EXHIBIT 10.33
EMPLOYMENT AGREEMENT
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This EMPLOYMENT AGREEMENT, made as of March 7, 2000 (the "Effective
Date"), is entered into by and between NorthPoint Communications, Inc. (the
"Company") and Xxxxxxx Xxxxx (the "Executive").
WHEREAS, the Company and Executive wish to enter into a formal
employment agreement that shall govern the terms and conditions of Executive's
employment with the Company and shall provide certain severance, stock option
and other benefits for Executive in the event that his employment should
terminate.
WHEREAS, the Executive is agreeing to abide by the restrictive
covenants contained herein and is foregoing other career opportunities in
reliance on this Employment Agreement,
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth, the parties agree as follows:
1. Definitions
A. Target Bonus. "Target Bonus" means the target annual bonus for Executive
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during in any year or, if Executive is entitled to a bonus under an
individual written agreement with the Company, the annual bonus to which
Executive is entitled thereunder.
B. Base Salary. "Base Salary" means the greater of the annual rate of base
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salary in effect for Executive at the time of Executive's Qualifying
Termination or the annual rate of base salary in effect for Executive
immediately before the Change in Control.
C. Cause. Termination for "Cause" means the following: (i) Executive's
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conviction of a felony or any crime of dishonesty; (ii) Executive's
commission of any act of fraud with respect to the Company; (iii) any
intentional misconduct by Executive intended to have a materially adverse
effect upon the Company's business; (iv) Executive's repeated failure to
satisfactorily perform his job duties; (v) an intentional breach by
Executive of any of Executive's fiduciary obligations as an officer or
director of the Company or a breach of this Employment Agreement or any
other agreement with the Company that has a materially adverse effect upon
the Company; or (vi) Executive's death or Permanent Disability.
D. Change in Control. "Change in Control" shall have the meaning set forth
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in the Option Agreement attached as Exhibit A hereto.
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E. Change of Employment Circumstances. "Change of Employment Circumstances"
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means (i) a material reduction in Executive's level of duties or
responsibilities or the nature or scope of Executive's functions, or (ii) a
reduction in Executive's base salary or a reduction in Executive's total
cash compensation (consisting of base salary and target bonus), or (iii)
the failure to provide Executive with employee benefits (including
medical/dental, disability and life insurance) that are substantially
equivalent to the benefits provided to Executive immediately before a
Change in Control, or (iv) a relocation of Executive's principal place of
employment by more than thirty-five miles away (or any requirement that
Executive spend more than two days a week at any location more than thirty-
five miles away), or (v) the breach of the terms of any compensation
agreement or arrangement between the Company and Executive, or (vi) the
repudiation or failure by the Company or its successor to acknowledge (upon
Executive's written request) or to comply with any of its obligations under
this Employment Agreement.
F. Comparable Position. A "Comparable Position" means a position with a
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successor to part or all of the business of the Company, if the terms of
such position do not differ from Executive's prior position with the
Company in any manner that would constitute a Change of Employment
Circumstances, assuming that the terms of such new position with the
successor remained materially the same as the terms of Executive's
employment with the Company.
G. Final Determination. "Final Determination" means an audit adjustment by
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the Internal Revenue Service that is either (i) agreed to by both Executive
(or his estate) and the Company (such agreement by the Company to be not
unreasonably withheld) or (ii) sustained by a court of competent
jurisdiction in a decision with which Executive and the Company concur
(such concurrence by the Company to be not unreasonably withheld) or with
respect to which the period within which an appeal may be filed has lapsed
without a notice of appeal being filed.
H. Period of Coverage. The "Period of Coverage" means the period commencing
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on the Effective Date and ending upon the date of termination of this
Employment Agreement.
I. Permanent Disability. "Permanent Disability" shall mean the inability of
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Executive to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment that is expected to
result in death or has lasted or can be expected to last for a continuous
period of twelve (12) months or more.
