Exhibit 10.17
AMENDMENT NO. 1 TO
EXECUTIVE PURCHASE
AGREEMENT
THIS AMENDMENT NO. 1 (this “
Amendment ”) to EXECUTIVE PURCHASE AGREEMENT (the
“ Agreement ”) is made as of May 28, 2003 by and
between Cbeyond Communications, Inc., a Delaware corporation (the
“ Company ”), and Richard J. Batelaan (“
Executive ”). Capitalized terms used but not otherwise
defined herein have the meanings given to them in the
Agreement.
In consideration of good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally
bound, agree as follows:
1. Amendment to Section 5(d) of
the Agreement . Section 5(d) of the Agreement is hereby
replaced in its entirety to read as follows:
(d) Noncompete . Executive
acknowledges and agrees with the Company that (i) in the course of
Executive’s employment with the Company Parties Executive
shall become familiar with the trade secrets of the Company Parties
and with other Confidential Information concerning the Company
Parties, (ii) Executive’s services to the Company Parties are
unique in nature and of an extraordinary value to the Company
Parties, and (iii) the Company Parties could be irreparably damaged
if Executive were to provide similar services to any person or
entity competing with any of the Company Parties or engaged in a
similar business. In consideration of good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Executive covenants and agrees with the Company that
during the period beginning on the date hereof and ending on the
first anniversary of the date of the termination of
Executive’s employment with the Company Parties (the “
Noncompete Period ”), Executive shall not, directly or
indirectly, either for himself or for or through any other Person,
participate in any business or enterprise conducting business in
any Covered MSA which provides or proposes to provide local, long
distance, internet access, or other data, voice or internet
services of the type any of the Company Parties provides or
proposes to provide as evidenced by a business plan which has been
approved by or submitted to the board of directors of the Company,
which in the case of a submitted business plan, has not been
rejected by the Company’s board of directors; provided
that after such termination of employment, nothing herein shall
prohibit Executive (1) from engaging in any activity in which he or
she did not engage on behalf of any of the Company Parties prior to
such termination of employment or (2) from entering into any
employment in, or with an employer that conducts business in, any
Covered MSA if Executive has not performed any services on behalf
of any of the Company Parties in such Covered MSA.
1
Without limiting the generality of
the foregoing, Executive agrees that, during the Noncompete Period,
Executive shall not compete against any of the Company Parties by
soliciting any customer or prospective customer of any of the
Company Parties in any Covered MSA with whom Executive had any
business dealings or contracts on behalf of any of the Company
Parties during the tw
