DSL.NET, INC. WALLINGFORD, CT 06492
EXHIBIT
10.8
XXX.XXX,
INC.
00
XXXXXX
XXXX XXXXX, XXXXX 000
XXXXXXXXXXX,
XX 00000
August
28, 2006
[Insert
Name of Executive Officer from Schedule 1 hereto]
c/o
XXX.xxx, Inc.
00
Xxxxxx
Xxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx,
XX 00000
Dear
[Insert
Name of Executive Officer from Schedule 1 hereto]:
As
you
know, XXX.xxx, Inc. (the “Company”) entered into a Purchase Agreement with
MegaPath Inc. and a wholly-owned subsidiary of MegaPath Inc. (“MegaPath”) on
August 22, 2006 (the “Purchase Agreement”). It is a condition to the closing of
the financing transaction contemplated by the Agreement (the “Financing”) that
the Company have entered into this agreement with you.
In
recognition of your historic valuable contributions to the success of the
Company and your continuing value to the Company during the period following
the
closing of the Financing, to incent you to remain as an employee of the Company,
and in consideration for the mutual covenants set out herein, the Company is
prepared to offer to you the following:
| 1. |
Provided
that you remain employed by the Company up until February 28, 2007
(the
“Retention Date”), you will be paid a retention bonus (the “Retention
Bonus”) equal to three months of your current base salary. The Company
will withhold and remit all applicable deductions from the Retention
Bonus, which will be paid to you within five (5) business days of
the
Retention Date. If your employment with the Company is terminated
by you
or by the Company for any reason prior to the Retention Date, you
will not
be paid the Retention Bonus.
|
| 2. |
If
your employment is terminated by the Company for any reason (including
death or disability) other than Cause (as defined below), or you
terminate
your employment with the Company at any time following the occurrence
of
an event of Good Reason (as defined below), the Company will pay
to you
within five (5) business days of such termination date if terminated
by
the Company without Cause or within five (5) business days of the
Good
Reason Notice Expiration Date (as defined below) if your employment
has
been terminated by you for Good Reason, as severance, a lump sum
payment
equal to six months of your current base salary (“Severance Payment”),
plus an amount equal to six months of COBRA costs (covering you as
an
individual). The Company will withhold and remit all applicable deductions
from the Severance Payment. If your employment with the Company is
terminated by the Company for Cause, or by you without Good Reason,
you
will not be paid the Severance
Payment.
|
As
used
herein, “Cause”
means:
(i) theft, fraud, dishonesty, gross negligence or willful misconduct by you
in
connection with the performance of your job duties; (ii) conviction of a felony
or a crime or civil violation which involves moral turpitude or plea of guilty
or nolo
contendere
in
respect of the foregoing; (iii) a repeated or ongoing failure to comply with
the
reasonable directions and instructions of your supervisor in connection with
the
performance of the your job duties, following notice from the Company to that
effect and reasonable opportunity to cure same; (iv) use or possession of
illegal drugs or excessive use of alcohol, while performing Company duties
or
while on Company premises; or (v) commission of any act, or failure to act,
in
bad faith, which, in the reasonable determination the Company has a material
adverse effect on the business of the Company. As used herein, “Good Reason”
shall mean that (i) your primary place of employment is moved, to your further
inconvenience, by the Company (not at your request) to a location greater than
25 miles from New
Haven, CT
or in
excess of 70 miles from your current residence address (without a corresponding
permission from the Company allowing you to telecommute);
(ii)
the Company has breached any material
term of
this Agreement or any other agreement or policy affording rights or benefits
to
you; (iii) the Company has implemented a material reduction in your job duties;
(iv) the Company has implemented a material demotion in your position or title;
or (v) the Company has reduced your current base compensation; provided,
however,
that
with respect to each of the conditions described above in items (i), (ii),
(iii), (iv) and (v), you may not establish “Good Reason” unless you have
provided written notice to the Board of Directors or Chief Executive Officer
of
the Company of the existence of such condition and the Company fails to cure
such condition prior to the sooner to occur of the 10th
business
day following receipt of such notice or the date when you shall have committed
to accepting employment from another employer following your resignation for
Good Reason, which you shall provide the Company with notice of (either of
such
time periods being referred to herein as the “Good Reason Notice Expiration
Date”).
You
will
be required to execute a Severance Agreement in the form attached hereto as
Exhibit A as a condition to receiving the Severance Payment.
