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Exhibit 10.6
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), dated as of October 23, 1998
by and between MetroWeb Technologies, Inc., a Delaware corporation with its
principal place of business at _________________ (the "Company"), and
_____________ residing at _______________ (the "Employee").
The Company desires to employ the Employee, and the Employee desires to be
employed by the Company. In consideration of the mutual covenants and promises
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
agree as follows:
1. TERM OF EMPLOYMENT. The Company hereby agrees to employ the Employee,
and the Employee hereby accepts employment with the Company, upon the terms set
forth in this Agreement, for the period commencing on October 23, 1998 (the
"Commencement Date") and ending on October 23, 2001 (such period, as it may be
extended, the "Employment Period"), unless sooner terminated in accordance with
the provisions of Section 4.
2. TITLE; CAPACITY. The Employee shall serve as _______ or in such other
position as the Company or its Board of Directors (the "Board") may determine
from time to time. The Employee shall be subject to the supervision of, and
shall have such authority as is delegated to him by the Board.
The Employee hereby accepts such employment and agrees to undertake the
duties and responsibilities inherent in such position and such other duties and
responsibilities as the Board or its designee shall from time to time reasonably
assign to him and that are commensurate with his title. Beginning no later than
the closing of the Company's initial preferred stock financing, the Employee
agrees to devote his entire business time, attention and energies to the
business and interests of the Company during the Employment Period. The Employee
agrees to abide by the rules, regulations, instructions, personnel practices and
policies of the Company and any changes therein which may be adopted from time
to time by the Company. The Employee acknowledges receipt of copies of all such
rules and policies committed to writing as of the date of this Agreement.
3. COMPENSATION AND BENEFITS.
3.1 SALARY. The Company shall pay the Employee an annual base salary
of $______ for the one-year period commencing on the Commencement Date. Such
salary shall be subject to increase thereafter as determined by the Board.
3.2 FRINGE BENEFITS. The Employee shall be entitled to participate in
all bonus and benefit programs that the Company establishes and makes available
to its employees, if any, to the extent that Employee's position, tenure,
salary, age, health and other qualifications make him eligible to participate.
The Employee shall be entitled to three weeks paid vacation per year, to be
taken at such times as may be approved by the Board or its designee.
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3.3 REIMBURSEMENT OF EXPENSES. The Company shall reimburse the
Employee for all reasonable travel, entertainment and other expenses incurred or
paid by the Employee in connection with, or related to, the performance of his
duties, responsibilities or services under this Agreement, upon presentation by
the Employee of documentation, expense statements, vouchers and/or such other
supporting information as the Company may request, PROVIDED, HOWEVER, that the
amount available for such travel, entertainment and other expenses may be fixed
in advance by the Board.
3.4 BONUS. The Employee shall be eligible for the bonus program
indicated in SCHEDULE A to this Agreement.
