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Exhibit 10.6
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:
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
1
of the Company representing more than 50
percent of the combined voting power of the Company’s then
outstanding voting securities.
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).
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 disclo
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