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Exhibit 10.4
Exhibit 10.4 is a form of Employment Agreement entered into between each of
the below named executive officers and significant employees. Each employment
agreement is identical in form with the exception of the base salary, restricted
stock grants, options and exercise price and severance payments; all of which
are set forth in the following tables.
SUMMARY SHEET OF PRINCIPAL TERMS
TO FORM OF EMPLOYMENT AGREEMENTS
The Company entered in employment agreements with its Executive
Officers and the following key employees:
Date Expiration
Employee Position Entered Date
Xxxxxx X. Xxxxxxx Chief Executive Officer 15-May-00 15-May-03
and Chairman
Xxxxxx X. Xxxxxxxxxx President 15-May-00 15-May-03
Pere Xxxxxx Chief Financial Officer 28-Dec-00 15-May-03
Colum X. Xxxxxxx Chief Operating Officer 15-May-00 15-May-03
and Secretary
Xxxx Xxxxxx VP of Network Planning 15-May-00 15-May-03
Xxxx Xxxxxxxxxx Director of Engineering 15-May-00 15-May-03
Xxx Broa Director of Operations 15-May-00 15-May-03
Xxxxx Xxxxxx Controller 15-May-00 15-May-03
Xxxxx Xxxxxx Director of Administration 15-May-00 15-May-03
The table summarizes the principal terms of the employment agreements:
Option Grants
------------------
Restricted
Base Stock No. of Exercise Severance
Employee Salary Grants options price Payment
-------- ------ ------ ------- ----- -------
Xxxxxx X. Xxxxxxx 230,000 75,000 250,000 8.00 18 Months
Xxxxxx X. Xxxxxxxxxx 200,000 425,000 225,000 8.00 12 Months
Pere Xxxxxx 175,000 425,000 150,000 0.75 12 Months
Colum X. Xxxxxxx 150,000 75,000 200,000 8.00 12 Months
Xxxx Xxxxxx 180,000 125,000 75,000 8.00 6 Months
Xxxx Xxxxxxxxxx 125,000 35,000 100,000 8.00 6 Months
Xxx Broa 110,000 75,000 75,000 8.00 6 Months
Xxxxx Xxxxxx 75,000 115,000 100,000 8.00 6 Months
Xxxxx Xxxxxx 70,000 125,000 100,000 8.00 12 Months
The stock granted to the employees vests in the following manner: 44% on
September 15, 2001, 22% on May 15, 2002 and 34% on May 15, 2003. The options
have the following vesting schedule: 33% on May 15, 2001, 33% on May 15, 2002
and 33% on May 15, 2003.
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The Company may terminate the employment agreements only for cause. In
case of termination without cause, the employee is entitled to the severance
payment shown on the table above and to the acceleration in the vesting of the
stock and options granted.
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FORM OF EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is entered into by and between GlobalNet
International, Inc., a Delaware corporation (the "Company"), and Xxxxxx Xxxxxx
Xxxxxxx, the undersigned individual ("Executive").
RECITALS
WHEREAS, the Company has or will participate in a reorganization
transaction resulting in the merger of DTAS Corporation, DTAC Corporation, and
Xxxxxxx Holdings, Inc. (the "Reorganization Transaction");
WHEREAS, the Company is presently contemplating a merger transaction
that would result in the merger of the Company with Rich Earth, Inc., a Delaware
corporation (the "Merger Transaction");
WHEREAS, the Company wishes to provide Executive with certain equity
incentives that are conditioned upon, among other things, the Company
consummating both the Reorganization Transaction and the Merger Transaction;
WHEREAS, the Company contemplates that the terms and conditions of this
Employment Agreement shall survive the Reorganization Transaction and the Merger
Transaction and be binding upon any successor to the Company subject to the
consent and approval of such successor company;
WHEREAS, the Company and Executive desire to enter into an Employment
Agreement setting forth the terms and conditions of Executive's employment with
the Company.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the Company and Executive agree as follows:
1. Employment.
A. The Company hereby employs Executive to serve as its
Chairman and Chief Executive Officer, and in such other positions as
the Company may determine in its sole discretion from time to time. The
term of employment shall commence on March 1, 2000 and expire on May
15, 2003 (the "Employment Period" or "Term"), provided that this
contract shall automatically renew for successive one year periods
provided that during any renewal term either party shall have the right
to terminate the agreement upon thirty (30) days advance
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written notice. The term shall be for the Employment Period, plus any
renewal term, unless earlier terminated as set forth herein.