Except
as
expressly amended herein, nothing in this agreement alters or amends the terms
of your employment with the Company as at the Effective Date (as defined below)
of this letter. This agreement becomes effective (the “Effective Date”) on the
later of the date that the Company receives from you an executed copy of this
agreement and the closing of the Financing.
The
benefits set forth herein are being made available to you in recognition of
your
unique knowledge and skills and in consideration for your continuing loyalty
and
dedication to the Company during this important period, and are in addition
to
your current compensation and any other benefits to which you are or may become
entitled. This agreement is binding upon and shall inure to the benefit of
the
parties hereto and their respective successors and assigns.
Please
acknowledge your receipt of this agreement by signing one copy of this letter
and returning it to the undersigned.
Yours
truly,
XXX.xxx,
Inc.
Per
order of the Board of Directors
By:
/s/
Xxxxx X.
Xxxxxxx
Name:
Xxxxx X. Xxxxxxx
Title:
President and Chief Executive Officer
Agreed
to this 28th day of August, 2006:
[Insert
Name of Executive Officer from Schedule 1 hereto]
Attachment:
Exhibit
A
- Severance Agreement
Exhibit
A
Form
of Severance Agreement
(attached
hereto)
Exhibit
A
SEVERANCE
AGREEMENT
This
Severance Agreement (this "Agreement") is executed by and between [Insert
Name of Executive Officer from Schedule 1 hereto]
("Employee") and XXX.xxx, Inc., ("XXX.xxx") (collectively the "parties"). In
consideration for the execution of this Agreement and the performance of the
terms and conditions herein, the parties agree as follows:
1. Severance.
In
consideration for Employee agreeing to the terms and conditions set out in
this
Agreement, XXX.xxx shall pay severance to Employee in the amount of [Insert
Severance Amount from Schedule 1 hereto],
less
applicable state and federal withholding taxes, plus an amount equal to six
(6)
months of COBRA costs (covering Employee as an individual), after Employee
executes this Agreement and returns the executed Agreement to XXX.xxx and after
Employee complies with paragraph 4 hereof.
2. Stock
Options.
Employee
will have whatever rights, if any, that the Employee has under XXX.xxx’s stock
option and employee stock purchase plans and related agreements as of the date
of termination of Employee’s employment with XXX.xxx.
3. Insurance.
Employee will receive all company provided insurance coverage through his last
date of employment, after which time Employee may elect COBRA.
4. Return
Of Property.
Employee shall immediately return to XXX.xxx all XXX.xxx property and all
tangible Confidential Information (as defined below) in Employee's possession,
custody, or control, including but not limited to keys, key cards, computer
equipment, computer disks or files, business information and records, and any
other such XXX.xxx property.
5. No
Further Payments.
XXX.xxx
will provide Employee with payment for any and all wages, compensation, vacation
and commissions through his last date of employment.
6. Release.
Employee releases and forever discharges XXX.xxx and its present and former
owners, boards, directors, officers, trustees, shareholders, employees, agents,
attorneys, representatives, successors and assigns, and present and former
parent, subsidiary, affiliated and related entities (collectively referred
to as
the "Released Parties"), and each of them, of and from any and all claims,
demands, actions, causes of action, charges, and complaints, and associated
costs, expenses, attorneys' fees, damages, injuries and losses, arising in
law,
equity or otherwise, of any and every kind, nature and character whatsoever,
whether known or unknown, unforeseen, unanticipated, unsuspected or latent,
which Employee and/or each of Employee's successors or agents now own or hold,
or have at any time heretofore owned or held, or may at any time own or hold,
by
reason of any matter or thing arising from any cause whatsoever prior to the
date of execution of this Agreement, including without limitation from all
claims in any way related to Employee's separation of employment from XXX.xxx.
Notwithstanding the foregoing, Employee does not release any claim or action
existing on or prior to the date hereof relating to workforce injury arising
from facts or circumstances sustained or occurring during the course of his
employment with XXX.xxx.
____________
Employee's
Initials
Exhibit
A
7. No
Further Claims.
Employee shall not file any charges against the Released Parties based on events
occurring prior to the date of execution of this Agreement with any state or
federal administrative agency, and shall immediately dismiss any such existing
claims, if any. Employee shall not institute a lawsuit in any state or federal
court based upon, arising out of, or relating to any claim, demand, or cause
of
action released herein. Employee shall not participate, assist, or cooperate
in
any third party’s claim, charge, suit, complaint, action or proceeding against
the Released Parties, unless and to the extent required or compelled by law.
