not remedied within 10 days after written
notice of the same is given by Employer); or (5) any other breach of this
Agreement by Executive (which is not remedied within 10 days after written
notice of the same is given by Employer); (ii) Executive's employment terminates
immediately upon Executive's death; (iii) Executive's employment may be
terminated, at Employer's option, if, due to physical or mental illness, injury,
or condition Executive is unable to perform any essential function of
Executive's position with reasonable accommodation for a period of more than 90
consecutive days; (iv) Executive may terminate his employment for "Good Reason"
(meaning: (x) any violation of a term of this Agreement by Employer which is not
remedied within 10 days after written notice of the same is given by Executive;
or (y) the assignment of Executive to duties which result in a substantial
diminution of Executive's position, duties or responsibilities as provided for
in this Agreement (excluding an isolated and inadvertent action which is
remedied by Employer within 10 days after written notice of the same is given by
Executive or a temporary or occasional assignment by the Board or the Chairman
made for reasons of business necessity in the good faith judgment of the Board
or its Chairman); or (z) without Executive's consent, relocation in excess of
eight (8) miles of Executive from Employer's corporate offices in the Herndon,
Virginia area.
(c) Upon termination of Executive's employment hereunder, Executive
shall be entitled only to receive any compensation accrued but unpaid as of such
date, and shall deliver to Employer all property of Employer. However, in the
event Executive validly terminates his employment prior to the expiration of the
Term for Good Reason (as defined above), or Executive's employment is terminated
pursuant to Section 3 (b)(ii) or (iii), then, notwithstanding the provisions of
Section 4(b), Executive shall be eligible to receive as and when described
below, with respect to the year in which employment terminates, the pro-rated
portion of the Executive's Bonus under the
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bonus plan for Executive in effect for that year provided the performance goals
for that Bonus plan for the entire year are in fact achieved. The pro-rated
portion shall be paid at the same time the Bonus otherwise would have been
payable under the Agreement if Executive had remained in Employer's employ, and
shall be equal to a percentage of the Bonus equal to the percentage of the
fiscal year during which Executive was employed by Employer.
(d) If Executive validly terminates Executive's employment for Good
Reason as described above, or if Employer terminates Executive's employment
(excluding a termination under Section 3(b)(i), (ii) or (iii)) without Cause or
in violation of this Agreement prior to the expiration of the Term, then
Executive shall be entitled to receive, as and when described below, an amount
equal to the then current rate of Base Salary being paid to Employer (excluding
bonuses, benefits, or other compensation), provided that during the time
payments are being made to Executive, Executive complies with the provisions of
Sections 7 and 8 whether or not they otherwise would be enforceable, and
provided further that Executive first executes and delivers to Employer a
document in form and substance satisfactory to Employer, releasing, waiving, and
agreeing not to xxx on any claims or causes of action which Executive then may
have or hold against Employer, the Company, or any of their respective
affiliates, employees, directors, insurers or agents arising out of or relating
to Executive's employment, this Agreement or its termination, or any facts
occurring prior to that date, and all conditions to making that release and
waiver legally effective have been satisfied. This sum will be paid out in 12
equal consecutive monthly installments on the Employer's regular monthly
paydays, commencing with the month following the month Executive's employment
terminates and all such conditions have been satisfied. These payments are in
addition to any prorated bonus to which Executive may be entitled under the
provisions of the immediately preceding paragraph.
(e) The provisions of Sections 3, 7, 8 and 9 of this Agreement, and
any related provisions, shall survive and continue after the termination of this
Agreement and after the termination of Executive's employment.
4. Compensation. For the services rendered pursuant to this
Agreement's terms, during Executive's employment Executive shall receive the
following:
(a) Base Salary. Executive shall be compensated at an annual rate of
$190,000 ("Base Salary"). Payments will be made at least once a month on a
regular payday of Employer.
(b) Bonus. Executive shall be entitled to receive a bonus ("Bonus"),
payable and determined as described below, for each calendar year in which
Executive meets the performance goals established by the Employer's CEO after
consultation to evaluate Executive's performance for such calendar year and was
employed by Employer at the end of the year. With respect to any such Bonus plan
and goals established by Employer, Executive shall be eligible to qualify for a
bonus of at least 25% of Base Salary. The Bonus will be paid by April 15th of
the following calendar year. The Bonus for 1999 will be pro-rated at 100% of the
target based on Executive's start date of November 15, 1999.
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(c) Review. Employer will review the compensation spelled out above,
on an annual basis, to determine whether any adjustment more favorable to
Executive should be made.