B. Duties and Responsibilities. Executive shall have the
duties and responsibilities as assigned to him from time to time by the
Chief Executive Officer and the Board of Directors of the Company.
C. Location. The initial location at which Executive shall
perform services for the Company shall be the Chicago area.
2. Compensation.
(a) Base Salary. Executive shall be paid a base salary equal
to $230,000 per year ("Base Salary"), payable in no less than monthly
installments consistent with Company's payroll practices. Executive's
Base Salary shall be reviewed on an annual basis, by the Board of
Directors of the Company to determine if such Base Salary should be
increased for the following year in recognition of services to the
Company.
(b) Executive may also be eligible to receive an annual
performance bonus (the "Performance Bonus") each year based on the
Company meeting annual revenue and earning targets (the "Performance
Targets") established by the Board of Directors after consultation with
the Executive. In the event that a Performance Bonus is earned by the
Executive, it shall be payable within ninety (90) days after the end of
each calendar year subject to the Executive being employed at the end
of such calendar year or at such other time as the Board of Directors
may determine.
(c) Payment. Payment of all compensation and bonuses to
Executive hereunder shall be made in accordance with the relevant
Company policies in effect from time to time, including normal payroll
practices, and shall be subject to all applicable employment and
withholding taxes.
3. Other Employment Benefits.
(d) Business Expenses. Upon submission of itemized expense
statements in the manner specified by the Company, Executive shall be
entitled to reimbursement for reasonable ordinary and necessary
business and travel expenses duly incurred by Executive in the
performance of his duties under this Agreement.
(e) Benefit Plans. Executive and his immediate family shall be
entitled to participate in the Company's medical and dental plans, life
and disability insurance plans and retirement plans subject to the
terms and conditions of such plans and the policies of the Company.
Executive shall be entitled to participate in any other benefit plan
offered by the Company to its employees during the term of this
Agreement (other than stock option or stock incentive plans, which are
governed by Sections 3(d) and (e) below). Nothing in this Agreement
shall
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preclude the Company or any affiliate of the Company from terminating
or amending any employee benefit plan or program from time to time.
(f) Vacation. Executive shall be entitled to fifteen (15)
working days of vacation for each full calendar year of service to the
Company, exclusive of legal holidays, as long as the scheduling of
Executive's vacation does not interfere with the Company's normal
business operations. Vacation days shall accrue on a monthly basis and
any unused vacation days which have accrued through the date of
termination shall be paid to Executive and any vacation days used, but
not accrued shall be paid by Executive to Company, or deducted from any
amounts due Executive. Vacation days shall be prorated for any partial
year of service to the Company. Vacation days not used during a
calendar year shall be carried forward until March 31 of the following
year after which such vacation time shall be forfeited.
(g) Stock Options. As of May 15, 2000, the Company grants to
Executive, options to purchase 25 shares of the Common Stock of the
Company; provided, however, that such options shall not become
exercisable unless and until the Company completes the Reorganization
Transaction and the Merger Transaction. Upon the consummation of the
Reorganization Transaction and the Merger Transaction, these options
will convert into the right to buy 250,000 shares of Common Stock (the
"Options") of Rich Earth, Inc. ("Rich Earth"), the name of which will
be changed to GlobalNet, Inc. and will be governed by the GlobalNet,
Inc. 2000 Stock Plan (the "Equity Incentive Plan") and any stock option
agreement representing the Options. The Equity Incentive Plan shall be
subject to the approval of the shareholders and directors of Rich Earth
prior to or within a reasonable period of time after the consummation
of the Merger Transaction. The Options shall be further subject to the
following vesting schedule and other terms and conditions:
(i) The Options will vest only as follows:
II. Event Vesting Amount
1) If Executive is still an One-third of the Options
employee of the Company
on May 15, 2001.
2) If Executive is still an One-third of the Options
employee of the Company
on May 15, 2002.
