Exhibit 10.34
EMPLOYMENT AGREEMENT
AGREEMENT by and between Fibernet Telecom Group, Inc., a Delaware
corporation (the "Company"), and Xxxxx Xxxxxx (the "Executive"), dated as of the
23/rd/ day of May, 2000.
WHEREAS, the Company has determined to secure the services of the Executive
on a full-time basis in the position, and for the period set forth below, and
the Executive desires to serve in such capacity.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, the parties hereto agree as follows:
1. Employment Period. The Company shall employ the Executive, and the
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Executive shall serve the Company, on the terms and conditions set forth in this
Agreement, for the period commencing on May, 26, 2000, and ending on May, 25,
2002 (the "Employment Period"). The parties agree to commence negotiations to
extend the Employment Period on terms mutually satisfactory to the parties no
later than December 1, 2001 and to conclude such negotiations by March 1, 2002;
provided that if no agreement is reached, this Agreement shall remain in full
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force through the Employment Period. If the Company elects to employ the
Executive after the Employment Period he shall be an at-will employee and he
shall agree to execute a form of non-competition agreement containing provisions
similar to Section 6 hereof.
2. Position and Duties. (a) The Executive shall serve as Senior Vice
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President - Engineering of the Company, reporting to the Executive Vice
President or Chief Operating Officer of the Company, with such duties and
responsibilities as are customarily assigned to such position, and such other
duties and responsibilities not inconsistent therewith as may be assigned to the
Executive from time to time by the Company.
(b) During the Employment Period, and excluding any periods of
vacation and sick leave to which the Executive is entitled, the Executive shall
devote his full business time and efforts to the business and affairs of the
Company and use his best efforts to carry out such responsibilities faithfully
and efficiently. During the Employment Period, the Executive shall not be
engaged in any other business activity without the prior written consent of the
Company except for time spent in managing his personal, financial and legal
affairs, in each case only if, and to the extent that, such activities do not
interfere with the performance of the Executive's duties and responsibilities
hereunder.
(c) The Executive's services shall be performed at the Company's
headquarters in New York City, subject to such business travel as may be
required from time to time. During the second year of the Employment Period
(5/31/2001-5/31/2002), the Executive shall be expected to conduct a significant
amount of business outside of New York City, as directed by the Company. No
later than the end of the first year of the Employment Period, the Company shall
review with the Executive the feasibility of opening a regional
office in the Washington, D.C. metropolitan area (the "Washington Regional
Office") and permitting the Executive to perform services out of that office, in
such manner as the Company may approve; it being understood that the Company
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shall have the sole discretion to determine whether to in fact establish a
Washington Regional Office.
3. Compensation. (a) Base Salary. During the Employment Period, the
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Executive shall receive a base salary (the "Annual Base Salary") at the annual
rate of $225,000. The Annual Base Salary shall be payable in accordance with the
Company's payroll practices as in effect from time to time, subject to
applicable taxes and withholding. During the Employment Period, the Annual Base
Salary shall be reviewed for possible merit increases at least annually.
(b) Signing Bonus. The Executive shall receive $30,000 as a bonus
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("Signing Bonus") for executing this Agreement, payable within 30 days of the
commencement of his employment.
(c) Annual Bonus. For each calendar year or portion of a calendar
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year during the Employment Period, the Executive shall be eligible to earn an
annual performance bonus consisting of cash and/or stock options (the "Annual
Bonus") based on such performance goals and targets and in such amounts as the
Company may in its sole discretion establish. The first Annual Bonus shall be
payable during January, 2001 and in accordance with the terms of the management
incentive program then applicable to the Executive. Successive Annual Bonuses
shall be awarded/payable each January thereafter. Stock options awarded
pursuant to this section shall vest no later than the end of the Employment
Period.
(d) Benefits. During the Employment Period, the Executive and/or the
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Executive's family, as the case may be, shall be provided with such employee
benefits, and under the same terms, as are provided by the Company from time to
time to its senior executives generally. In addition, the Company agrees to
procure and pay the premiums on a term life insurance policy in the amount of
$1,000,000 on behalf of the Executive, subject to Executive satisfying certain
customary insurability, health and risk criteria in connection with securing
such policy and executive remaining responsible for all income taxes associated
with such policy.
