Exhibit 10.26
EXECUTIVE EMPLOYMENT AGREEMENT
(Xxx Xxxxxxxxx)
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is made and entered
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into as of October 1, 1999, by and between TeleBermuda International Limited, a
Bermuda company (together with its successors and assigns, the "Company"), and
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Xxx Xxxxxxxxx (the "Executive").
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WHEREAS, the Executive is currently an employee of the Company and the
Executive has special and unique knowledge, abilities and expertise with respect
to the business of the Company and its Affiliates (as defined below); and
WHEREAS, on the terms and conditions set forth herein, the Company desires
to continue to employ the Executive and the Executive desires to continue to be
employed by the Company.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Employment Period. Subject to Section 3, the Company hereby agrees to
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employ the Executive, and the Executive hereby agrees to be employed by the
Company, in accordance with the terms and provisions of this Agreement, for the
period commencing effective as of July 15, 1999 (the "Effective Date") and
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ending on July 15, 2001 (the "Employment Period"); provided, however, that
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commencing on July 15, 2001 and on the first day of each two-year period
thereafter (i.e., any such first day being July 15, 2003, July 15, 2005, July
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15, 2007 and so forth, as applicable), the Employment Period shall automatically
be extended for two additional years unless at least three months prior to the
expiration of the applicable two-year period, but no more than 12 months prior
to the expiration of such two-year period, the Company or the Executive shall
have given written notice that it or she, as applicable, does not wish to extend
this Agreement (a "Non-Renewal Notice"). The term "Employment Period", as
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utilized in this Agreement, shall refer to the Employment Period as so
automatically extended.
2. Terms of Employment.
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(a) Position and Duties.
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(i) During the term of the Executive's employment, the Executive
shall report to the Chief Executive Officer or President of the Company and/or
such other persons as the Company's board of directors (the "Board") may
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designate from time to time. The Executive shall have such responsibilities as
determined by the Chief Executive Officer or President of the Company or the
Board from time to time (including holding officer positions with the Company
and one or more Affiliates of the
Company, including serving as General Counsel and Executive Vice President and
Secretary of GlobeNet Communications Group Limited).
(ii) During the term of the Executive's employment, and excluding any
periods of vacation and sick leave to which the Executive is entitled, the
Executive agrees to devote substantially all of her business time to the
business and affairs of the Company and, to the extent necessary to discharge
the responsibilities assigned to the Executive hereunder, to use the Executive's
reasonable efforts to perform faithfully, effectively and efficiently such
responsibilities. Notwithstanding anything to the contrary in Section 9 except
as otherwise hereinafter provided in this Section 2(a) (ii), during the term of
the Executive's employment and thereafter, it shall not be a violation of this
Agreement for the Executive to (1) serve on corporate, civic or charitable
boards or committees, (2) deliver lectures or fulfill speaking engagements and
(3) manage personal investments, so long as such activities do not interfere
with the performance of the Executive's responsibilities as an employee of the
Company in accordance with this Agreement; provided, however, the right to serve
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on corporate boards or committees and the right to manage personal investments
are each subject to Section 9.
(b) Compensation.
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(i) Base Salary. During the term of the Executive's employment, the
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Executive shall receive an annual base salary ("Annual Base Salary"), which
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shall be paid in accordance with the customary payroll practices of the Company,
at least equal to the amount specified on Exhibit A attached hereto.
(ii) Bonuses. For each calendar year of the Company, the Executive
may be awarded an annual performance bonus (the "Bonus") subject to and in
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accordance with the terms and provisions of Exhibit A attached hereto.
(iii) Incentive, Savings and Retirement Plans. During the term of
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the Executive's employment, the Executive shall be entitled to participate in
all incentive, savings and retirement plans, practices, policies and programs
applicable generally to other executives of the Company of a comparable status
("Investment Plans").
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(iv) Welfare Benefit Plans. During the term of the Executive's
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employment, the Executive and/or the Executive's family, as the case may be,
shall be eligible for participation in and shall receive all benefits under
welfare benefit plans, practices, policies and programs ("Welfare Plans")
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provided by the Company (including medical, prescription, dental, disability,
salary continuance, employee life, group life, accidental death and travel
accident insurance plans and programs) to the extent applicable generally to
other executives of the Company of a comparable status.
