|
Exhibit
10.6.2
PAETEC CORP.
SENIOR OFFICER CONFIDENTIALITY,
NON-SOLICITATION,
NON-COMPETITION AND SEVERANCE AGREEMENT
This Senior Officer Confidentiality, Non-Solicitation,
Non-Competition and Severance Agreement (this "Agreement") is
entered into as of the date set forth on the signature page hereto
between PaeTec Corp., a Delaware corporation, including any and all
subsidiaries and affiliates of PaeTec Corp., including but not
limited to PaeTec Communications, Inc., as well as any successors
or assigns of PaeTec Corp. and/or its subsidiaries and affiliates
(collectively, the "Company"), and
("you").
WHEREAS, the Company now has and expects to develop confidential
and proprietary materials and highly sensitive information of
immeasurable value, which you recognize must be carefully protected
as set forth below for the Company to be successful;
NOW, THEREFORE, to induce the Company to continue to employ you,
and in consideration of your continued employment by the Company
and other good and valuable consideration as set forth below of
which you expressly acknowledge, the Company and you hereby agree,
intending to be legally bound, as follows:
1. Defined Terms.
For purposes of this Agreement, termination for "Cause"
shall mean termination of your employment with the Company due to:
(1) material failure or refusal to perform the duties assigned
to you, provided that the Company’s Chief Executive Officer
(or the Company’s Board of Directors if you are the
Company’s Chief Executive Officer) gives you a written notice
of your refusal to perform such duties or comply with such
direction and 20 days to remedy such refusal, and further provided
that such duties or directions are not inconsistent with those of
other individuals reporting directly to the Company’s Chief
Executive Officer or the Company’s Board of Directors,
(2) your refusal to follow the reasonable directives of the
Board of Directors or Chief Executive Officer of the Company,
provided that the Company’s Chief Executive Officer (or the
Company’s Board of Directors if you are the Company’s
Chief Executive Officer) gives you a written notice of your refusal
to perform such direction and 20 days to remedy such refusal, and
further provided that such directions are not inconsistent with
those of other individuals reporting directly to the
Company’s Chief Executive Officer or the Company’s
Board of Directors, or (3) conviction of a felony.
For purposes of this Agreement, a " Change of Control
Transaction " shall be deemed to have occurred if (a) a
transaction is made and consummated involving the sale of all or
substantially all of the Company’s assets, or the sale of a
majority of its outstanding shares, whether by way of merger,
consolidation, business combination or otherwise; or (b) a
tender offer or exchange offer is made and consummated in a
transaction for the ownership of securities of the Company
representing more than 50 percent of the combined voting power of
the Company’s then outstanding voting securities.
1
For purposes of this Agreement, "
Disability " means your "permanent and total disability"
within the meaning of Section 22(e)(3) of the Internal Revenue
Code of 1986, as now in effect or as hereafter amended.
For purposes of this Agreement, termination for "Good
Reason" shall mean termination of your employment with the
Company due to: (a) your assignment without your consent to a
position, responsibilities, or duties of a materially lesser status
or degree of responsibility than your position, responsibilities,
or duties as of the date of this Agreement; (b) any action by
the Company to reduce your base salary by any amount at any time;
(c) the relocation of the Company’s principal executive
offices outside the metropolitan Rochester, N.Y. area; (d) the
requirement by the Company that you be based anywhere other than
your current metropolitan location without your consent; or
(e) you electing, for any reason or for no reason at all, to
voluntarily resign from the Company at any time during the first
ninety (90) days after the date of closing of any Change of
Control Transaction (as that term is defined above).
2. Confidentiality.
You acknowledge that you will be provided access to Company
Confidential Information and will occupy a position of trust and
confidence with respect to the Company’s affairs and
business. "Company Confidential Information" includes, but is not
limited to, all information and materials related to existing
computer software and hardware, computer software and hardware in
any stage of research and development, research, business
procedures and strategies, marketing plans and strategies, customer
lists, financial data, technical and laboratory data and/or
specifications related to the Company’s products and
services, and any other information that is not generally known to
the public or within the industry in which the Company
competes.
You agree to take all reasonable steps to preserve the
confidential and proprietary nature of Company Confidential
Information and to prevent the inadvertent or accidental disclosure
of Company Confidential Information. You agree that during your
employment with the Company and thereafter, you will not use,
disclose, transfer, or remove from the Company’s premises any
Company Confidential Information other than as authorized by the
Company. You agree to return to the Company all Company
Confidential Information and copies thereof at any time upon the
request of the Company. Your obligations under this section
entitled "Confidentiality" shall continue after termination of your
Service to the Company.
You further agree not to disclose to the Company or use in the
Company’s business any idea, invention, work of authorship or
other information or material relating to the business of any third
person and intended by that person not to be disclosed to the
Company.
3. Non-Competition.
For a period of two years after termination or resignation of
your employment with the Company (regardless of the reason for your
termination or resignation), you shall not, directly or
indirectly:
|
|
a.
|
solicit or serve clients, customers, or employees
of the Company, whether for your own account or as an employee,
shareholder, partner, officer, member,
|
2
|
|
manager, director, consultant, or other
representative of any third party engaged in the competitive local
exchange telecommunications services business, in any geographical
area in which the Company is then conducting operations;
|
|
|
b.
|
direct any business from, o
|
|