(e) Expenses. During the Employment Period, the Executive shall be
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entitled (i) to receive prompt reimbursement for all reasonable expenses
incurred by the Executive in carrying out the Executive's duties under this
Agreement, provided that the Executive complies with the policies, practices and
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procedures of the Company for submission of expense reports, receipts, or
similar documentation of such expenses, and (ii) to have access rent-free to a
corporate apartment maintained by the Company in New York City (in size and
style comparable to the corporate apartments made available other Executives).
(f) Options. The Executive shall be entitled to receive options to
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purchase 275,000 shares (the "Options") of the Company's common stock, $.001 par
value per share ("Common Stock") with an exercise price equal to (x) the lesser
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of the Fair Market Value of
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the Common Stock on the date the Executive actually commences employment at the
Company or $11 per share in the case of any non-qualified stock options and (y)
the Fair Market Value of the Common Stock in the case of incentive stock
options, pursuant to the terms of the Company's 1999 Stock Option Plan, as
amended (the "Option Plan"). For the purposes of this Section, Fair Market Value
shall be determined as of the date the Executive actually commences employment
at the Company (the "Commencement Date"). All Options shall be subject to the
execution by the Company and the Executive of a stock option agreement in form
satisfactory to the Company and consistent with the terms hereof. That portion
of the Options relating to 50,000 shares shall vest (and therefore, become
exercisable) as of the Commencement Date; provided that such Options shall be
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canceled in their entirety, and any shares realized upon the exercise of such
Options shall be tendered back to the Company and retired immediately without
any payment to the Executive, if the Executive resigns without Good Reason (as
defined below) within 90 days of the Commencement Date or is terminated by the
Company for Cause (as defined below); provided further that no such cancellation
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or tender back shall occur upon the Executive's death. The remaining 225,000
Options issued under this Section 3(e) shall vest in two equal installments on
the first and second anniversary of the Commencement Date, that is with 50% of
such Options vesting one year from the Commencement Date (provided that the
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Executive remains employed in good standing as of such date) and the remaining
50% of such Options vesting two years from the Commencement Date (provided that
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the Executive remains employed in good standing as of such date). The Options
shall consist of qualified "Incentive Stock Options" to the maximum extent
permitted by law, with the remainder consisting of non-qualified stock options.
The Company agrees that to the extent the fair market value exercise price on
any incentive stock option granted as part of the Option is in excess of $11.00
per share, the Company shall grant the Executive an additional number of non-
qualified stock options as part of the Option, in the amount and manner as
provided for in Annex A.
(g) If the Executive's employment is terminated during the Employment
Period pursuant to a termination for Cause or if the Executive resigns without
Good Reason during the Employment Period, all of the then unvested Options shall
immediately be canceled. Any vested and unexercised Options shall be exercisable
for a period of 30 days following the Executive's termination or resignation.
If the Executive is terminated by the Company without Cause during the
Employment Period or otherwise, or resigns for Good Reason (as defined below),
during the Employment Period or otherwise, the Options shall be dealt with as
provided for in Section 5 below. In any case, and notwithstanding any provision
of this Agreement to the contrary, (i) the terms and conditions of any Incentive
Stock Options shall be governed in full by the relevant provision of the
Internal Revenue Code and related law and the relevant provisions of the Option
Plan and corresponding Stock Option Agreement and (ii) the terms of the other
Options shall be governed by the relevant provisions of the Option Plan and
corresponding Stock Option Agreement (including, without limitation, in the
event of the Executive's termination of employment due to his death or
Disability).
(h) The Company shall reimburse the Executive for reasonable legal
expenses incurred by the Executive in connection with negotiating this
Agreement, up to a maximum of $2,500.
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4. Termination of Employment. (a) Death or Disability. The Executive's
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employment shall terminate automatically upon the Executive's death during the
Employment Period. The Company shall, to the full extent permitted by law, be
entitled to terminate the Executive's employment because of the Executive's
"Disability" (as herein defined) during the Employment Period. "Disability"
means that the Executive has been unable, for a period of four months, or for a
total of 120 days in any given period of twelve months, to perform the
Executive's duties under this Agreement, as a result of physical or mental
illness or injury.