(v) Perquisites. During the term of the Executive's employment, the
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Executive shall be entitled to receive (in addition to the benefits
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described above) such perquisites and fringe benefitsappertaining to the level
of her position in accordance with any practice established by the Board.
(vi) Expenses. During the term of the Executive's employment, the
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Executive shall be entitled to receive prompt reimbursement for all reasonable
employment expenses incurred by the Executive in accordance with the policies,
practices and procedures of the Company.
(vii) Vacation and Holidays. During the term of the Executive's
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employment, the Executive shall be entitled to paid vacation and paid holidays
in accordance with the plans, policies, programs and practices of the Company
for its executives of a comparable status.
(viii) Stock Options. Contemporaneously with the execution of this
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Agreement, the Executive and GlobeNet Communications Group Limited ("GlobeNet")
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have executed that certain Executive Stock Option Agreement (the "Option
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Agreement"), pursuant to which GlobeNet grants to the Executive stock options
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(the "Executive Options") exercisable for shares of capital stock of GlobeNet
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subject to and in accordance with the terms and provisions of the Option
Agreement.
3. Termination of Employment.
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(a) Death or Disability. The Executive's employment shall terminate
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automatically upon the Executive's death during the Employment Period. If the
Disability of the Executive has occurred during the Employment Period (pursuant
to the definition of Disability set forth below), the Company may give to the
Executive written notice in accordance with Section 11(b) of its intention to
terminate the Executive's employment. In such event, the Executive's employment
with the Company shall terminate effective on the 30th day after receipt of such
notice by the Executive (the "Disability Effective Date"), provided that, within
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the 30 days after such receipt, the Executive shall not have returned to full-
time performance of the Executive's duties. For purposes of this Agreement,
"Disability" shall mean the Executive's inability to perform her duties and
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obligations hereunder for a period of 180 consecutive days due to mental or
physical incapacity as determined by a physician selected by the Company or its
insurers and acceptable to the Executive or the Executive's legal representative
(such agreement as to acceptability not to be withheld unreasonably).
(b) Cause or Board Termination. The Company may terminate the
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Executive's employment during the Employment Period for Cause or without Cause.
For purposes of this Agreement, "Cause" shall mean (i) a breach by the Executive
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of the Executive's obligations under Section 2(a)(ii) (other than as a result of
physical or mental incapacity) which constitutes a continued material
nonperformance by the Executive of her obligations and duties thereunder, as
reasonably determined by the Board, and which is not remedied within 30 days
after receipt of written notice from the Company specifying such breach, (ii)
commission by the Executive of an act of fraud upon, or willful misconduct
toward, the Company or any Affiliate (as defined below in this
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Section 3(b)), as reasonably determined by a majority of the disinterested
members of the Board (neither the Executive nor members of her family being
deemed disinterested for this purpose) after a hearing by the Board following
ten days' notice to the Executive of such hearing, (iii) a material breach by
the Executive of Section 6 or Section 9, (iv) the conviction of the Executive of
any felony or crime of moral turpitude (or a plea of nolo contendere thereto) or
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(v) the failure of the Executive to carry out, or comply with, in any material
respect any lawful directive of the Chief Executive Officer or President of the
Company or the Board consistent with the terms of this Agreement, which is not
remedied within 30 days after receipt of written notice from the Company
specifying such failure. As used in this Agreement, "Affiliate" means, with
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respect to a Person, any other Person controlling, controlled by or under common
control with the first Person; the term "control," and correlative terms, means
the power, whether by contract, equity ownership or otherwise, to direct the
policies or management of a Person; and "Person" means an individual,
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partnership, corporation, limited liability company, trust or unincorporated
organization, or a government or agency or political subdivision thereof.