(d) Withholding. Employer shall withhold from Executive's
compensation all amounts owed Employer (if any) and all amounts required to be
withheld under federal, state or local law.
(e) Benefit Plans, Vacation. During Executive's employment with
Employer, Employer will pay the cost of Executive's participation in any group
health insurance plan then maintained by Employer to the same limited extent
provided to employees of Employer generally. Executive will be entitled to
participate in any other benefit plan of Employer offered by Employer to its
employees generally, provided Executive is eligible to participate under the
terms of any such plan at standard rates. Executive shall be entitled to receive
three (3) weeks paid vacation per annum.
(f) Options. Executive shall be granted an option (the "Option")
under the 1999 Incentive Stock Option Plan of Net2000 Communications, Inc.
("Stock Option Plan") (the "Company"), per the terms of the Stock Option
Agreement under that Plan and the Stock Option Plan, as described below. The
Option will be to purchase Two Hundred Seventy-Five Thousand (275,000) shares of
the Company's common stock. The exercise price of these stock options will be at
a strike price of $4.00 per share. The Option will be an incentive stock option
for federal income tax purposes to the extent permitted under applicable tax
laws and regulations, and the Option shall not be convertible to a non-qualified
stock option without Executive's express consent. Notwithstanding anything to
the contrary in the Stock Option Plan: (1) one-third of the options granted
pursuant to said option agreement shall vest immediately when the option is
granted and Executive has executed and delivered this Agreement and the Stock
Option Agreement, with the balance to vest over a thirty-six month period 1/36
per month (subject to the terms of the Stock Option Plan and the Stock Option
Agreement), and (2) fifty percent (50%) of Executive's non-vested stock options
shall immediately vest and all other non-vested stock options shall vest on a
pro-rata basis over the period of six (6) months after consummation of and
closing on the sale of all or substantially all of the assets or stock of
Employer, or in the event of a "Change Of Control" involving Employer (as such
term is defined below), provided Executive then is employed by Employer. In the
event of Executive's death, the vested options granted to Executive may be
exercised by his personal representative to the extent otherwise exercisable by
Executive under the terms of the applicable plan and option agreement.
(g) For the purpose of this Section 4(f), a "Change of Control"
shall mean: The acquisition by any individual, entity or group within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act") (a "Person") of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of 50% or more of
either (i) the then outstanding shares of common stock of Net2000
Communications, Inc. (the "Outstanding Company Common Stock") or (ii) the
combined voting power of the then outstanding voting securities of the Company
entitled to vote generally in the election of directors (the "outstanding
Company Voting Securities); provided, however, that for purposes of this
subsection (g), the following acquisition shall not constitute a Change of
Control; (i) any acquisitions directly from the Company (including but not
limited to an acquisition of shares from the Company), (ii) any acquisition by
the Company, and (iii) any
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acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company.
(h) Automobile Allowance. During his employment with Employer,
Executive shall receive an automobile allowance of $500 per month.
5. Office. During Executive's employment, unless otherwise agreed
by Executive, Executive shall be entitled to an office at, and perform
Executive's duties principally out of, a corporate office maintained by
Employer in Herndon, Virginia.
6. Expenses. During Executive's employment, Employer shall reimburse
Executive for reasonable, ordinary and necessary business expenses incurred by
Executive in the performance of his duties for Employer subject to any budgetary
limitations established from time to time by Employer and provided Executive
provides such documentation and information as may then be required by
Employer's business expense reimbursement policy and as may be required to
satisfy the standards necessary to deduct such expenses for federal income tax
purposes.
7. Confidential Information.
(a) Executive acknowledges Employer is a developing company, and
that, in the course of developing its business, Employer has developed (and will
develop and/or acquire) and Executive will learn, valuable Confidential
Information (defined below), which was unknown to Executive prior to Executive's
employment, or which has been developed by Executive on behalf of Employer;
which Confidential Information only was and will be disclosed to Executive in
and under a relationship of trust and confidence under restrictions of
confidentiality. As used in this Agreement, Confidential Information includes,
without limitation: (i) names, addresses, phone numbers, dates and any and all
other information regarding the clients or potential clients, customers and key
contacts at customers of Employer; and (ii) trade secrets, business, sales and
financial data, pricing, costs, financial statements, programs, property, lists,
diagrams and drawings, information concerning the design, components and
manufacture of Employer's products, market information, financial and marketing
plans, manuals, strategies, and projections of Employer. Executive agrees that
the Confidential Information is a trade secret for purposes of all applicable
laws, and that Confidential Information would not be disclosed to Executive but
for Executive's execution of this Agreement.