(b) By the Company. (i) The Company may terminate the Executive's
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employment during the Employment Period for Cause or without Cause. For
purposes of this Agreement, the term "Cause" shall be defined as: (A) disloyalty
or dishonesty which results or is intended to result in personal enrichment to
Executive at the expense of the Company (including, without limitation, fraud,
embezzlement or dishonesty or breach of business ethics); (B) acts of moral
turpitude or illegal or unprofessional conduct which adversely and materially
affect the reputation of the Company and/or its relationship with its clients,
investors, employees shareholders; (C) fraudulent conduct in connection with the
material business or affairs of the Company; (D) the failure of the Executive to
perform his duties and obligations pursuant to this Agreement; conviction of a
felony or crime involving moral turpitude (or entering into a plea of nolo
contendere with respect to such crime); (E) gross misconduct; (F) failure to
perform at the level associated with satisfactory senior executive performance
as determined in good faith by the Company; (G) any breach or intended breach of
any Company policies or procedures as in effect from time to time, in each case
constituting a material violation of such policies or procedures; or (H) failure
by the Executive to provide 30 days advance written notice of resignation;
provided that in the case of subsections (D) and (F) of this Section 4(b), the
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Company shall give written notice to the Executive at least ten business days
prior to such termination of the Company's intent to terminate, which notice
shall set out in detail the ways in which Executive has failed to perform, and
Executive shall have failed to cure such failure prior to the expiration of such
ten business day period
(c) By the Executive for Good Reason. (i) For purposes of this
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Agreement, "Good Reason" means:
A. Any change in the Executive's title to one of lesser status;
B. any failure by the Company to comply with any provision of
Section 3 of this Agreement, other than failures that are not taken in bad faith
and are remedied by the Company within 20 business days after receipt of written
notice thereof from the Executive;
C. any failure by the Company to comply with Section 7 of this
Agreement; or
D. the Company's requiring the Executive to be based at any
office or location more than a reasonable commuting distance from the Company's
executive
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headquarters as of the date hereof, other than in connection with the Washington
Regional Office if the Company elects to establish one.
(ii) A termination of employment by the Executive for Good
Reason shall be effectuated by giving the Company written notice ("Notice of
Termination for Good Reason") of the termination, setting forth the conduct of
the Company that constitutes Good Reason. A termination of employment by the
Executive for Good Reason shall be effective on the next business day following
the date when the Notice of Termination for Good Reason is given.
(d) No Waiver. The failure to set forth any fact or circumstance in a
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Notice of Termination for Cause or a Notice of Termination for Good Reason shall
not constitute a waiver of the right to assert, and shall not preclude the party
giving notice from asserting, such fact or circumstance in an attempt to enforce
any right under or provision of this Agreement.
(e) Date of Termination. The "Date of Termination" means the date of
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the Executive's death, Disability, or the date on which the termination of the
Executive's employment by the Company for Cause or by the Executive for Good
Reason is effective, or the date on which the Company gives the Executive notice
of a termination of employment without Cause or the Executive gives the Company
notice of a termination of employment without Good Reason, as the case may be.
5. Obligations of the Company upon Termination. (a) Other Than for
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Cause, Death or Disability; Good Reason. If, during the Employment Period, the
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Company terminates the Executive's employment, other than for Cause or
Disability, or the Executive terminates his employment for Good Reason, the
Company shall pay the amounts, continue the benefits described and take the
action with respect to the Options, in each case as set forth subparagraph (i)
below. The payments and other provisions provided pursuant to this Section 5(a)
are intended as liquidated damages for the termination of the Executive's
employment by the Company other than for Cause or Disability or for the actions
of the Company leading to a termination of the Executive's employment by the
Executive for Good Reason and shall be the sole and exclusive remedy therefor;
provided further that as a condition precedent for such payments the Executive
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shall execute and deliver a general release of all claims against the Company,
in form and substance satisfactory to the Company.