(c) Good Reason. The Executive's employment may be terminated during
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the Employment Period by the Executive for Good Reason or without Good Reason;
provided, however, that the Executive agrees not to terminate her employment for
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Good Reason unless (i) the Executive has given the Company at least 30 days'
prior written notice of her intent to terminate her employment for Good Reason,
which notice shall specify the facts and circumstances constituting Good Reason
and (ii) the Company has not remedied such facts and circumstances constituting
Good Reason within such 30-day period. For purposes of this Agreement, "Good
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Reason" shall mean:
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(i) the assignment to the Executive of any duties inconsistent in any
respect with the Executive's position (including status, offices, titles and
reporting requirements), authority, duties or responsibilities, excluding for
this purpose an isolated, insubstantial and inadvertent action not taken in bad
faith and which is remedied by the Company promptly after receipt of notice
thereof given by the Executive; provided, however, that Good Reason may not be
asserted by the Executive under this clause (i) of Section 3(c) after a Non-
Renewal Notice has been given by either the Company or the Executive;
(ii) any termination or material reduction of the Executive's
compensation or benefits set forth in this Agreement;
(iii) any failure by the Company to comply with any of the provisions
of Section 2(b), other than an isolated, insubstantial and inadvertent failure
not occurring in bad faith and which is remedied by the Company promptly after
receipt of notice thereof given by the Executive;
(iv) any failure by the Company to comply with and satisfy
Section 8(c); or
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(v) without limiting the generality of the foregoing, any material
breach by the Company or any of its subsidiaries or other Affiliates of this
Agreement.
(d) Notice of Termination. Any termination by the Company for Cause
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or without Cause, or by the Executive for Good Reason or without Good Reason,
shall be communicated by Notice of Termination to the other party hereto given
in accordance with Section 11(b). For purposes of this Agreement, a "Notice of
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Termination" means a written notice which (i) indicates the specific termination
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provision in this Agreement relied upon, (ii) to the extent applicable, sets
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the provision so
indicated and (iii) if the Date of Termination (as defined below) is other than
the date of receipt of such notice, specifies the termination date (which date
shall not be more than 15 days after the giving of such notice). The failure by
the Executive or the Company to set forth in the Notice of Termination any fact
or circumstance which contributes to a showing of Good Reason or Cause shall not
waive any right of the Executive or the Company hereunder or preclude the
Executive or the Company from asserting such fact or circumstance in enforcing
the Executive's or the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" means (i) if the
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Executive's employment is terminated by the Company for Cause or without Cause,
or by the Executive for Good Reason or without Good Reason, the date of receipt
of the Notice of Termination or any later date specified therein pursuant to
Section 3(d), as the case may be and (ii) if the Executive's employment is
terminated by reason of death or Disability, the date of death of the Executive
or the Disability Effective Date, as the case may be.
4. Obligations of the Company upon Termination.
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(a) Good Reason; Death or Disability. If, during the Employment
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Period, the Company shall terminate the Executive's employment without Cause or
due to the Executive's Disability or the Executive shall terminate her
employment for Good Reason, or the Executive's employment is terminated due to
the Executive's death:
(i) The Company shall (except as otherwise hereinafter provided) pay
to the Executive (or the Executive's legal representatives in the case of death
or Disability of the Executive) in a lump sum in cash within ten days after the
Date of Termination the aggregate of the following amounts:
(1) the portion of the Annual Base Salary through the Date
of Termination to the extent not theretofore paid and any
compensation previously deferred by the Executive and any accrued
vacation pay ("Accrued Obligations");
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(2) 200% of the Executive's then current Annual Base Salary;
provided, however, that in the case of termination of employment due
to death or Disability, (A) the aforesaid 200% of the Executive's
then current Annual Base Salary shall not be paid or owed and (B) the
Company shall pay an amount equal to the portion of the Annual Base
Salary that otherwise would have been paid had the Executive remained
an employee hereunder from the day after the Date of Termination
through the expiration of the Employment Period;
(3) a pro rata portion of the Bonus that has been awarded
(if any) to the Executive for the calendar year in which such
termination occurs that would have been payable to the Executive
pursuant to Section 2(b)(ii) hereof for such calendar year if such
Executive had remained in the employ of the Company through the end
of such calendar year, based upon the number of days during such
calendar year prior to the Date of Termination (the "Accrued Bonus");
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and
(4) any amount arising from Executive's participation in, or
benefits under, any Investment Plans ("Accrued Investments"), which
amounts shall be payable in accordance with the terms and conditions
of such Investment Plans.
(ii) Except as otherwise provided in Section 4(d), the Executive (and
members of her family) shall be entitled to continue their participation in the
Company's Welfare Plans for a period of 12 months from the Date of Termination.