3) If Executive is still an One-third of the Options
employee of the Company
on May 15, 2003.
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(ii) The exercise price under the Options shall be $8.00 per
share of Common Stock of Rich Earth, the fair market value of the
Common Stock on the date of grant of the Options, provided that there
shall be no adjustment to the exercise price as a result of the
Reorganization Transaction or the Merger Transaction.
(iii) The vested Options shall be exercisable until the
earlier of five (5) years after vesting or ninety (90) days after
termination of Executive's employment with the Company. Subject to
Section 13, no additional vesting of the Options shall occur after
Executive's death, disability, or cessation of employment with the
Company for any reason.
(iv) Issuance of the Options shall be in accordance with all
applicable securities laws and the other terms and conditions of the
Company's Equity Incentive Plan. Executive acknowledges that the Equity
Incentive Plan contains additional covenants, conditions, and
restrictions that shall be applicable to this grant and may provide for
the execution of additional documents in connection with the grant,
exercise or disposition of these Options and the underlying Common
Stock.
(v) Executive acknowledges that the Company does not make, nor
has it authorized anyone to make on its behalf, any representations or
warranties as to the value of the Options or the Common Stock
underlying the Options today or in the future. Executive understands
and acknowledges that both the Options and the underlying Common Stock
may have no value. Executive understands and acknowledges that in the
event the Company or Rich Earth makes available its capital stock,
including without limitation its Common Stock, in a public offering or
a private placement, it is likely that the outstanding securities,
including without limitation its Common Stock underlying the Options,
could be subject to a reverse split.
(vi) Executive and Company agree that that portion of the
Options that qualify for treatment as Incentive Stock Options in
accordance with Section 422 of the Internal Revenue Code shall be
treated by the parties as such. Executive acknowledges that the
following additional rules may apply to the treatment of Incentive
Stock Options:
(a) The exercise price and vesting period of any
Stock Option intended to be treated as an Incentive Stock
Option must comply with the provisions of Section 422 of the
IRC and the regulations thereunder. As of the Effective Date,
such provisions require, among other matters, that: (A) the
exercise price must not be less than the Fair Market Value of
the underlying stock as of the date the Incentive Stock Option
is granted, and not less than 110% of the Fair Market Value as
of such date in the case of a grant to a Significant
Stockholder; and (B) that the Incentive Stock Option not be
exercisable after the expiration of ten (10) years from the
date of grant
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or the expiration of five (5) years from the date of grant in
the case of an Incentive Stock Option granted to a Significant
Stockholder.
(b) The aggregate Fair Market Value (determined as of
the respective date or dates of grant) of the Common Stock for
which one or more Options granted to any Recipient under this
Plan (or any other option plan of the Company or any of its
subsidiaries or affiliates) may for the first time become
exercisable as Incentive Stock Options under the federal tax
laws during any one calendar year may not exceed $ 100,000.
(c) Any Stock Options granted as Incentive Stock
Options pursuant to this Plan that for any reason fail or
cease to qualify as such will be treated as Nonqualified Stock
Options. If the limit described in subsection (2) above is
exceeded, the earliest granted Stock Options will be treated
as Incentive Stock Options, up to such limit.
(h) Car. At all times during the Employment Period, the
Company shall, at its expense, reimburse the Executive for lease
payments not to exceed $1,500 per month with respect to a late model
car of style and make of the Executive's choosing.
(i) No Other Benefits. Except as may be approved by the
Company in writing, Executive understands and acknowledges that the
compensation and benefits specified in Sections 2 and 3 of this
Agreement shall be in lieu of any and all other compensation, benefits
and plans.
4. Executive's Business Activities. Executive shall devote his entire
business time, attention and energy exclusively to the business and affairs of
the Company and its affiliates, as its business and affairs now exist and as
they hereafter may be changed. Executive may serve as a member of the Board of
Directors of other organizations that do not compete with the Company, and may
participate in other professional, civic, governmental organizations and
activities that do not materially affect his ability to carry out his duties
hereunder. Provided however, this section shall not be construed as preventing
the Executive from (a) investing his personal assets in businesses which do not
compete with the Company in such form or manner as will not require any services
on the part of the Executive in the operation or the affairs of the companies in
which such investments are made and in which his participation is solely that of
an investor, (b) purchasing securities in any corporation whose securities are
regularly traded provided that such purchase shall not result in his
collectively owning beneficially at any time one percent or more of the equity
securities of any corporation engaged in a business competitive to that of the
Company, and (c) participating in conferences, preparing or publishing papers or
books or teaching so long as the Board of Directors approves of such activities
prior to the Executive's engaging in them. Prior to commencing any activity
described in clause (c) above, the Executive shall inform the Board of Directors
of the Company in writing of any such activity.