(i) The amounts to be paid as described above are:
A. The Executive's earned and accrued but unpaid cash
compensation, in the form of a lump-sum payment, to be paid within 30 days after
the Date of Termination, which shall equal the sum of (1) any portion of the
Executive's Annual Base Salary earned through the Date of Termination that has
not yet been paid, (2) any unpaid Annual Bonus that was earned by the Executive
and declared due and owing by the Company; and (3) any accrued but unpaid
vacation time (but without giving effect to any carry-over of unused time from
prior years), in each case subject to applicable taxes and withholding (the
amounts set forth in subclauses (1)-(3) constitute the "Accrued Obligation").
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B. A payment, payable in accordance with the Company's
standard monthly payroll practices and subject to withholding and taxes, of an
amount equal the Executive's Annual Base Salary, determined on a monthly basis,
for a period of 6 months from the Date of Termination; provided, however, that
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if Executive becomes re-employed during the 6 month period, the Company's
obligations to make the payments set forth in this Paragraph B shall be offset
to the extent of the Executive's compensation in the new employment.
C. The benefits to be continued for up to 6 months from
the Date of Termination are group medical benefits to the Executive and/or the
Executive's family equivalent to those provided to the Executive under this
Agreement; provided, however, that during any period when the Executive is
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eligible to receive such benefits under another employer-provided plan, the
benefits provided hereunder shall terminate.
D. All the then unvested Options (including options
granted as an Annual Bonus) shall vest as of the date of termination and
Executive shall have 12 months from the Date of Termination (unless any
applicable Option Plan provision shall require a shorter period) to exercise
such options; provided that during such 12 month period the Executive otherwise
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complies with the provisions of the Agreement applicable to his post-termination
conduct.
(b) Death or Disability. If the Executive's employment is terminated
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by reason of the Executive's death or Disability during the Employment Period,
the Company shall pay the Accrued Obligations to the Executive or the
Executive's estate or legal representative, as applicable, in a lump-sum payment
(subject to applicable taxes and withholding) within 30 days after the Date of
Termination, and the Company shall have no further obligations under this
Agreement. In the event of the Executive's death or Disability, all of the
unvested Options shall be governed by the terms of the Option Plan and relevant
stock option agreement.
(c) Cause; Other than for Good Reason. If the Executive's employment
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is terminated by the Company for Cause during the Employment Period, or if the
Executive terminates his employment during the Employment Period other than for
Good Reason, the Company shall pay the Executive, in a lump-sum payment (subject
to applicable taxes and withholding) within 30 days of the Date of Termination,
any earned and unpaid Annual Base Salary through the Date of Termination, and
any Options held by the Executive shall be immediately canceled as provided for
in Section 3(g) hereof, and the Company shall have no further obligations under
this Agreement.
6. Confidential Information; Noncompetition; Work Product. The Executive
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acknowledges that his employment by the Company will, throughout the Employment
Period bring him into close contact with the confidential affairs of the
Company, including information about customers, costs, profits, real estate,
markets, sales, products, key personnel, pricing policies, operational methods,
technical processes and other business affairs and methods and other information
not readily available to the public, and plans for future
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development. The Executive further acknowledges that the services to be
performed under this Agreement are of a special, unique, unusual, extraordinary
and intellectual character. The Executive further acknowledges that the business
of the Company is international in scope, that its products are marketed
throughout the world, that the Company competes in nearly all of its business
activities with other entities that are or could be located in nearly any part
of the world and that the nature of the Executive's services, position and
expertise are such that he is capable of competing with the Company from nearly
any location in the world. In recognition of the foregoing, the Executive
covenants and agrees:
(a) The Executive, at all times during the Employment Period and
thereafter, shall hold in a fiduciary capacity for the benefit of the Company
all secret, trade, proprietary or confidential information, knowledge or data
relating to the Company or any of its affiliated companies and shareholders, and
their respective businesses, that the Executive obtains during the Executive's
employment by the Company or any of its affiliated companies and that is not
public knowledge (other than as a result of the Executive's violation of this
Section 6(a)) ("Confidential Information"). The Executive shall not
communicate, divulge or disseminate Confidential Information at any time during
or after the Executive's employment with the Company, except with the prior
written consent of the Company or as otherwise required by law or legal process.