J. Qualifying Termination. "Qualifying Termination" shall mean a
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termination of Executive's employment with the Company either (i) by the
Company for any reason other than for Cause, or (ii) by Executive,
following the occurrence of a Change in Control that occurs during the
Period of Coverage which results in a Change of Employment Circumstances,
provided that Executive properly executes, and does not revoke or attempt
to revoke, a Release of claims against the Company, its affiliates and
their employees and agents in the form attached as Exhibit B (the
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"Release"). A Qualifying Termination shall be deemed not to have occurred
where Executive is offered a Comparable Position with the new corporate
entity subsequent to a Change in Control, whether or not Executive accepts
such position. If Executive is offered a position which is not a Comparable
Position and accepts such position, then Executive will be treated as
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if he had been offered and accepted a Comparable Position.
2. Job Duties. Executive shall serve as the Chief Information Officer of the
Company and shall, in such capacity, report directly to the Chief Executive
Officer. In his capacity as Chief Information Officer of the Company, Executive
shall devote substantially all of his time and attention to the business and
affairs of the Company.
3. Current Stock Options and Benefits.
A. Initial Grant. Pursuant to the Amended and Restated NorthPoint
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Communications Group, Inc. 1999 Stock Option Plan (the "Option Plan"),
Executive received a grant of stock options on June 29, 1999 (the "Initial
Grant"). The Option Agreement between the Company and Executive Agreement
that underlies the Initial Grant (the "Option Agreement") is attached
hereto as Exhibit A.
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B. Cash Compensation. Executive is paid a base salary at the annual
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rate of Two Hundred Thousand Dollars ($200,000.00), to be paid in
accordance with the Company's standard payroll policy. Such base salary may
be increased by the Board of Directors in its sole discretion.
C. Bonus. Executive shall be eligible to receive an annual target
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bonus of up to a maximum of fifty percent (50%) of his annual base salary.
Payment of the bonus shall be at the discretion of the Compensation
Committee of the Company's Board of Directors and shall be based on the
achievement of objectives agreed to by the Compensation Committee of the
Board of Directors. In future years, payment of the bonus shall be at the
discretion of the Compensation Committee of the Company's Board of
Directors and shall be based on the achievement of objectives as determined
by such Committee.
D. Other Employee Benefits. Executive shall, throughout the Period of
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Coverage, be eligible to participate in all group term life insurance
plans, group health plans, accidental death and dismemberment plans and
short-term and long-term disability programs, sick leave, vacation leave
and other executive perquisites which are made available to the Company's
executive and/or other Company employees.
4. Additional Compensation. In addition to the compensation enumerated above,
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and in return for the consideration contained herein, the Company has agreed to
provide the Executive with the compensation set forth in subsections A, B and C
below.
A. Supplemental Life Insurance. The Company will provide Executive with
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supplemental group term life insurance coverage of $500,000 during the
Period of Coverage.
B. Financial Counseling Assistance. The Company will provide Executive with
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annual financial counseling during the Period of Coverage by a provider
selected by the Executive. In no event, however, shall the Company provide
Executive with financial
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counseling in an amount in excess of $10,000 per year.
C. Change in Control.
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(1) Change in Control Protection. Notwithstanding anything to the
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contrary in the Initial Grant or Option Agreement, upon (i) a Change
in Control of the Company, and (ii) a Qualifying Termination of the
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Executive, the Executive shall be entitled to the following benefits:
a) Acceleration. Executive's Initial Grant, to the extent not
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otherwise exercisable for all the shares of Company common stock
underlying the Initial Grant, will immediately become exercisable
for all the shares of Company common stock underlying the Initial
Grant, and may be exercised for any or all of those shares as
fully vested shares. All options must be exercised within ninety
(90) days of the date of the Qualifying Termination.
b) Installment Sum Payment of Salary and Bonus. Beginning within
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business days after a Qualifying Termination (or, if later, the
last day of any ten (10) period during which the Release may be
revoked by Executive), the Company shall make twelve (12) equal
monthly cash payments to Executive, subject to any mandatory tax
withholding, equal to one-twelfth (1/12) times the sum of
Executive's Annual Base Salary and Executive's Target Bonus.