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5. Termination of Employment.
(j) For Cause. Notwithstanding anything herein to the
contrary, the Company may terminate Executive's employment hereunder
for cause for any one of the following reasons: (i) conviction of a
felony, any act involving moral turpitude, or a misdemeanor where
imprisonment is imposed, (ii) commission of any act of theft, fraud,
dishonesty, or falsification of any employment or Company records,
(iii) improper disclosure of the Company's confidential or proprietary
information, (iv) any action by the Executive which has a material
detrimental effect on the Company's reputation or business, (v)
Executive's failure or inability to perform any reasonable assigned
duties after written notice from the Company of, and a reasonable
opportunity to cure, such failure or inability, (vi) any breach of this
Agreement, which breach is not cured within ten (10) days following
written notice of such breach, (vii) a course of conduct amounting to
gross incompetence, (viii) chronic and unexcused absenteeism, (ix)
unlawful appropriation of a corporate opportunity, (x) a violation of
employment policies, rules, and regulations (including rules
prohibiting sexual harassment or discrimination), or (xi) misconduct in
connection with the performance of any of Executive's duties,
including, without limitations misappropriation of funds or property of
the Company, securing or attempting to secure personally any profit in
connection with any transaction entered into on behalf of the Company,
misrepresentation to the Company, or any willful violation of law or
regulations on Company premises or to which the Company is subject.
Upon termination of Executive's employment with the Company for cause,
the Company shall be under no further obligation to Executive, except
to pay all accrued but unpaid base salary and accrued vacation to the
date of termination thereof. In the event of a termination for cause,
all non-vested Awards shall terminate and no longer be exercisable.
(k) Without Cause. The Company may terminate Executive's
employment hereunder at any time upon thirty (30) days advance written
notice without cause, provided, however, that Executive shall be
entitled to severance pay in the amount of two (2) years of Base Salary
in addition to accrued but unpaid Base Salary and accrued vacation,
less deductions required by law, but if, and only if, Executive
executes a valid and comprehensive release of any and all claims that
the Executive may have against the Company in a form provided by the
Company within ten (10) days of tender. In the event that the Company
terminates Executive without cause, all non-vested Awards shall
immediately vest and be exercisable. Executive may terminate his
employment with the Company upon thirty (30) days advance written
notice, provided that Executive shall not be entitled to any severance
pay and all non-vested Awards shall immediately terminate and no longer
be exercisable.
(l) Voluntary Termination Upon Change of Control. Executive
may voluntarily terminate his employment under this Agreement within
six (6) months following a Change of Control, as described in paragraph
13, upon 30 days written notice and the Employee shall thereupon be
entitled to receive the severance payment described herein, upon the
occurrence of any of the following events, which have not been
consented to in advance by the Employee in writing: (i) the requirement
that the Employee move his personal residence, or perform his principal
Employee functions, more than 50 miles
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from his primary office as of the date of the Change of Control, (ii),
the material reduction in the Employee's Base Compensation or Variable
Compensation as in effect on the date of the Change of Control of as
the same may be increased from time to time, or (iii) the failure by
GlobalNet to continue to provide the Employee with compensation and
benefits provided for under the agreement, as the same may increased
from time to time, or the taking of any action by GlobalNet which would
reduce any such benefits in a material way or deprive the Employee of
any material fringe benefit enjoyed by him at the time of the Change of
Control, provided that such reduction is not part of a GlobalNet-wide
reduction which affects all employees or all similarly situated
employees.
(m) Resignation. Upon termination of employment, Executive
shall be deemed to have resigned as an officer and/or a director of the
Company, if he or she holds any such office or directorship.