4. EMPLOYMENT TERMINATION. The employment of the Employee by the Company
pursuant to this Agreement shall terminate upon the occurrence of any of the
following:
4.1 After October 23, 2001, at the election of either party upon not
less than 30 days' prior written notice;
4.2 At the election of the Company, for cause (as defined below),
immediately upon written notice by the Company to the Employee. For the purposes
of this Agreement, "cause" for termination shall mean (a) the Employee's gross
negligence or willful or intentional misconduct in the performance of his or her
duties on behalf of the Company and, in the case of misconduct, the failure to
refrain from such misconduct after written notice thereof; (b) any act of
dishonesty which adversely affects the Company or any act or omission which
constitutes a knowing and intentional violation of law on the part of the
Employee and which adversely affects the Company; (c) such Employee's breach of
his fiduciary duty of loyalty or care to the Company; or (d) the substantial and
continuing, after reasonable written notice thereof, failure of the Employee to
render services to the Company in accordance with his assigned duties, which
materially and adversely affects or is reasonably likely to materially and
adversely affect the business, financial condition, operations, property or
affairs of the Company;
4.3 At the election of the Employee, for Good Reason (as defined
below), immediately upon written notice by the Employee to the Company. For the
purposes of this Agreement, "Good Reason" shall exist upon (i) mutual agreement
of the Employee and the Board of Directors of the Company that Good Reason
exists; (ii) the Employee being required by the Company to relocate from the
area within fifty (50) miles of the intersection of Interstates 93 and 495,
prior to October 23, 2001 without the consent of the Employee; (iii) relocation
of the Employee's primary place of business to a location that results in an
increase in the Employee's daily one way commute of at least 35 miles prior to
October 23, 2001; (iv) reduction of the Employee's annual base salary or health
insurance and similar benefits; (v) any material breach by the Company or any
successor thereto of any agreement to which the Employee and the Company are
parties, which breach is not cured within 10 days after written notice thereof;
or (vi) demotion of the Employee to a position below that of Vice President
and/or requiring the Employee to report to an employee of the Company other than
the then-current Chief Executive Officer of the Company;
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4.4 Thirty days after the death or disability of the Employee. As
used in this Agreement, the term "disability" shall mean the inability of the
Employee, due to a physical or mental disability, for a period of 90 days,
whether or not consecutive, during any 360-day period to perform the services
contemplated under this Agreement. A determination of disability shall be made
by a physician satisfactory to both the Employee and the Company, PROVIDED THAT
if the Employee and the Company do not agree on a physician, the Employee and
the Company shall each select a physician and these two together shall select a
third physician, whose determination as to disability shall be binding on all
parties;
4.5 At the election of the Company, without cause (as defined in
Section 4.2), upon not less than four weeks' prior written notice of
termination.
4.6 At the election of the Employee, without Good Reason (as defined
in Section 4.3), upon not less than four weeks' prior written notice of
termination.
5. EFFECT OF TERMINATION.
5.1 TERMINATION FOR CAUSE OR WITHOUT GOOD REASON. In the event the
Employee's employment is terminated by the Company pursuant to Section 4.2 or by
the Employee pursuant to Section 4.6, the Company shall pay to the Employee the
compensation and benefits otherwise payable to him under Section 3 through the
last day of his actual employment by the Company.
5.2 TERMINATION WITHOUT CAUSE OR FOR GOOD REASON. In the event the
Employee's employment is terminated by the Company pursuant to Section 4.5 or by
the Employee pursuant to Section 4.3, the Company shall continue the
compensation and benefits payable to him under Section 3 for (i) twelve months
or (ii) until the expiration of the Employment Period, whichever is longer (the
"Payment Period"). The Company shall be permitted to reduce the health insurance
benefits payable to the Employee by the Company during the Payment Period to the
extent the Employee receives health insurance benefits, comparable to those
received by the Employee immediately prior to the termination of his employment,
from a third party. Beginning six (6) months after the termination of the
Employee's employment, the Company shall be permitted to reduce the cash
compensation payable to the Employee by the Company during the Payment Period to
the extent the Employee receives actual cash compensation from third party
employment from time to time after such six (6) month period and during the
Payment Period. Beginning six (6) months after such employment termination,
whenever the Employee receives cash compensation from third party employment,
the Employee shall promptly notify the Company and the Company shall be entitled
to deduct the amount of such compensation (before withholdings and taxes) from
the next payment to be made by the Company to the Employee. Employee shall, upon
written request of the Company, from time to time, confirm whether or not the
Employee is employed and, if employed, the amount of cash compensation received
by the Employee pursuant to such employment. The Employee shall have no
obligation to seek employment after the termination of his employment with the
Company.
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5.3 TERMINATION FOR DEATH OR DISABILITY. If the Employee's employment
is terminated pursuant to Section 4.4, the Company shall pay to the estate of
the Employee or to the Employee, as the case may be, the compensation which
would otherwise be payable to the Employee up to the end of the month in which
the termination of his employment because of death or disability occurs.
