Exhibit 10.35
FOURTH AMENDMENT TO EMPLOYMENT AGREEMENT
This is the fourth amendment (the "Fourth Amended Agreement") to that certain
Amended Employment Agreement dated as of the 8th day of August, 2000 (the
"Agreement"), the First Amended Agreement dated as of September 20, 2002 (the
"First Amended Agreement"), the Second Amended Agreement dated as of March 19,
2003 (the "Second Amended Agreement"), and the Third Amended Agreement dated as
of June, 2003 (the "Third Amended Agreement") between Mpower Communications
Corp., a Nevada corporation (the "Company") and Xxxxxx X. Xxxxxx ("Executive")
(collectively, the "Agreements").
The Company and Executive, for and in consideration of the promises, terms and
conditions contained herein, do hereby agree to make the following amendments to
the Agreements.
1. Notwithstanding anything contained in the Agreements to the contrary, the
Company shall pay to the Executive, on or before December 31, 2003, the amount
of $14,405.63, less customary withholdings, representing all income taxes the
Executive will have to pay on any relocation/housing/travel monies paid by the
Company to the Executive for both himself and his wife, Xxxxxx Xxxxxx, in 2003.
Adjustments will be made immediately if in fact the taxes paid are greater or
less than $14,405.63.
2. Notwithstanding anything contained in the Agreements to the contrary, the
Company shall pay to the Executive an additional sum of $15,735.64, less
customary withholdings, representing reimbursement to the Executive for any and
all expenses related to his rental residence in Las Vegas, Nevada through the
expiration of his present lease, with the parties recognizing that this sum has
already been grossed up for taxes. Adjustments will be made immediately if in
fact the taxes paid are greater or less than $5,735.64.
3. Notwithstanding anything contained in the Agreements to the contrary, the
parties agree that except as set forth herein, and pursuant to the Company's
existing reimbursement policies with respect to the Executive's travel in the
ordinary course of business, no additional amounts will be paid to the Executive
in 2004 for either his travel or the travel of his wife, Xxxxxx Xxxxx.
4. At the expiration of his present lease of his rental residence, the security
deposit of $2,000, less any deductions made by the landlord, shall be returned
to the Company.
5. Notwithstanding anything contained in the Agreements to the contrary, in the
event the Executive purchases a residence in Las Vegas, Nevada when his lease
expires, the Company shall pay all closing costs with respect to the purchase of
that property, and all reasonable and customary moving expenses with respect to
any furniture or other personal belongings moved by the Executive at that time
from Denver, Colorado to Las Vegas, Nevada. The parties agree that this
provision is in lieu of all other rights the Executive has with respect to any
and all Company relocation policies presently in effect.
6. Notwithstanding anything contained in the Agreements to the contrary, if the
Executive's employment with the Company is terminated pursuant to 4.02 of the
Third Amended Agreement, and a result of that termination of employment, the
Executive notifies the Company within six (6) months of the termination that the
residential property referred to in paragraph 5 above has been listed for sale,
the Company will pay reasonable closing costs with respect to any such sale
completed pursuant to that initial listing or any subsequent but continuous
listing at commercially reasonable offering prices. The parties agree that this
provision is in lieu of all other rights the Executive has with respect to any
and all Company relocation policies presently in effect as regards a sale
resulting from a termination pursuant to 4.02. The Company's customary
relocation policies shall apply to any other move made by the Executive from Las
Vegas agreed to by all parties.
7. Notwithstanding anything contained in the Agreements to the contrary, the
Executive unequivocally waives his right to assert that his business or
residential relocation to Las Vegas, Nevada triggered any rights under any
existing agreement between the Company and the Executive, including but not
limited to the aforesaid Agreements and any and all stock option agreements
presently in existence between the Company and the Executive.
Except as amended by this Fourth Amended Agreement, all terms and conditions of
the Agreement shall remain in full force and effect. Moreover, it is the
intention of the parties hereto that if this Fourth Amended Agreement is void,
becomes voidable, or otherwise is or becomes unenforceable as drafted, then the
Agreement, First Amended Agreement, Second Amended Agreement and Third Amended
Agreement shall continue in full force and effect, in accordance with the terms
and conditions thereof immediately prior to the execution of this Fourth Amended
Agreement. This Fourth Amended Agreement may be executed in any number of
counterparts which together shall constitute one instrument, shall be governed
by and construed in accordance with the laws and decisions of the State of New
York applicable to contracts made and to be performed therein without giving
effect to the principles of conflict of laws.
[THE REMAINDER OF THE PAGE IS PURPOSELY LEFT BLANK.]
IN WITNESS WHEREOF, the parties have duly executed this Fourth Amended
Agreement as of this 31st day of December, 2003.
MPOWER COMMUNICATIONS CORP.
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
Chairman & CEO
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