(iii) The Executive shall vest, as of the Date of
Termination, in the Executive Options that would otherwise vest after the Date
of Termination to the extent provided in the Option Agreement.
(iv) The Company shall have no further payment obligations to the
Executive or her legal representatives under this Agreement.
(b) Non-Renewal Notice. Except as provided in Sections 4(a) and (c),
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if the Company provides the Executive with a Non-Renewal Notice, the Company
shall (except as otherwise hereinafter provided in this Section 4(b)) pay to the
Executive in a lump sum in cash, within ten days after the date of termination
of employment hereunder an amount equal to (i) the Accrued Obligations; (ii)
200% of the Annual Base Salary immediately prior to such termination; (iii) any
Bonus that may be owed; and (iv) the Accrued Investments, which shall be payable
in accordance with the terms and conditions of the Investment Plans. In
addition, except as otherwise provided in Section 4(d), the members of the
Executive's family shall be entitled to continue their participation in the
Company's Welfare Plans for a period of 12 months after the Date of Termination.
Further, the Executive shall vest, as of the Date of Termination, in the
Executive Options
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that would otherwise vest after the Date of Termination to the extent provided
in the Option Agreement. The Company shall have no further payment obligations
to the Executive or her legal representatives under this Agreement.
(c) Cause; Other than for Good Reason. If the Executive's employment
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shall be terminated by the Company for Cause or by the Executive without Good
Reason during the Employment Period, the Company shall have no further payment
obligations to the Executive other than for payment of the Accrued Obligations,
Accrued Investments (which shall be payable in accordance with the terms and
conditions of the Investment Plans), and the continuance of benefits under the
Welfare Plans to the Date of Termination. Further, (i) all unvested rights
under or in respect of the Executive Options or any stock option, stock
appreciation right or similar agreement (including the Option Agreement) that
would otherwise vest after the Date of Termination shall be canceled and of no
further force or effect and (ii) the expiration date of any Executive Options
which have already vested shall be as provided in the Option Agreement.
(d) If pursuant to the terms and provisions of the Company's Welfare
Plans, the Executive (or members of her family) are not eligible to participate
in the Company's Welfare Plans because the Executive is no longer an employee of
the Company, then the Company may fulfill its obligations under Section 4(a)(ii)
or Section 4(b), as applicable, by either providing to the Executive (or her
legal representatives), or reimbursing the Executive (or her legal
representatives) for the costs of, benefits substantially similar to the
benefits provided by the Company to its management under its Welfare Plans as
such may from time to time exist after the Date of Termination.
5. Full Settlement; Mitigation. In no event shall the
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Executive be obligated to seek other employment or take any other action by way
of mitigation of the amounts payable to the Executive under any of the
provisions of this Agreement and such amounts shall not be reduced whether or
not the Executive obtains other employment. Neither the Executive nor the
Company shall be liable to the other party for any damages or other amounts in
addition to the amounts payable under Section 4 arising out of the termination
or non-renewal of the Executive's employment prior to the end of the Employment
Period; provided, however, that the Company shall be entitled to seek damages
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for any breach by the Executive of Section 6, 7 or 9.
6. Confidential Information and Intellectual Property.
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(a) The Executive acknowledges that the Company and its Affiliates
have trade, business and financial secrets and other confidential and
proprietary information (collectively, the "Confidential Information").
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Confidential Information shall not include (i) information that is generally
known to other Persons who can obtain economic value from its disclosure or use
and (ii) information required to be disclosed by the Executive pursuant to a
subpoena or court order, or pursuant to a requirement of a governmental agency
or law of the United States of America or a state thereof or any governmental or
political subdivision thereof; provided, however, that the Executive shall
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(at the Company's sole cost and expense) take all reasonable steps to prohibit
disclosure pursuant to subsection (ii) above.
(b) The Executive agrees (i) to hold the Confidential Information in
confidence and (ii) not to release such information to any Person (other than
Company employees and other Persons to whom the Company has authorized the
Executive to disclose such information and then only to the extent that such
Company employees and other Persons authorized by the Company have a need for
such knowledge) or as required pursuant to Section 6(a)(ii) above.
(c) The Executive further agrees not to use any Confidential
Information for the benefit of any Person other than the Company and its
Affiliates.