(n) Cooperation/Disrepute. After notice of termination,
Executive shall cooperate with the Company, as reasonably requested by
the Company, to effect a transition of Executive's responsibilities and
to ensure that the Company is aware of all matters being handled by
Executive. During the Employment Period or any time thereafter,
Executive agrees not to make any oral or written public statements
disparaging the Company or any Company Affiliates.
6. Disability of Executive. The Company may terminate this Agreement
without liability if Executive shall be permanently prevented from properly
performing his essential duties hereunder with reasonable accommodation by
reason of illness or other physical or mental incapacity for a period of more
than 180 consecutive days. Upon such termination, Executive shall be entitled to
all accrued but unpaid Base Salary and vacation.
7. Death of Executive. In the event of the death of Executive during
the Employment Period, the Company's obligations hereunder shall automatically
cease and terminate provided, however, that within 15 days the Company shall pay
to the Executive's heirs or personal representatives Executive's Base Salary and
accrued vacation accrued to the date of death. Executive shall be entitled to
all Awards that have vested through the date of death and all non-vested Awards
shall continue to vest pursuant to the schedule in Section 3(d) as if Executive
were still an employee of the Company.
8. Confidential Information and Invention Assignments. Executive is
simultaneously executing an Employee Non-Disclosure Agreement (the
"Non-Disclosure Agreement"). The obligations under the Non-Disclosure Agreement
shall survive termination of this Agreement.
9. Covenant Not to Compete.
(o) Covenant. Executive covenants and agrees with the Company that
except as expressly approved by the Board of Directors of the Company, from and
after the date of
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this Agreement until two (2) years after the date the employment of Executive by
the Company terminates for any reason (the "Ending Date"), Executive, and
Executives' Affiliates, shall not directly or indirectly:
(i) except as an officer or employee of the Company (or any
successor corporation into which it may be merged or consolidated),
engage in, control, advise, manage, serve as a director, officer, or
employee of, act as a consultant to, receive any economic benefit from,
have any financial interest in or exert any influence upon, any
business which conducts activities in the Territory (as hereinafter
defined) similar to those conducted by the Company (or any successor
corporation into which the Company may be merged or consolidated),
provided that this restriction shall not apply to any activity in
connection with a business that does not actually or potentially
compete with the activities of the Company (or any successor
corporation into which the Company may be merged or consolidated);
(ii) except in connection with any duties as an officer or
employee of the Company (or any successor corporation into which they
may be merged or consolidated), solicit, divert or attempt to solicit
or divert any party who is, was, or was solicited to become, a customer
or supplier of the Company at any time prior to the date of this
Agreement, provided that this restriction shall not apply to any
activity on behalf of a business that does not actually or potentially
compete with the activities of the Company (or any successor
corporation into which the Company may be merged or consolidated);
(iii) employ, solicit for employment or encourage to leave
their employment, in each case, either as an employee, agent or
representative, any person who was during the one year period prior to
such employment, solicitation or encouragement or is an officer,
employee, agent or representative of the Company (or any successor
corporation into which the Company may be merged or consolidated);
(iv) avail himself of or invest in any business opportunity
which is related to the activities conducted by the Company (or any
successor corporation into which the Company may be merged or
consolidated), and which came to his attention prior to the Ending
Date,
(v) disturb, or attempt to disturb, any business relationship
between any third party and the Company (or any successor corporation
into which the Company may be merged or consolidated); or
(vi) make any statement to any third party, including the
press or media, likely to result in adverse publicity for the Company
(or any successor corporation into which the Company may be merged or
consolidated).
(p) Certain Remedies.
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(i) In the event Executive or any Affiliate of Executive
engages in any activity prohibited by subsections (a) above, Executive
shall forfeit to the Company any non-vested Awards and all fights and
amounts then remaining due to Executive or any Affiliate of Executive
under this Agreement, including any remaining payments or installments
due Executive, it being expressly understood and agreed, however, that
such forfeiture shall not be the Company's sole remedy for such breach
or otherwise limit the Company's other remedies available to it upon
the occurrence of such breach.