c) Continuing Benefit Coverage. The Company will, at normal
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employee rates, provide Executive and, to the extent available
before the Qualifying Termination, Executive's eligible
dependents with coverage under the Company's medical/dental plan,
life insurance and accident plan and disability plan until the
earlier of (i) one (1) year after the date of Executive's
Qualifying Termination or (ii) the first date that Executive is
covered under another employer's program which provides
substantially the same level of benefit coverage without
exclusion for pre-existing conditions. After this period of
coverage, Executive (and, if applicable, Executive's eligible
dependents) may elect to continue coverage under the Company's
group medical/dental plan at Executive's own expense in
accordance with the Consolidated Omnibus Budget Reconciliation
Act of 1985, as amended ("COBRA") and, for purposes of
determining the maximum period of COBRA coverage, such maximum
period will begin immediately following the end of Company-
subsidized coverage.
d) Excess Tax Gross-Up Payment. If any compensation payable
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hereunder, either alone or when aggregated with other
compensation payable to Executive, would constitute a parachute
payment that would subject Executive to an excise tax under
Section 4999 of the Internal Revenue Code, Executive shall be
entitled to receive an additional lump
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sum cash payment, subject to mandatory tax withholding, which,
when added to all compensation payable to Executive that
constitutes a parachute payment, provides Executive with the same
after tax-compensation that he would have received from such
parachute payments had none of such compensation constituted a
parachute payment (a "Tax Gross-Up"). The procedures for making
such payment are set forth in Section 6.
(2) Limitation on Acceleration. Notwithstanding anything else set
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forth in this Section 4, if it is reasonably determined by the
Company's Board of Directors in good faith, upon consultation with
Company management and the Company's independent auditors, that the
acceleration of vesting of stock options or restricted stock or the
acceleration and cash-out of affiliate options upon a Change in
Control (to the extent that those Sections provide for acceleration or
cash-out that would not otherwise occur under the terms of the
instruments evidencing such options or restricted stock) would
preclude accounting for any proposed business combination of the
Company as a pooling of interests, and the Board of Directors
otherwise desires to approve such a proposed business transaction
which requires as a condition to the closing of such transaction that
it be accounted for as a pooling of interests, then, solely to the
extent necessary to permit such accounting, such acceleration or cash-
out shall not occur. The previous sentence shall not limit any
acceleration of vesting or cash-out of any option or restricted stock
that would occur, in absence of this Employment Agreement, under the
terms of the Option Agreement or Option Plan.
(3) Offset of Benefits. The compensation and benefits payable
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hereunder shall not be reduced or offset by any amounts that Executive
earns or could earn from any other sources following Executive's
Qualifying Termination. However, except to the extent the Company
expressly agrees otherwise in writing, if the Company becomes
obligated to pay Executive any severance pay or severance benefits
under a separate employment or severance agreement or arrangement, the
benefits payable hereunder shall be reduced by the amount of benefits
payable under such other agreement or arrangement.
5. Restrictive Covenants.
A. In return for the consideration contained herein, Executive has agreed
to certain restrictive covenants set forth below. During the Period of
Coverage, Executive agrees that he shall:
(1) devote substantially all of his time and energy to the performance
of Executive's duties described herein, except during periods of
illness or vacation.
(2) not directly or indirectly provide services to or through any
person, firm or other entity except the Company, unless otherwise
authorized by the Company in writing.
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(3) not render any services of any kind or character for Executive's
own account or for any other person, firm or entity without first
obtaining the Company's written consent.
B. Notwithstanding the foregoing, Executive shall have the right to perform
such incidental services as are necessary in connection with (i) his
private, passive investments, but only if Executive is not obligated or
required to (and shall not in fact) devote any managerial efforts which
interfere with the services required to be performed by him hereunder, (ii)
his charitable or community activities or (iii) participation in trade or
professional organizations, but only if such incidental services do not
significantly interfere with the performance of Executive's services
hereunder.