(d) To the extent permitted by law, all rights worldwide with respect
to any and all intellectual or other property of any nature produced, created or
suggested by the Executive during the Employment Period or resulting from her
service shall be deemed to be a work for hire and shall be the sole and
exclusive property of the Company. The Executive agrees to execute, acknowledge
and deliver to the Company, at the Company's request, such further documents as
the Company finds appropriate to evidence the Company's rights in such property.
(e) The Executive agrees to sign the Company's standard form of
confidentiality agreement at the request of the Company.
7. Surrender of Materials Upon Termination. Upon any
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termination of the Executive's employment, the Executive shall immediately
return to the Company all copies, in whatever form, of any and all Confidential
Information and other properties of the Company and its Affiliates which are in
the Executive's possession, custody or control.
8. Successors and Assigns.
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(a) This Agreement is personal to the Executive and without the prior
written consent of the Company shall not be assignable by the Executive
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by the Executive's legal
representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns and the Company shall have the right
to assign this Agreement.
(c) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. As used in this Agreement,
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"Company" shall mean the Company as hereinbefore defined and any successor to
its business and/or assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law, or otherwise.
9. Non-Competition.
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(a) The Executive covenants and agrees with the Company that, while
she is an employee of the Company or any Affiliate thereof and for a period of
two years thereafter she will not, without the prior written consent of the
Company, either directly or indirectly:
(i) solicit any contractors, customers or distributors of the Company
or any Affiliate thereof or endeavor to entice away from the Company or any
Affiliate thereof any such Person or otherwise interfere with the relationship
between such Person and the Company or any Affiliate thereof for the purposes of
competing with the Company or any Affiliate thereof;
(ii) endeavor to entice away from the Company or any Affiliate
thereof any person who is employed by the Company or any Affiliate thereof,
either directly or indirectly, or interfere in any way with the
employer/employee relations between any such employee and the Company or any
Affiliate thereof; or
(iii) offer employment to any person who was employed by the
Company or any Affiliate thereof at the date upon which the Executive ceases to
be an employee of the Company or any Affiliate thereof.
(b) The Executive covenants and agrees with the Company and each
Affiliate thereof that (i) while she is an employee of the Company or any
Affiliate thereof she shall not directly or indirectly compete in any manner
against the Company or any of its Affiliates and (ii) and for a period of two
years following the date she ceases such employment for whatever reason, she
will not, directly or indirectly, in any manner whatsoever, including either
individually or in partnership or jointly or in conjunction with any other
Person, as principal, agent, shareholder, employee or in any other manner
whatsoever, carry on or be engaged in or concerned with or interested in or lend
money to, guarantee the debts or obligations of or permit her name to be used by
a Competitive Business (as defined below).
(c) For the purposes of this Section 9, a "Competitive Business" shall
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mean any business relating to or involving (A) the ownership (as a principal
business, and/or the construction and/or operation of any submarine cable system
which is located or is to be located between (1) Bermuda and the United States
of America, (2) Bermuda and South America, (3) the United States of America and
South America or (4) any two or more countries or continents if the Company or
any Affiliate thereof is constructing, owning and/or operating or is to
construct, own and/or operate any submarine cable system between any such
countries or continents during the Executive's employment
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hereunder or (B) telecommunication services (including electronic commerce) in
Bermuda.
(d) The foregoing covenants are given by the Executive acknowledging
that she has specific knowledge of the affairs of the Company and its
Affiliates.
(e) The Executive acknowledges and agrees that the nature of the
Confidential Information to which she will have access during her employment by
the Company or any Affiliate thereof would make it difficult, if not impossible,
for her to perform in a similar capacity for a Competitive Business without
disclosing or utilizing the Confidential Information and that if she were to
perform in a similar capacity for a Competitive Business it would be inevitable
that she would disclose and/or use Confidential Information.
(f) The Executive acknowledges that violations of the provisions of
Section 6 or 9 will cause immediate and irreparable harm to the Company,
entitling the Company to an injunction in or by a court of competent
jurisdiction or arbitration in addition to any other remedies the Company may
have at law or in equity, including recovery of reasonable attorneys' fees and
costs incurred by the Company in enforcing the provisions of Section 6 or 9. In
the event that any covenant contained in Section 9 or portion of any such
covenant should be unenforceable or be declared invalid for any reason
whatsoever, such unenforceability or invalidity shall not affect the
enforceability or validity of the remaining portions of the covenants and such
unenforceable or invalid portions shall be severable from the remainder of this
Agreement. The Executive hereby acknowledges and agrees that all restrictions
contained in this Section 9 are reasonable and valid and all defenses to the
strict enforcement thereof by the Company and are hereby waived by her.