5.4 SURVIVAL. The provisions of Sections 6 and 7 shall survive the
termination of this Agreement.
6. NON-COMPETITION AND NON-SOLICITATION. While the Employee is employed
by the Company and for a period of 12 months after the termination or expiration
thereof, or until payments pursuant to Section 5.2 have ceased, if longer, the
Employee will not directly or indirectly:
(a) Engage in any business or enterprise (whether as owner, partner,
officer, director, employee, consultant, investor, lender or otherwise, except
as the holder of not more than 1% of the outstanding stock of a publicly-held
company) that is competitive with the Company's business, including but not
limited to any business or enterprise that develops, manufactures, markets, or
sells any product or service that competes with any product or service
developed, manufactured, marketed or sold, or planned to be developed,
manufactured, marketed or sold, by the Company or any of its subsidiaries while
the Employee was employed by the Company; or
(b) Either alone or in association with others (i) solicit any
employee of the Company to leave the employ of the Company or (ii) solicit for
employment (or solicit to engage as an independent contractor) or hire as an
employee (or engage as a consultant) any person who was an employee of the
Company at the time of the termination or cessation of the Employee's employment
with the Company.
(c) If any restriction set forth in this Section 6 is found by any
court of competent jurisdiction to be unenforceable because it extends for too
long a period of time or over too great a range of activities or in too broad a
geographic area, it shall be interpreted to extend only over the maximum period
of time, range of activities or geographic area as to which it may be
enforceable.
(d) The restrictions contained in this Section 6 are necessary for
the protection of the business and goodwill of the Company and are considered by
the Employee to be reasonable for such purpose. The Employee agrees that any
breach of this Section 6 will cause the Company substantial and irrevocable
damage and therefore, in the event of any such breach, in addition to such other
remedies which may be available, the Company shall have the right to seek
specific performance and injunctive relief.
Notwithstanding the foregoing, beginning 12 months after the
termination or expiration of the Employee's employment with the Company, the
Employee may, in his sole discretion, notify the Company to cease payments
pursuant to Section 5.2. Upon delivery of such notice, the Employee shall no
longer be bound by this Section 6.
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7. PROPRIETARY INFORMATION AND DEVELOPMENTS.
7.1 PROPRIETARY INFORMATION.
(a) Employee agrees that all information and know-how, whether or not
in writing, of a private, secret or confidential nature concerning the Company's
business or financial affairs (collectively, "Proprietary Information") is and
shall be the exclusive property of the Company. By way of illustration, but not
limitation, Proprietary Information may include inventions, products, processes,
methods, techniques, formulas, compositions, projects, developments, plans,
research data, financial data, personnel data, computer programs, and customer
and supplier lists. Employee will not disclose any Proprietary Information to
others outside the Company or use the same for any unauthorized purposes without
written approval by an officer of the Company, either during or after his
employment, unless and until such Proprietary Information has become public
knowledge without fault by the Employee.
(b) Employee agrees that all files, letters, memoranda, reports,
records, data, sketches, drawings, laboratory notebooks, program listings, or
other written, photographic, or other tangible material containing Proprietary
Information, whether created by the Employee or others, which shall come into
his custody or possession, shall be and are the exclusive property of the
Company to be used by the Employee only in the performance of his duties for the
Company. All such materials or copies thereof and all tangible property of the
Company in the custody or possession of the Employee shall be delivered to the
Company, upon the earlier of (i) a request by the Company or (ii) termination of
his/her employment. After such delivery, the Employee shall not retain any such
materials or copies thereof or any such tangible property.
(c) Employee agrees that his obligation not to disclose or use
information, know-how and records of the types set forth in paragraphs (a) and
(b) above, also extends to such types of information, know-how, records and
tangible property of customers of the Company or suppliers to the Company or
other third parties who may have disclosed or entrusted the same to the Company
or to the Employee in the course of the Company's business.
