EXHIBIT 10.17
AMENDMENT NO. 1 TO
EMPLOYMENT AGREEMENT
AMENDMENT NO. 1 (the "Amendment"), dated as of November 30, 2000
effective as of September 1, 2000 by and between METROMEDIA FIBER NETWORK, INC.,
a Delaware corporation having its principal offices at 000 Xxxxxxxx Xxxxxx,
Xxxxx Xxxxxx, Xxx Xxxx 00000 (the "Company"), and Xxxxxx Xxxxxxxxx, residing at
00 Xxx Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxx 00000 (the "Executive").
WHEREAS, the Company and Executive entered into an Employment
Agreement, dated as of August 31, 1998 (the "Employment Agreement"); and
WHEREAS, THE COMPANY AND EXECUTIVE DESIRE TO AMEND THE EMPLOYMENT AGREEMENT AS
PROVIDED HEREIN;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree to
amend the Employment Agreement as follows:
1. EMPLOYMENT; TERM.
(a) The words "Vice President" appearing in Section 1(a) of the
Employment Agreement shall be deleted and replaced with the words
"Senior Vice President, Chief Financial Officer".
(b) The date "January 7, 2002" appearing in Section 1(b) of the
Employment Agreement shall be deleted and replaced with the date
"September 30, 2002".
2. COMPENSATION.
(a) The words "Two Hundred Thousand ($200,000) Dollars" appearing in
Section 3(a) of the Employment Agreement shall be deleted and replaced
with the words "Two Hundred Fifty Thousand ($250,000) Dollars".
(b) The number "20" appearing in the third sentence of Section 3(b) of
the Employment Agreement shall be deleted and replaced with the number
"40".
(c) The last sentence of Section 3(b) shall be deleted in its entirety.
3. STOCK OPTIONS; ACCELERATION. Section 4 of the Employment Agreement
shall be deleted in its entirety and replaced with the following:
4. STOCK OPTIONS; ACCELERATION. The Company and Employee acknowledge and
agree that, in accordance with the terms and conditions set forth in
certain stock option agreements Employee executed with the Company (the
"Current Stock Option Agreements"), the Compensation Committee granted
to Employee under the Company's 1997 Incentive Stock Plan (the "1997
Plan") and/or the Company's 1998 Incentive Stock Plan (the "1998 Plan")
stock options to purchase shares of the Company's Class A common stock
(the "Effected Options").
As additional consideration for the continued employment of Employee
with the Company pursuant to this Agreement:
(i) The Employee shall be entitled to receive under the 1998 Plan,
an option to purchase 75,000
shares of the Company's Class A common stock (the "New
Option"). The New Option shall bear an exercise price equal to
the fair market value on the date of grant or as otherwise
determined by the Compensation Committee in accordance with
the 1998 Plan. The New Option shall be granted pursuant to the
1998 Plan and on such terms and conditions as set forth in an
agreement to be entered into between Employee and the Company
(the "New Stock Option Agreement"); and
(ii) In the event of the termination of the Employee's employment
hereunder without "Cause" (as such term is defined herein)
within twelve months after a "Change in Control" (as such term
is defined in the 1997 Plan or the 1998 Plan), then to the
extent any Effected Option (including the New Option) has not
automatically become exercisable in accordance with its terms
by reason of such Change in Control, the Employee shall have
the right to exercise in full, at anytime after such
termination any outstanding and unvested Effected Option
(including the New Option), notwithstanding any waiting
period, installment period or other limitation or restriction
in the 1997 Plan or 1998 Plan, the Current Stock Option
Agreements or New Stock Option Agreement. Except as
specifically provided herein, nothing contained in this
Agreement shall be deemed to modify in any respect the terms,
provisions, or conditions of the Current Stock Option
Agreements and such terms, provisions and conditions of those
agreements shall remain in full force and effect.
(iii) The Company shall recommend to the Board of Directors of the
Company, that any stock options to purchase shares of the
Company's Class A common stock granted after the date hereof
that are outstanding on the date of a Change in Control, shall
be exercisable in full upon the termination of the Employee's
employment hereunder without "Cause" within twelve months
after such Change in Control, notwithstanding any waiting
period, installment period or other limitation or restriction
in the 1998 Plan or any stock option agreement entered into in
connection with any subsequent stock option grant or grants."
5. RELOCATION. Section 6 of the Employment Agreement shall be amended by
adding the following as Section 6(d):
"If, upon a Change of Control (as such term is defined in the
1998 Plan) during the Term, the Company, including any successor
company, requests that the Executive perform his duties hereunder on a
regular, full-time basis at a location further than 75 miles away from
the Executive's then current principal office location, the Executive
may, in his sole discretion, refuse to relocate to such new offices and
may terminate his employment with the Company by written notice to the
Company. If the Executive provides such notice of termination to the
Company the Executive shall be entitled to a severance payment from the
Company in an amount to be determined pursuant to the terms of Section
8 hereof and shall be entitled to the accelerated vesting of stock
options as set forth in Section 4 hereof. If the Executive agrees to
relocate and to perform his duties at a location further than 75 miles
away from the Executive's then current principal office location, then
the Company shall reimburse the Executive for the reasonable relocation
expenses incurred by the Executive in connection with any relocation
from his residence as of the date hereof. Notwithstanding the
foregoing, however, it is contemplated that the Executive may be
required to engage in significant travel, domestic and international,
in connection with the performance of his duties hereunder, and such
travel shall not be deemed to trigger the Company's obligations under
this Section 6(d)".
6. TERMINATION. Section 7(b) of the Agreement shall be deleted in its
entirety.
7. ENTIRE AGREEMENT. Except as expressly set forth in this Amendment, the
Employment Agreement shall remain in full force and effect and together
with this Amendment shall constitute the entire agreement between the
Company and the Executive with respect to the subject matter set forth
therein and herein and supersede all prior agreements between such
parties with respect to such subject matter.
8. AMENDMENT. This Amendment may not be amended, changed, modified or
discharged except by an instrument in writing executed by or on behalf
of the party or parties against whom any amendment, change,
modification or discharge is sought to be enforced.
9. GOVERNING LAW. This Amendment shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York.
10. COUNTERPARTS. This Amendment may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
METROMEDIA FIBER NETWORK, INC.
By: /s/ Xxxxxxxx X. Xxxxx
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Name: Xxxxxxxx X. Xxxxx
Title: President and Chief
Operating Officer
By: /s/ Xxxxxx Xxxxxxxxx
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Xxxxxx Xxxxxxxxx