(ii) Executive has reviewed the provisions of subsection (a)
above with his legal counsel and he acknowledges that the Company would
be irreparably injured by a violation of such subsections. Executive
agrees that the Company, in addition to any other remedies available to
it for such breach or threatened breach, shall be entitled to a seek
preliminary injunction, temporary restraining order, or other
equivalent relief, restraining Executive from any actual or threatened
breach of any provision of subsection (a) above. If a bond is required
to be posted in order for the Company to secure an injunction or other
equitable remedy, the parties agree that said bond need not exceed a
nominal sum.
X. Xxxxxxxxx. If at any time any of the provisions of subsections (a)
or (b) above shall be determined to be invalid or unenforceable by reason of
being vague or unreasonable as to duration, area, scope of activity or
otherwise, then such subsections shall be considered divisible (with the other
provisions to remain in full force and effect), and the invalid or unenforceable
provisions shall become and be deemed to be immediately amended to include only
such time, area, scope of activity and other restrictions, as shall be
determined to be reasonable and enforceable by the court or other body having
jurisdiction over the matter, and Executive expressly agrees that this
Agreement, as so amended, shall be valid and binding as though any invalid or
unenforceable provision had not been included herein.
C. Certain Terms. As used above, the term "directly or indirectly"
shall include acts or omissions as proprietor, partner, joint venturer,
employer, salesman, agent, representative, employee, officer, director, lender
to or consultant for, or owner of any equity or other interest in, any person or
entity; the term "Territory" shall mean all States and foreign countries in
which the Company (or any successor corporation into which the Company may be
merged or consolidated) has transacted business or has proposed to transact
business, whether verbally or in writing, prior to the Ending Date; and the term
"Affiliate" includes (i) any member of Executive's immediate family and/or (ii)
any person or entity which Executive or any affiliate of Executive controls
and/or owns, directly or indirectly, an equity or similar interest of 1% or
more.
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10. Assignment and Transfer. Executive's rights and obligations under
this Agreement shall not be transferable by assignment or otherwise, and any
purported assignment, transfer or delegation thereof shall be void. This
Agreement shall inure to the benefit of, and be binding upon and enforceable by,
any purchaser of substantially all of Company's assets, any corporate successor
to Company, by merger or otherwise, or any assignee thereof.
11. No Inconsistent Obligations. Executive is aware of no obligations,
legal or otherwise, inconsistent with the terms of this Agreement or with his
undertaking employment with the Company. Executive will not disclose to the
Company, or use, or induce the Company to use, any proprietary information or
trade secrets of others. Executive represents and warrants that he or she has
returned all property and confidential information belonging to all prior
employers.
12. Miscellaneous.
(q) Suit Against Company. Other than an action to enforce the payment
of Compensation provided for in Section 2 of this Agreement or an action to
enforce the delivery of vested stock options provided for in Section 3(d)
respectively, in the event that Executive brings any other action whatsoever
against the Company for any reason, all non-vested Awards shall immediately
terminate upon commencement of such action and shall no longer be exercisable.
(r) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois without regard to conflict of
law principles.
(s) Entire Agreement. This Agreement, together with the attached Equity
Incentive Plan, Non Disclosure Agreement, and any other documents or exhibits
referenced herein, contain the entire agreement and understanding between the
parties hereto and supersedes any prior or contemporaneous written or oral
agreements, representations and warranties between them respecting the subject
matter hereof.
(t) Amendment. This Agreement may be amended only by a writing signed
by Executive and by a duly authorized representative of the Company.
(u) Severability. If any term, provision, covenant or condition of this
Agreement, or the application thereof to any person, place or circumstance,
shall be held to be invalid, unenforceable or void, the remainder of this
Agreement and such term, provision, covenant or condition as applied to other
persons, places and circumstances shall remain in full force and effect.
(v) Construction. The headings and captions of this Agreement are
provided for convenience only and are intended to have no effect in construing
or interpreting this Agreement. The language in all parts of this Agreement
shall be in all cases construed according to its fair meaning and not strictly
for or against the Company or Executive. The recitals contained in this
Agreement are incorporated into the terms and conditions of this Agreement and
shall form a part hereof.