The Executive shall deliver promptly to the Company on termination of the
Executive's employment by the Company, or at any other time the Company may so
request, at the Company's expense, all memoranda, notes, records, reports and
other documents (and all copies thereof) relating to the Company's business,
which the Executive obtained while employed by, or otherwise serving or acting
on behalf of, the Company and which the Executive may then posses or have under
the Executive's control.
(b) During the "Noncompetition Period," the Executive shall not,
without the prior written consent of the Board, engage in or become associated
with a "Competitive Activity." For purposes of this Section 6: (i) the
"Noncompetition Period" means the period commencing on the Commencement Date and
ending on the 6-month anniversary of the date upon which Executive's employment
with the Company is terminated for any reason; (ii) a "Competitive Activity"
means any business or other endeavor that engages in any geographic location in
the construction, installation, servicing or operation of in-building fiber
communications and/or in-building fiber transmission networks or any business
that offers wholesale fiber optic metropolitan transport as its primary
business; or any business, to the knowledge of the Executive, that the Company
has definitive plans to engage in and such prospective business shall have a
material impact on the Company's revenues; and (iii) the Executive shall be
considered to have become "associated with a Competitive Activity" if the
Executive becomes directly or indirectly involved as an owner, investor, (other
than a stockholder of less than 5% of a corporation the securities of which are
traded on a national securities exchange), employee, officer, director,
consultant, independent contractor, agent, partner, advisor, or in any other
capacity calling for the rendition of the Executive's personal services, with
any individual, partnership, corporation or other organization that is engaged
directly or indirectly in a Competitive Activity.
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(c) During the Noncompetition Period, the Executive shall not, on his
or her own behalf or on behalf of any other person, firm or entity (x) directly
or indirectly solicit, induce or attempt to solicit or induce any employee of
the Company to terminate his or her employment with the Company, or to provide
any assistance whatsoever to any person, firm or entity engaged in a Competitive
Activity, (y) employ, or cause any business or entity with which Executive is
affiliated to employ, any person who was a full-time executive employee of the
Company at the Executive's Date of Termination or six months prior to such date
or (z) directly or indirectly induce any business, entity or person with which
the Company or any of its subsidiaries or affiliates has a business relationship
to terminate or alter such business relationship.
(d) In addition to such other rights and remedies as the Company may
have at equity or in law with respect to any breach of this Agreement, if the
Executive commits a material breach of any of the provisions of Section 6, the
Company shall have the right and remedy to have such provisions specifically
enforced by any court having equity jurisdiction (without any obligation to post
a bond or other security); it being acknowledged and agreed that any such breach
or threatened breach will cause irreparable injury to the Company and that money
damages alone will not provide an adequate remedy to the Company.
(e) The Executive acknowledges that during the Employment Period, the
Executive may conceive of, discover, invent or create inventions, improvements,
new contributions, literary property, computer programs and software material,
ideas and discoveries, whether patentable or copyrightable or not (all of the
foregoing being collectively referred to herein as "Work Product"), and that
various business opportunities shall be presented to the Executive by reason of
the Executive's employment by the Company. The Executive acknowledges that all
of the foregoing shall be owned by and belong exclusively to the Company and
that the Executive shall have no personal interest therein, provided that they
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are either related in any manner to the business (commercial or experimental) of
the Company, or are, in the case of Work Product, conceived or made on the
Company's time or with the use of the Company's facilities or materials, or, in
the case of business opportunities, are presented to the Executive for the
possible interest or participation of the Company. The Executive shall (i)
promptly disclose any such Work Product and business opportunities to the
Company; (ii) assign to the Company, upon request and without additional
compensation, the entire rights to such Work Product and business opportunities;
(iii) sign all papers necessary to carry out the foregoing; and (iv) give
testimony in support of the Executive's inventorship or creation in any
appropriate case. The Executive agrees that the Executive will not assert any
rights to any Work Product or business opportunity as having been made or
acquired by the Executive prior to the date of this Agreement except for Work
Product or business opportunities disclosed on Exhibit A to this Agreement.