6. Excise Tax Gross-Up Procedures.
A. The amount of any such Tax Gross-Up to which Executive becomes entitled
under Section 4.C(1)(d), will be determined pursuant to the following:
X = Y / (1 - (A + B + C)), where
X is the total dollar amount of the Tax Gross-Up payable to
Executive;
Y is the total Excise Tax (as defined in Internal revenue Code
Section 4999) imposed on Executive;
A is the Excise Tax rate in effect at the time;
B is the highest combined marginal federal income and applicable
state income tax rate in effect for Executive, after taking into
account the deductibility of state income taxes against federal
income taxes to the extent allowable, for the calendar year in
which the Tax Gross-Up is paid; and
C is the applicable Hospital Insurance (Medicare) Tax Rate in
effect for Executive for the calendar year in which the Tax
Gross-Up is paid;
provided if there is a change in the tax laws after the date hereof that would
render the amount determined above insufficient to fully reimburse Executive on
an after-tax basis for the amount of any Excise Tax, Executive shall be entitled
to such additional amount as may be necessary to provide him with such
reimbursement
B. Within ninety (90) days after a determination is made by the Internal
Revenue Service or Executive's tax advisor that an item of compensation or
benefit payable hereunder constitutes a parachute payment under Code
Section 280G for which
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Executive is liable for an Excise Tax, Executive shall identify the nature
of the payment to the Company and submit to the Company the calculation of
the Excise Tax attributable to that payment and the Tax Gross-Up to which
Executive is entitled with respect to such tax liability. The Company will
pay such Tax Gross-Up to Executive (net of all applicable withholding
taxes, including any taxes required to be withheld under Code Section 4999)
within ten (10) business days after Executive's submission of the
calculation of such Excise Tax and the resulting Tax Gross-Up, provided
such calculations represent a reasonable interpretation of the applicable
law and regulations.
C. In the event that Executive's actual Excise Tax liability is determined
by a Final Determination to be greater than the Excise Tax liability
previously taken into account for purposes of the Tax Gross-Up paid to
Executive pursuant to this Section 6, then within ninety (90) days
following the Final Determination, Executive shall submit to the Company a
new Excise Tax calculation based upon the Final Determination. Within ten
(10) business days after receipt of such calculation, the Company shall pay
Executive the additional Tax Gross-Up attributable to such excess Excise
Tax liability.
D. In the event that Executive's actual Excise Tax liability is determined
by a Final Determination to be less than the Excise Tax liability
previously taken into account for purposes of the Tax Gross-Up paid to
Executive pursuant to this Section 6, then Executive shall refund to the
Company, promptly upon receipt, any federal or state tax refund
attributable to the Excise Tax overpayment.
7. Termination of Employment.
A. By Company. The Company may terminate Executive's employment under this
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Employment Agreement at any time for any reason, with or without Cause.
B. By Executive. Executive may terminate his employment under this
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Employment Agreement at any time, for any reason, with or without Cause, by
giving the Company at least thirty (30) days prior written notice of such
termination. However, such thirty (30) day notice requirement shall not
apply if Executive terminates his employment due to a Change in Control.
8. Release of Claims. All compensation and benefits under Section 4 above are
in consideration for Executive's execution of the Release, which Release
Executive does not subsequently revoke or attempt to revoke. If Executive does
not execute such a Release or if Executive attempts to revoke such Release,
Executive will not be entitled to any of the benefits provided under this
Employment Agreement.
9. Successors and Assigns. The provisions of this Employment Agreement shall
inure to the benefit of, and shall be binding upon, the Company, its successors
and assigns, and the Executive, the personal representative of his estate and
his heirs and legatees; provided, however, Executive may not assign, transfer or
delegate his rights or obligations hereunder and any attempt to do so shall be
void.
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10. Notices.