(b) Except as required by the duties of Executive's employment with
Employer, Executive shall never during his employment or for a period of three
(3) years after such employment terminates, directly or indirectly, use,
publish, or otherwise disclose any Confidential Information, without Employer's
prior written consent. This restriction shall not apply to information which is
known in the industry generally other than by reason of any actions of
Executive.
(c) During Executive's employment with Employer, Executive shall
exercise all due and diligent precautions to protect the integrity of the
Confidential Information, and upon termination of employment, or otherwise
before then upon request, Executive shall return to
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Employer all documents or materials embodying such Confidential Information or
any part thereof (including any copies thereof) in Executive's possession or
control.
8. Restrictive Covenants.
(a) Executive acknowledges and agrees that Employer will suffer
great loss and damage if, during Executive's employment or at any time
subsequent to such employment, Executive were to improperly use or disclose
Confidential Information or goodwill of Employer, or if Executive were to use
Executive's contacts and relationships with any client, potential client,
customer, or referral source of Employer, and therefore agrees that Executive
must comply with the restrictive covenants hereinafter set forth; it being
understood at the execution of this Agreement that the parties acknowledge and
agree such restrictions protect legitimate protectable interests of Employer,
with respect to its trade secrets, customers, and referral sources, are
reasonable and necessary to protect such interests, are compatible with their
respective rights, and do not impair or prevent Executive from earning a living.
(b) During Executive's employment with Employer and for the
continuous period of one (1) year after such employment terminates (whether the
Term or any extension thereof expires, the employment term is non-renewed by
either party, or employment is terminated by Executive or Employer and
regardless of the reason for termination), Executive shall not directly or
indirectly, for any reason or purpose whatsoever (other than on Employer's
behalf in performing Executive's required duties for Employer), whether for
Executive's own benefit, or for the benefit or on behalf of, or in conjunction
with, any other corporation, partnership, proprietorship, or other form of
business entity, and whether as an employee (in any executive, managerial,
officer, exempt or sales position), partner, principal, officer, director,
consultant, agent, stockholder or otherwise:
(i) contact, call on, solicit the business of, sell any
goods or services of a type then provided by Employer
to, or attempt to take away from Employer, any client or
customer of the Employer or any business of such
customer of a type then provided by Employer to such
customer;
(ii) engage in any manner (or own any interest) in any
part of a business then engaged in by Employer,
anywhere within any metropolitan area of the
continental United States or any other country where
Employer then is marketing and/or selling its goods
or services (the mere ownership of less than two
percent (2%) of the shares of any publicly traded
corporation shall not be considered a violation of
this provision); or
(iii) solicit or encourage any director, officer, or other
employee of Employer to discontinue that individual's
status or employment with Employer or such individual to
engage or participate in any activity or employment in
competition with Employer.
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(c) It is the intention of the parties to restrict Executive's
activities only to the extent necessary for the protection of Employer's
legitimate business interests. To the extent that any covenant set forth in this
Section 8, or in Section 7 of this Agreement, shall be determined to be invalid
or unenforceable in any respect or to any extent, the covenant shall not be
rendered invalid, but instead shall be automatically amended for such lesser
term or to such lesser extent, or in such other degree, as may grant the
Employer or other party seeking enforcement the maximum protection and
restrictions on Executive's activities permitted by applicable law in such
circumstances.
(d) Executive acknowledges and agrees that (i) the separate and
distinct promises in this Agreement are reasonable and necessary in order to
protect the legitimate business interests described above, (ii) any violation
would result in irreparable injury to Employer, and (iii) the enforcement of a
remedy by way of injunction or otherwise would not prevent Executive from
earning a living.
9. Non-Waiver of Covenants. Employer's failure to exercise any of its
rights to enforce the provisions of this Agreement shall not be affected by the
existence or non-existence of any other similar agreement for any other person
employed by Employer, or by Employer's failure to exercise any of its rights
under this agreement or any other similar agreement. Employer's failure to
exercise any of its rights in the event Executive breaches any promise in this
Agreement shall not be construed as a waiver of such breach or prevent Employer
from later enforcing strict compliance with any and all promises, obligations,
and rights set forth in this Agreement.
10. Assignment, Entire Agreement, Amendment. This Agreement may be
assigned only by Employer, and is freely assignable by Employer. It constitutes
the entire agreement between the parties concerning the subject matter of this
Agreement and supersedes all prior understandings, communications and agreements
concerning such subject matter. Neither this Agreement, nor any of its terms,
can be changed, added to, waived or supplemented except in a written document
signed by Executive and Employer, except that Employer may adopt or change any
vacation, benefit, rules or other policy generally applicable to employees or a
group or class of employees in its discretion (excluding any change in the
incentive stock option plan which violates the terms of this Agreement).