7.2 DEVELOPMENTS.
(a) Employee will make full and prompt disclosure to the Company of
all inventions, improvements, discoveries, methods, developments, software, and
works of authorship, whether patentable or not, which are created, made,
conceived or reduced to practice by the Employee or under his direction or
jointly with others during his employment by the Company, whether or not during
normal working hours or on the premises of the Company (all of which are
collectively referred to in this Agreement as "Developments").
(b) Employee agrees to assign and does hereby assign to the Company
(or any person or entity designated by the Company) all his right, title and
interest in and to all Developments and all related patents, patent
applications, copyrights and copyright applications. However, this Section 7(b)
shall not apply to Developments which do not relate to the present or planned
business or research and development of the Company and which are made and
conceived by the Employee not during normal working hours, not on the Company's
premises
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and not using the Company's tools, devices, equipment or Proprietary
Information. The Employee also hereby waives all claims to moral rights in any
Developments.
(c) Employee agrees to cooperate fully with the Company, both during
and after his employment with the Company, with respect to the procurement,
maintenance and enforcement of copyrights and patents (both in the United States
and foreign countries) relating to Developments. Employee shall sign all papers,
including, without limitation, copyright applications, patent applications,
declarations, oaths, formal assignments, assignment of priority rights, and
powers of attorney, which the Company may deem necessary or desirable in order
to protect its rights and interests in any Development.
7.3 OTHER AGREEMENTS. Except as disclosed on SCHEDULE B, the Employee
hereby represents that, to his knowledge, he is not bound by the terms of any
agreement with any previous employer or other party to refrain from using or
disclosing any trade secret or confidential or proprietary information in the
course of his employment with the Company or to refrain from competing, directly
or indirectly, with the business of such previous employer or any other party.
The Employee further represents that his performance of all the terms of this
Agreement and as an employee of the Company does not and will not breach any
agreement to keep in confidence proprietary information, knowledge or data
acquired by him in confidence or in trust prior to his employment with the
Company.
8. NOTICES. All notices required or permitted under this Agreement shall
be in writing and shall be deemed effective upon personal delivery or upon
deposit in the United States Post Office, by registered or certified mail,
postage prepaid, addressed to the other party at the address shown above, or at
such other address or addresses as either party shall designate to the other in
accordance with this Section 8.
9. PRONOUNS. Whenever the context may require, any pronouns used in this
Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular forms of nouns and pronouns shall include the plural, and vice
versa.
10. ENTIRE AGREEMENT. This Agreement and the Stock Restriction Agreement
of even date hereof constitute the entire agreement between the parties and
supersede all prior agreements and understandings, whether written or oral,
relating to the subject matter of this Agreement.
11. AMENDMENT. This Agreement may be amended or modified only by a written
instrument executed by both the Company and the Employee.
12. GOVERNING LAW. This Agreement shall be construed, interpreted and
enforced in accordance with the laws of the Commonwealth of Massachusetts.
13. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of both parties and their respective successors and assigns,
including any corporation with which or into which the Company may be merged or
which may succeed to its assets or
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business, provided, however, that the obligations of the Employee are personal
and shall not be assigned by him.
14. MISCELLANEOUS.
14.1 No delay or omission by the Company in exercising any right under
this Agreement shall operate as a waiver of that or any other right. A waiver or
consent given by the Company on any one occasion shall be effective only in that
instance and shall not be construed as a bar or waiver of any right on any other
occasion.
14.2 The captions of the sections of this Agreement are for
convenience of reference only and in no way define, limit or affect the scope or
substance of any section of this Agreement.
14.3 In case any provision of this Agreement shall be invalid, illegal
or otherwise unenforceable, the validity, legality and enforceability of the
remaining provisions shall in no way be affected or impaired thereby.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year set forth above.
METROWEB TECHNOLOGIES, INC.
By:________________________________
Title:_____________________________
EMPLOYEE
___________________________________
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