(f) The Executive acknowledges and agrees that the provisions of this
Section 6 are necessary to protect the business operations and affairs of the
Company. The Executive understands that the restrictions set forth in this
Agreement may limit his ability to earn a livelihood in a business similar that
of the Company, but he nevertheless believes that he has received and will
receive sufficient consideration and other benefits as an employee of the
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Company to justify clearly such restrictions which, in any event (given his
education, skills and ability), the Executive does not believe would prevent him
from earning a livelihood.
7. Successors. (a) This Agreement is personal to the Executive and,
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without the prior written consent of the Company, shall not be assignable by the
Executive otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns, and may be assigned by Company in
connection with any sale, transfer or other disposition of all or substantially
all of its business and assets.
(c) The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company expressly to
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would have been required to perform it if no such
succession had taken place. As used in this Agreement, "Company" shall mean both
the Company as defined above and any such successor that assumes and agrees to
perform this Agreement, by operation of law or otherwise.
8. Indemnification. The Executive shall be entitled throughout the
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Employment Period in the capacity as an officer or director of the Company or
any of its subsidiaries, or as a member of any other governing body or any
partnership or joint venture in which the Company has an equity interest (and
after the term of employment, to the extent relating to any continued service as
such officer, director or member) to the benefit of the indemnification
provisions contained on the date hereof in the Certificate of Incorporation and
By-Laws of the Company (not including any amendments or additions after the date
of execution hereof that limit or narrow, but including any that add to or
broaden, the protection afforded to the Executive by those provisions), to the
extent not prohibited by applicable law at the time of the assertion of any
liability against the Executive.
9. Post-Termination Assistance. After the termination of the Executive's
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employment for any reason, for so long as the Executive is receiving any
payments pursuant to this Agreement, the Executive shall cooperate, at the
reasonable request of the Company (i) in the transition of any matter for which
the Executive had authority or responsibility during the Employment Period, or
(ii) with respect to any other matter involving the Company for which the
Executive may be of assistance. Executive's obligations pursuant to this
Section 9 will not require him to devote more than 16 hours in any 30 day period
to Company matters or to incur any costs or expenses.
10. Miscellaneous. (a) This Agreement shall be governed by, and construed
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in accordance with, the laws of the State of New York, applicable to agreements
made and to be performed entirely within such state. The captions of this
Agreement are not part of the provisions hereof and shall have no force or
effect. This Agreement may not be amended or
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modified except by a written agreement executed by the parties hereto or their
respective successors and legal representatives.
(b) All notices and other communications under this Agreement shall
be in writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Executive, to the Executive's address
as maintained by the Company.
If to the Company:
FiberNet Telecom Group, Inc,
000 Xxxxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxx, XX 000000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: President
or to such other address as either party furnishes to the other in writing in
accordance with this Section 10. Notices and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement. If any provision of this Agreement shall be held invalid or
unenforceable in part, the remaining portion of such provision, together with
all other provisions of this Agreement, shall remain valid and enforceable and
continue in full force and effect to the fullest extent consistent with law, and
the invalid or unenforceable provision shall be deemed to have been redrafted as
if in the original, so as to be valid and enforceable to the maximum extent
permissible under applicable law.
(d) Notwithstanding any other provision of this Agreement, the
Company may withhold from amounts payable under this Agreement all federal,
state, local and foreign taxes that are required to be withheld by applicable
laws or regulations.
(e) The failure of the Executive or the Company to insist upon strict
compliance with any provision of, or to assert any right under, this Agreement
shall not be deemed to be a waiver of such provision or right or of any other
provision of or right under this Agreement.
(f) The Executive and the Company acknowledge that this Agreement
represents the complete agreement between the parties and supersedes any other
agreement between them concerning the subject matter hereof. This Agreement may
not be modified except by express written agreement between the parties.
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(g) This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, and which together shall constitute one
instrument.
(h) Whenever this Agreement provides for any payment to the
Executive's estate, such payment may be made instead to such beneficiary or
beneficiaries as the Executive may designate by written notice to the Company.