Employee shall not encourage and/or solicit any third party to file any claim,
charge, suit, complaint, action or proceeding against the Released Parties.
8. No
Disclosure of Confidential Information.
Employee shall not any time use, divulge, disclose or communicate, either
directly or indirectly, in any manner whatsoever, any of XXX.xxx's Confidential
Information to any person or business entity, without the prior written
authorization of the President of XXX.xxx. As used herein, "Confidential
Information" shall refer to XXX.xxx's confidential and proprietary business
information concerning, without limitation, XXX.xxx's products, services,
customers, employees, pricing, marketing, costs, business affairs, selling
techniques, business agreements, customer agreements, operations, accounting
procedures, financial statements, inventions, research and development, product
designs, software programs, and any other similar information of any kind,
nature or description, in whatever form (the "Confidential Information"). The
Confidential Information is a valuable trade secret of XXX.xxx that shall remain
the sole and exclusive property of XXX.xxx.
9. No
Unfair Competition.
Employee shall not at any time (a) disclose any Confidential Information to
any
person or business entity which directly or indirectly competes with XXX.xxx,
and/or (b) use or disclose any Confidential Information to, directly or
indirectly or by action in concert with others, solicit, induce or influence,
or
seek to induce or influence, any customer of XXX.xxx for the purpose of
promoting or selling any products or services competitive with those of XXX.xxx
to such customer or inducing such customer to cease subscribing to services
from
XXX.xxx.
10. No
Solicitation.
For a
period of six (6) months following the date of this Agreement, Employee agrees
not to directly or indirectly provide services to, be employed by or serve
as a
director of any company that is a direct competitor of XXX.xxx or its
affiliates. In addition, for a period of two (2) years following the date of
this Agreement, Employee shall not directly or indirectly solicit, induce or
influence, or seek to induce or influence, any person who is engaged as a
regular, temporary, introductory, full-time or part-time employee, agent, or
independent contractor by XXX.xxx to terminate his or her employment or
engagement with XXX.xxx for any reason.
11. No
Disparagement.
Employee shall act in good faith towards the Released Parties so as not to
harm
their businesses in any way, and Employee shall not disparage the Released
Parties in any way.
12. References.
In
response to any inquiries from prospective employers, XXX.xxx will only provide
information concerning Employee's dates of employment and positions. Employee
will refer any such inquiries to XXX.xxx's Human Resources Department.
____________
Employee's
Initials
Exhibit
A
13. No
Workplace Injuries.
To
Employee’s knowledge, other than as described in writing in a schedule attached
hereto, Employee has not sustained any workplace injury of any kind during
employment with XXX.xxx.
14. Prior
Agreements.
This
Agreement does not alter, modify or impact the confidentiality provisions and
the restrictive covenants set forth in the Proprietary Information &
Inventions Agreement between the parties signed by Employee, nor does it affect
Employee’s obligation to strictly comply with those provisions and
covenants.
15. CONFIDENTIALITY.
EMPLOYEE SHALL NOT DISCLOSE, PUBLICIZE OR ALLOW OR CAUSE TO BE PUBLICIZED OR
DISCLOSED ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR THE EXISTENCE
OF
THE AGREEMENT ITSELF, UNLESS AND TO THE EXTENT REQUIRED OR COMPELLED BY LAW.
THIS PROVISION CONSTITUTES A MATERIAL TERM OF THIS AGREEMENT. THE FOREGOING
SHALL BE VOID IF XXX.XXX PUBLICLY DISCLOSES THE EXISTENCE OR TERMS OF THIS
AGREEMENT.
16. Arbitration.
Any
disputes concerning this Agreement shall be settled exclusively by binding
arbitration in Connecticut, before an experienced labor and employment law
arbitrator mutually agreed upon by the parties. If the parties cannot agree
upon
an arbitrator, one will be selected in accordance with the rules of Judicial
Arbitration and Mediation Services, Inc. (“JAMS”). The arbitrator in this matter
shall not have the power to modify any of the provisions of this Agreement.
The
arbitrator's decision shall be final and binding upon the parties, and judgment
upon the award rendered by the arbitrator may be entered in any court having
jurisdiction. The parties will evenly split the cost of the arbitrator's fee.
The arbitrator must award attorney's fees and costs to the prevailing party
in
the arbitration.