A. Any and all notices, demands or other communications required or
desired to be given hereunder by any party shall be in writing and shall be
validly given or made to another party if served either personally or, if
deposited in the United States mail, certified or registered, postage
prepaid, return receipt requested. If such notice, demand or other
communication shall be served personally, service shall be conclusively
deemed made at the time of such personal service. If such notice, demand or
other communication is given by mail, service shall be conclusively deemed
made at the time of the receipt by the party to whom such notice, demand or
other communication is sent. Any and all notices, demands or other
communications shall be delivered to the following address:
To the Company: NorthPoint Communications
000 0/xx/ Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
To Executive: Xxxxxxx Xxxxx
000 Xxxxxxxxx Xx.
Xxxxxxxx, XX 00000
B. Any party hereto may change its address for the purpose of receiving
notices, demands and other communications as herein provided by a written
notice given in the manner aforesaid to the other party hereto.
11. Waivers. No waiver of any term or provision of this Employment Agreement
shall be valid unless such waiver is in writing signed by the party against whom
enforcement of the waiver is sought. In the case of the Company, such waiver
shall be signed by at least one (1) member of the Company's Board. The waiver
of any term or provision of this Employment Agreement shall not apply to any
subsequent breach of this Employment Agreement.
12. Governing Document. This Employment Agreement, the Option Agreement, the
Option Plan, and all other exhibits and attachments hereto constitute the entire
agreement and understanding of the Company and Executive with respect to the
terms and conditions of Executive's employment with the Company and the payment
of severance and other benefits, and supersedes all prior and contemporaneous
written or verbal agreements and understandings between Executive and the
Company relating to such subject matter. Where the terms of the Option
Agreement or Option Plan conflict with the terms of this Employment Agreement,
the terms of this Employment Agreement shall control. Any and all prior
agreements, understandings or representations relating to Executive's employment
with the Company are hereby terminated and cancelled in their entirety and are
of no further force or effect.
13. Governing Law. The provisions of this Employment Agreement shall be
construed and interpreted under the laws of the State of California applicable
to agreements executed and to be
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wholly performed within the State of California. If any provision of this
Employment Agreement as applied to any party or to any circumstance should be
adjudged by a court of competent jurisdiction to be void or unenforceable for
any reason, the invalidity of that provision shall in no way affect (to the
maximum extent permitted by law) the application of such provision under
circumstances different from those adjudicated by the court, the application of
any other provision of this Employment Agreement, or the enforceability or
invalidity of this Employment Agreement as a whole. Should any provision of this
Employment Agreement become or be deemed invalid, illegal or unenforceable in
any jurisdiction by reason of the scope, extent or duration of its coverage,
then such provision shall be deemed amended to the extent necessary to conform
to applicable law so as to be valid and enforceable or, if such provision cannot
be so amended without materially altering the intention of the parties, then
such provision shall be stricken and the remainder of this Employment Agreement
shall continue in full force and effect.
14. Deductions. All amounts paid to Executive hereunder are subject to all
withholdings and deductions required by law.
15. Amendment and Termination. This Employment Agreement may be modified,
amended or terminated only by a written agreement signed by Executive and an
authorized member of the Company's Board.
16. Remedies. All rights and remedies provided pursuant to this Employment
Agreement or by law shall be cumulative, and no such right or remedy shall be
exclusive of any other. A party may pursue any one or more rights or remedies
hereunder or may seek damages or specific performance in the event of another
party's breach hereunder or may pursue any other remedy by law or equity,
whether or not stated in this Employment Agreement.