The Executive shall have the right to revoke any such designation and to
redesignate a beneficiary or beneficiaries by written notice to the Company (and
to any applicable insurance company) to such effect.
(i) The Executive represents and warrants to the Company that this
Agreement is legal, valid and binding upon the Executive and the execution of
this Agreement and the performance of the Executive's obligations hereunder does
not and will not constitute a breach of, or conflict with the terms or
provisions of, any agreement or understanding to which the Executive is a party
(including, without limitation, any other employment agreement). The Company
represents and warrants to the Executive that this Agreement is legal, valid and
binding upon the Company and the execution of this Agreement and the performance
of the Company's obligations hereunder does not and will not constitute a breach
of, or conflict with the terms or provisions of, any agreement or understanding
to which the Company is a party.
(j) Neither the Executive, his legal representative nor any
beneficiary designated by the Executive shall have any right, without the prior
written consent of the Company, to assign, transfer, pledge, hypothecate,
anticipate or commute to any person or entity any payment due in the future
pursuant to any provision of this Agreement, and any attempt to do so shall be
void and shall not be recognized by the Company.
(k) Each party (a) hereby irrevocably submits itself to and
acknowledges and recognizes the jurisdiction of the courts of the State of New
York in the Borough of Manhattan or in the United States District Court for the
Southern District of New York (which courts, together with all applicable
appellant courts, for purposes of this Agreement, are the only "courts of
competent jurisdiction"), for the purpose of any suit, action or other
proceeding arising out of, under, or in connection with, relating to, or based
upon this Agreement (b) agrees that any service of process in connection with
any such suit, action or other proceeding may be made upon it by means of the
United States mail or such other service as may be authorized by any such court,
(c) agrees that the courts of competent jurisdiction shall be the sole and
exclusive courts and forums for the purpose of any such suit, action or
proceeding (d) waives and agrees not to assert, by way of motion, as a defense,
or otherwise, in any such suit, action or proceeding, any claim that it is not
subject to the jurisdiction of courts of competent jurisdiction, that such suit,
action or proceeding is brought in an inconvenient forum, that the venue of the
suit, action or proceeding is improper or that this Agreement or the subject
matter hereof may not be enforced in or by such court and (e) irrevocably waives
any right to a trial before a jury. Each party agrees that its submission to
jurisdiction and its consent to service of process by mail is made for the
express benefit of the other party.
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(l) Each of the parties has been represented by counsel (or has had
the opportunity to be so represented) in the negotiation and preparation of this
Agreement. The parties agree that this Agreement is to be construed as jointly
drafted. Accordingly, this Agreement will be construed according to the fair
meaning of its language, and the rule of construction that ambiguities are to be
resolved against the drafting party will not be employed in the interpretation
of this Agreement.
(m) Notwithstanding the expiration, non-renewal or termination of
this Agreement, the provisions of Sections (6), (6), (9) and (10) of the
Agreement shall continue in full force and effect and remain fully binding upon
the parties.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's
hand and, pursuant to the authorization of its Board of Directors, the Company
has caused this Agreement to be executed in its name on its behalf, all as of
the day and year first above written.
/s/ Xxxxx Xxxxxx
_____________________________
Xxxxx Xxxxxx
FiberNet Telecom Group, Inc.
By: /s/ Xxxxxxx X. Xxxx
__________________________
By: Xxxxxxx X. Xxxx
Title: President
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Annex A
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A. Identify the dollar difference between the actual Fair Market Value
exercise price of ISOs granted to the Executive as part of the Option and
$11.00 which shall be the "Incremental Exercise Price Per Share."
B. "Incremental Exercise Price Per Share" shall be multiplied by the total
number of ISO's granted to the Executive to arrive at a dollar value ("the
Aggregate ISO Makewhole Payment.")
C. The "Aggregate ISO Makewhole Payment" shall be divided by the Black Xxxxxx
value calculated by the Company and attributable to one non-qualified stock
option granted to the Executive, with an exercise price of $11.00, as part
of the Option.
D. The quotient derived from Step C above shall equal the number of additional
non-qualified stock options to be granted to the Executive, with an
exercise price of $11.00 as part of the option.
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