(g) Nothing in Section 9 shall be deemed to prevent or prohibit the
Executive from making investments in her personal capacity unless such
investments are of a type that may conflict with the efficient performance of
her duties or with any of her obligations to the Company or any Affiliate
thereof; provided further that nothing contained herein shall preclude the
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Executive from purchasing or owning equity interests in any Person engaged in a
Competitive Business whose shares are traded on a recognized stock exchange or
over-the-counter market, so long as the Executive's holdings therein do not
exceed five percent (5%) of the issued and outstanding capital of the Person in
question.
(h) The Executive acknowledges and agrees that she has received good
and valuable consideration in exchange for her covenants and obligations under
this Agreement.
10. Effect of Agreement on Other Benefits. The existence of
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this Agreement shall not prohibit or restrict the Executive's entitlement to
full participation in the executive compensation, employee benefit and other
plans or programs in which executives of the Company are eligible to
participate.
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11. Miscellaneous.
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(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF NEW YORK WITHOUT REFERENCE TO PRINCIPLES OF CONFLICT OF LAWS.
The captions of this Agreement are not part of the provisions hereof and shall
have no force or effect. Whenever the terms "hereof", "hereby", "herein", or
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words of similar import are used in this Agreement they shall be construed as
referring to this Agreement in its entirety rather than to a particular section
or provision, unless the context specifically indicates to the contrary. Any
reference to a particular "Section" or "paragraph" shall be construed as
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referring to the indicated section or paragraph of this Agreement unless the
context indicates to the contrary. The use of the term "including" herein shall
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be construed as meaning "including without limitation." This Agreement may not
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be amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in writing
and shall be given by hand delivery to the other party or by registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to the Executive: Xxx Xxxxxxxxx
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TeleBermuda International Limited
0 Xxxxxx'x Xxx Xxxx
Xxxxxxxxx, Xx. Xxxxx'x
Xxxxxxx
If to the Company: TeleBermuda International Limited
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2 Xxxxxx'x Bay Road
Southside, St. David's
Bermuda
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notices and communications shall be effective
when actually received by the addressee.
(c) If any provision of this Agreement is held to be illegal, invalid
or unenforceable under present or future laws effective during the term of this
Agreement, such provision shall be fully severable; this Agreement shall be
construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a portion of this Agreement; and the remaining provisions of
this Agreement shall remain in full force and effect and shall not be affected
by the illegal, invalid or unenforceable provision or by its severance from this
Agreement. Furthermore, in lieu of such illegal, invalid or unenforceable
provision there shall be added automatically as part of this Agreement a
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provision as similar in terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and enforceable.
(d) The Company may withhold from any amounts payable under this
Agreement such federal, state or local taxes as shall be required to be withheld
pursuant to any applicable law or regulation.
(e) The Executive's or the Company's failure to insist upon strict
compliance with any provision of this Agreement or the failure to assert any
right the Executive or the Company may have hereunder, shall not be deemed to be
a waiver of such provision or right or any other provision or right of this
Agreement.
(f) The Executive acknowledges that money damages would be both
incalculable and an insufficient remedy for a breach of Section 6 or 9 by the
Executive and that any such breach would cause the Company irreparable harm.
Accordingly, the Company, in addition to any other remedies at law or in equity
it may have, and shall be entitled, without the requirement of posting of bond
or other security, to equitable relief, including injunctive relief and specific
performance, in connection with a breach of Section 6 or 9 by the Executive.
The Company shall be entitled to obtain such remedies from any court of
competent jurisdiction on a provisional basis pending the resolution of a
Dispute involving an alleged breach of Section 6 or 9, and without first
obtaining a provisional award authorizing such remedies from an arbitral panel.
(g) The provisions of this Agreement constitute the complete
understanding and agreement between the parties with respect to the subject
matter hereof, and this Agreement supersedes any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof,
including, but not limited to, that certain Executive Employment Agreement Term
Sheet between the Company and the Executive dated July 14, 1999.