11. Notification. In order to preserve Employer's rights under this
Agreement, Employer is authorized to advise any third party with whom Executive
may become employed or enter into any business or contractual relationship with,
or whom Executive may contact for any such purpose, of the existence of this
Agreement and its terms, and Employer shall not be liable for doing so.
Executive represents and agrees that Executive has not provided, and will
not provide to Employer (or utilize in connection with the performance of his
duties), any trade secrets of a prior employer.
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12. Governing Law, Assignment, Arbitration, Miscellaneous.
(a) This Agreement shall be governed by and construed and
interpreted according to the internal laws of the Commonwealth of Virginia
without reference to conflicts of law principles. The headings of the sections
are inserted for convenience of reference only and shall not be considered to
constitute a part of this Agreement nor to affect the meaning.
(b) If any one or more provisions contained in this Agreement, or in
the application thereof, shall be held to be invalid, illegal, or unenforceable
in any respect, the validity, legality and enforceability of the remaining
provisions of this Agreement shall not in any way be affected or impaired.
Nothing in this Agreement shall be deemed to require Employer or Executive to
take any action or perform any obligation which would be contrary to or
inconsistent with a Court order.
(c) Employer represents and agrees that the execution, delivery and
performance of this Agreement do not conflict with or violate Employer's
articles, by-laws or resolutions, or any judgment, order or agreement to which
Employer is a party or may be bound, and that all corporate action necessary to
authorize the Employer's execution and delivery of this Agreement has been
taken.
(d) In any suit to enforce this Agreement, venue and jurisdiction is
proper in the County in Virginia in which Herndon, Virginia (or Employer's
corporate offices, if in a different county) is located, and (if federal
jurisdiction exists) the federal district court for the district in which
Herndon, Virginia (or Employer's corporate offices, if in a different county) is
located, and the parties waive any objection to jurisdiction and venue in any
such forum and any claim that such forum is not the most convenient forum.
13. (a) In consideration of Employee's employment by Employer, and the
wages and benefits to be paid to Employee, Employee agrees that any and all
claims, disputes, and disagreements relating to his employment with or
termination of employment from Employer or any of its affiliates shall be
submitted to binding arbitration in accordance with rules of the America
Arbitration Association, and that this is the sole, exclusive, and final means
for resolution of any claims. Employer understands and agrees that any dispute
arbitrated will be heard solely by an arbitrator, and not by a court, and that
he is waiving his right to trial by jury and agrees that no demand, request, or
motion will be made for trial by jury. Employee further agrees that this
agreement to arbitrate any employment-related claim, dispute, or disagreement is
governed by the Federal Arbitration Act, and fully enforceable. Employee's
agreement to allow all claims, disputes, and disagreements to be arbitrated
shall cover all matters directly or indirectly related to his employment with or
termination of employment by Employer or any of its affiliates; including,
without limitation, all claims involving laws against discrimination whether
brought under federal, state, or local law, any claim in tort or contract,
claims involving co-employees, claims involving wage payment or collections
matters, or any other claim under any federal, state, or local law, regulation,
or ordinance regarding employment, but excluding Worker's Compensation claims.
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(b) The arbitration requirement set forth in Section 13(a)
immediately above shall be null and void if and when a "Change of Control", as
defined in Section 4(g) of the Agreement, involving Employer is consummated.
14. Acknowledgment. By signing this Agreement, Executive and Employer
each acknowledge and agree that they each have read the Agreement, understand
and intend to fulfill each and every one of the promises in this Agreement,
understand this is a legally binding agreement, and acknowledge receiving a copy
of the Agreement.
15. Notice. Every notice, demand or other communication required or
contemplated by this Agreement shall be in writing and deemed to have been made
either when personally delivered to the respective party or deposited in the
ordinary U.S. mail, first-class postage prepaid, to the address set forth below
under such party's signature, or to such changed address as either party may
have given by written notice to the other party.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement below,
as of this 15th day of November, 1999.
NET2000 COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxx, Xx. Date: November 15, 1999
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Xxxxxxx Xxxxxx, Xx.
Chief Executive Officer & Chairman
/s/ Xxxxx X. Xxxxxxxxxxx Date: November 15, 1999
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Xxxxx X. Xxxxxxxxxxx
Residing at:
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