17. Arbitration. Executive agrees that any and all disputes that he has with
the Company, or any of its employees, which arise out of his employment or under
the terms of his employment, shall be resolved through final and binding
arbitration, as specified herein. This shall include, without limitation,
disputes relating to this Employment Agreement, his employment by the Company or
the termination thereof, claims for breach of contract or breach of the covenant
of good faith and fair dealing, and any claims of discrimination or other claims
under Title VII of the Civil Rights Act of 1964, the Age Discrimination in
Employment Act, the Americans with Disabilities Act, the California Fair
Employment and Housing Act, the Employee Retirement Income Securities Act, the
Racketeer Influenced and Corrupt Organizations Act, or any other federal, state
or local law or regulation now in existence or hereinafter enacted and as
amended from time to time concerning in any way the subject of his employment
with the Company or its termination. The only disputes not covered by this
Employment Agreement are the following: (i) claims for benefits under the
unemployment insurance or workers' compensation laws, and (ii) claims concerning
the validity, infringement or enforceability of any trade secret, patent right,
copyright, trademark or any other intellectual property held or sought by the
Company or which the Company could otherwise seek; in each of these instances
such disputes or claims shall not be subject to arbitration, but rather, shall
be resolved pursuant to applicable law. Binding arbitration shall be conducted
in the county in which the Company's principal place of business is then located
in accordance with the rules and regulations of the American Arbitration
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Association (AAA). One arbitrator shall be chosen by mutual agreement of the
Company and Executive from the AAA Employment Advisory Panel. Each side shall
bear its own attorneys' fees; that is, the arbitrator shall not have authority
to award attorneys' fees unless a statutory section at issue in the dispute
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authorizes the award of attorneys' fees to the prevailing party, in which case
the arbitrator has authority to make such award as permitted by the statute in
question. Executive understands and agrees that the arbitration shall be
instead of any jury trial and that the arbitrator's decision shall be final and
binding to the fullest extent permitted by law and enforceable by any court
having jurisdiction thereof.
18. Counterparts. This Employment Agreement may be executed in more than one
counterpart, each of which shall be deemed an original, but all of which
together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the day and year first above written.
NORTH POINT COMMUNICATIONS, INC.
By ____________________________________
Name:
Title:
EXECUTIVE:
_______________________________________
(Signature)
_______________________________________
(Print Name)
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EXHIBIT A
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EXHIBIT B
Dear Xx. Xxxxx:
This letter is provided to confirm the agreement we have reached
regarding your separation from employment with NorthPoint Communications, Inc.,
(the "Company"). We have agreed that your employment with the Company will
terminate effective _________________, 200__.
In consideration of the benefits to be provided to you pursuant to
that certain in Employment Agreement between you and the Company dated March 7,
2000, you agree to the following:
A. You fully and forever release and promise not to institute or
participate in any legal proceeding against the Company or any of its directors,
officers, or employees with respect to any and all claims and causes of action
of any nature or kind, which are or may be claimed to exist, through and
including the date on which this Agreement is executed by you, including but not
limited to, any proceeding arising out of or relating in any way to your
employment with the Company or your separation from employment. You should
understand that you are forever waiving any rights you may have to pursue any
remedies available to you against the Company, including, but not limited to,
any employment-related cause of action, any tort or contract claims, any claim
for violation of any state, federal or local statute, ordinance or regulation
relating to employment or employment discrimination.
B. You have agreed to maintain in confidence all information you have
regarding the Company, its clients, the circumstances leading to your separation
from the Company and the terms of this Agreement, except to the extent you are
required by law to make any such disclosure.
C. This Agreement between us shall be deemed to have been entered into in
the State of California and shall be construed and interpreted in accordance
with the laws of this State. It supersedes any and all prior agreements between
you and the Company and contains the entire agreement between us.
D. You and the Company hereby expressly waive any and all rights and
benefits conferred by the provisions of Section 1542 of the Civil Code of the
State of California, which states as follows:
A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at
the time of executing the release, which if known by him
must have materially affected his settlement with the
debtor.
You may have up to ____________ (___) days in which to consider this
Agreement and you should review it with an attorney if you so desire. By your
signature below, you acknowledge that you have read and understand the terms of
this Agreement, and that you are signing it voluntarily and without coercion.
You further acknowledge that the waivers you
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have made in this Agreement are knowing, conscious and made with full
appreciation that you are forever foreclosed from pursuing any of the rights so
waived.
Very truly yours,
__________________________
Dated:____________________ By:________________________________
(Name, Title)
I hereby accept and agree to the terms and conditions set forth in the
above agreement.
Dated:___________________ ___________________________________
(Executive Name)
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