(h) This Agreement may be executed in two or more counterparts.
(i) (i) The Executive and the Company shall endeavor initially to
resolve amicably any dispute, difference, claim, or controversy arising out of
or relating to this Agreement, or the breach thereof (a "Dispute") first by
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negotiation. The party claiming the existence of a Dispute shall provide
written notice to the other party specifying the nature and basis of the
Dispute. In the event that no agreement is reached within 30 days after notice
of the existence of a Dispute has been provided, either party shall have the
right to have such Dispute determined by arbitration as provided in this Section
11(i).
(ii) Any and all Disputes that are not resolved through
negotiation as set forth above shall be finally settled in a binding arbitration
administered by the American Arbitration Association (the "AAA") under its
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Commercial Arbitration Rules then in effect. The place of arbitration shall be
New York, New York. If the parties are unable to agree on the appointment of a
single arbitrator to conduct the
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arbitration within 20 days after the claimant has filed its demand for
arbitration, then the arbitration shall be conducted by a panel of three
arbitrators, appointed as follows: The Company and the Executive each shall
appoint one arbitrator, and the two arbitrators so appointed shall appoint the
third arbitrator, who shall chair the panel. No arbitrator may be affiliated,
associated, or related to the Company, any Affiliate, employee or executive of
the Company, or the Executive in any manner whatsoever.
(iii) The award of the arbitrators shall be final and binding, and
judgment upon any such award may be entered by any court of competent
jurisdiction. The arbitrators shall have no authority to award damages in
excess of compensatory damages, and each party hereby irrevocably waives any
right to recover such non-compensatory damages (including exemplary damages,
treble damages, and any other penalty or type of punitive damages) with respect
to any Dispute arising hereunder. Each party shall bear such party's own
expenses related to any arbitration, but the parties shall share equally the
expenses of the arbitration tribunal and the AAA.
(j) This Section 11(j) and Sections 4, 5, 6, 7 and 9 of this Agreement
shall survive the termination of this Agreement and termination of this
Agreement shall not release any party hereto from any liability arising out of
its breach of this Agreement prior to termination.
(k) The Executive represents and warrants to the Company that, to the
best of her personal knowledge and belief, neither the execution and delivery
of this Agreement, her commencement of employment hereunder nor the performance
of her duties hereunder conflicts with any contractual commitment on her part
owed to any third party or violates or interferes with any rights of any third
party.
(l) The Company or any of its Affiliates shall have the right to
secure, in its own name or otherwise, and at its own expense, life, disability,
accident or other insurance covering the Executive and the Executive shall have
no right, title or interest in or to such insurance. The Executive shall assist
the Company in procuring such insurance by submitting to reasonable examinations
and signing such applications and other instruments as may be required by the
insurance carriers to which applications is made for any such insurance.
(m) At the request of the Company, the Executive shall (unless the
Executive has already done so) execute the necessary documents to become a party
to (i) the Amended and Restated Securityholders' Agreement dated July 14, 1999,
by and among GlobeNet and various other parties including various shareholders
of GlobeNet and (ii) the Registration Rights Agreement referred to therein.
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IN WITNESS WHEREOF, the Executive has hereunto set the Executive's
hand and, pursuant to the authorization from the Board, the Company has caused
this Agreement to be executed in its name on its behalf, all as of the day and
year first above written.
EXECUTIVE
/s/ Xxx Xxxxxxxxx
------------------------------
Xxx Xxxxxxxxx
TELEBERMUDA INTERNATIONAL
LIMITED
By: /s/ Xxxxxxx Xxxxx
---------------------------
Name: Xxxxxxx Xxxxx
-------------------------
Title: Chairman
-------------------------
14
Exhibit A
Attached to and made a part of that certain Executive Employment Agreement
dated as of October 1, 1999, between Xxx Xxxxxxxxx and TeleBermuda International
Limited.
1. Annual Base Salary: $205,000 (U.S.) per calendar year
------------------
(to be prorated in respect of calendar year 1999)
2. Bonus: up to $102,500 (U.S.) (to be prorated in respect of
-----
calendar year 1999), as determined by the Board in its sole
discretion.
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