17. Notices.
All
notices and other communications provided for hereunder shall be in writing
and
shall be delivered to each party hereto by personal delivery, by priority
overnight delivery sent via a nationally recognized courier (charges for the
account of sender), by facsimile transmission or by registered or certified
U.S.
mail, return receipt requested, addressed as follows:
____________
Employee's
Initials
Exhibit
A
if
to XXX.xxx, to:
XXX.xxx,
Inc.
00
Xxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx,
XX 00000
Attn:
Chief Executive Officer
Facsimile:
000-000-0000
Telephone:
000-000-0000
and,
if
to Employee, to Employee’s latest residence address most recently on file with
XXX.xxx
or
to
such other address as either party may specify by notice to the other party
given as aforesaid. Such notices shall be deemed to be effective three (3)
business days after the same shall have been deposited, postage prepaid, in
the
U.S. mail, upon personal delivery, if the same shall have been delivered by
hand, one (1) business day after deposit with such overnight courier, if sent
via priority overnight delivery, or upon receipt of electronic facsimile
confirmation, as the case may be. As used herein, a “business day” shall mean
any weekday other than a Federal U.S. holiday or day on which banks in the
State
of Connecticut are authorized to close. The parties shall use commercially
reasonable best efforts to apprise each other of any address changes during
the
operative term of this Agreement.
18. Miscellaneous.
XXX.xxx
agrees that, if Employee’s employment is terminated for any reason, Employee is
not required to seek other employment or to attempt in any way to reduce any
amounts payable to Employee by XXX.xxx hereunder. Further, the amount of any
payment provided hereunder shall not be reduced by any compensation earned
by
Employee. Each of Employee and XXX.xxx has full authority to enter into this
Agreement and to be bound by it. Employee is voluntarily entering into this
Agreement free of any duress or coercion. Employee has had the opportunity
to
consult legal counsel of Employee's own choosing with respect to the execution
and legal effect of this Agreement. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors
and
assigns. This Agreement contains all terms and conditions pertaining to the
compromise and settlement of the claims released herein, and no promise or
representation not contained in this Agreement has been made to Employee by
the
Released Parties. This Agreement supersedes all previous written or oral
agreements between Employee and the Released Parties. This Agreement cannot
be
modified in any respect except in a written instrument signed by both Employee
and XXX.xxx. In the event that any provision of this Agreement is held to be
void, null or unenforceable, the remaining portions shall remain in full force
and effect. Any uncertainty or ambiguity in the Agreement shall not be construed
for or against any party based on the attribution of drafting to any party.
This
Agreement may be executed by the parties in any number of counterparts, which
are defined as duplicate originals, all of which taken together shall be
construed as one document. This Agreement shall be construed and governed by
the
laws of the State of Connecticut, without regard to its conflicts of laws
principles.
19. Consideration
Period and Advice of Counsel.
Employee
is being informed that Employee has or may have specific rights and/or claims
under the Age
____________
Employee's
Initials
Exhibit
A
Discrimination
in Employment Act, as amended, including by the Older Workers Benefit Protection
Act (the "ADEA"). In connection with the ADEA, Employee acknowledges that he
has
been afforded twenty-one (21) days to consider this Agreement, its benefits
and
its consequences. He understands that he has the option of signing this
Agreement at any time before the end of the twenty-one (21) day period, but
that
any election to do so is completely within his discretion. Employee further
acknowledges that he has been advised that he may seek the advice of an attorney
before signing this Agreement, and that he has had a full and adequate
opportunity to do so.
20. Revocation
Period.
It is
understood and agreed by Employee that he will have seven (7) days after signing
this Agreement to revoke it. The Agreement will not become effective and
enforceable until this revocation period has expired. No payment to Employee
under Section 2 above will be due until four (4) business days after the
Agreement becomes effective and enforceable.
PLEASE
READ CAREFULLY. THIS AGREEMENT INCLUDES A RELEASE OF CERTAIN KNOWN AND UNKNOWN
CLAIMS.
DATED:_____________________ ______________________________________
[Insert Name of Executive Officer from Schedule 1 hereto]
DATED:_____________________ ______________________________________
For XXX.xxx, Inc.
____________
Employee's
Initials
Schedule
1 to Exhibit 10.8 to 8-K
Executive
Officers Subject to Retention Agreements & Severance Amounts
|
Name:
|
Title:
|
Severance
Amount:
|
|
Xxxx
Xxxxxxxx
|
S.V.P.
- Corporate Affairs, General Counsel & Secretary
|
$87,500
|
|
Xxxxxx
Xxxxxx
|
Chief
Financial Officer & Treasurer
|
$100,000
|