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(w) Rights Cumulative. The rights and remedies provided by this
Agreement are cumulative, and the exercise of any right or remedy by either
party hereto (or by its successor), whether pursuant to this Agreement, to any
other agreement, or to law, shall not preclude or waive its right to exercise
any or all other rights and remedies.
(x) Nonwaiver. No failure or neglect of either party hereto in any
instance to exercise any right, power or privilege hereunder or under law shall
constitute a waiver of any other right, power or privilege or of the same right,
power or privilege in any other instance. All waivers by either party hereto
must be contained in a written instrument signed by the party to be charged and,
in the case of the Company, by an officer of the Company (other than Executive)
or other person duly authorized by the Company.
(y) Remedy for Breach. The parties hereto agree that, in the event of
breach or threatened breach of any covenants of Executive, the damage or
imminent damage to the value and the goodwill of the Company's business shall be
difficult to ascertain, and that therefor any remedy at law or in damages shall
be inadequate. Accordingly, the parties hereto agree that the Company shall be
entitled to seek injunctive relief against Executive in the event of any breach
or threatened breach of any of such provisions by Executive, in addition to any
other relief (including damages) available to the Company under this Agreement
or under law.
(z) Notices. Any notice, request, consent or approval required or
permitted to be given under this Agreement or pursuant to law shall be
sufficient if in writing, and if and when either (i) hand delivered, (ii) sent
by facsimile provided there is proof of transmission, or (iii) sent by certified
or registered mail, with postage prepaid, to Executive's residence (as noted in
the Company's records), or to the Company's principal office, as the case may
be.
(aa) Assistance in Litigation. Executive shall, during and after
termination of employment, upon reasonable notice, furnish such information and
proper assistance to the Company as may reasonably be required by the Company in
connection with any litigation in which it or any of its subsidiaries or
affiliates is, or may become a party; provided, however, that such assistance
following termination shall be furnished at mutually agreeable times and for
mutually agreeable compensation.
(bb) Disputes. Any controversy, claim or dispute arising out of or
relating to this Agreement or the employment relationship, either during the
existence of the employment relationship or afterwards, between the parties
hereto, their assignees, their affiliates, their attorneys, or agents, shall be
litigated solely in state or federal court in Chicago, Illinois. Each party (1)
submits to the jurisdiction of such court, (2) waives the defense of an
inconvenient forum, (3) agrees that valid consent to service may be made by
mailing or delivery of such service to the Illinois Secretary of State (the
"Agent") or to the party at the party's last known address, if personal service
delivery can not be easily effected, and (4) authorizes and directs the Agent to
accept such service in the event that personal service delivery can not easily
be effected.
13. Change in Control.
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(cc) Definitions. For purposes of this Agreement, a "Change in Control"
of the Company is deemed to have occurred as of the first day that any one or
more of the following conditions shall have been satisfied:
(i) the "Beneficial Ownership" of securities
representing more than fifty percent (50%) of the combined
voting power of the Company is acquired by any "person" as
defined in Section 13(d) and 14(d) of the Exchange Act (other
than any beneficial owner of more than 20% of the Rich Earth
stock as of the consummation of the Merger Transaction and
other than the Company, any trustee or other fiduciary holding
securities under an employee benefit plan of the Company, or
any corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company); or
(ii) the stockholders of the Company approve a
definitive agreement (1) to merge or consolidate the Company
with or into another corporation if, following the merger or
consolidation, the stockholders of the Company will possess
less than fifty percent (50%) of the total voting power of the
surviving entity, or (2) to sell or otherwise dispose of all
or substantially all of the Company's assets.
D. Excluded Transaction. For purposes of this Section 13, a
"Change in Control" shall not include the Reorganization Transaction,
Merger Transaction, or any other transaction entered into by and
between the Company or its shareholders or affiliates and Rich Earth,
Inc. or its shareholders or affiliates (collectively "Rich Earth").
Upon the occurrence of any transaction with Rich Earth, any surviving
corporation or acquiring corporation shall assume any Awards
outstanding under this Agreement or shall substitute similar awards for
those outstanding under the Agreement. Upon any such transaction with
Rich Earth, the Beneficial Ownership of the Company for purposes of
determining any future Change of Control shall include all shareholders
of the Company and any surviving or acquiring corporation resulting
from any Rich Earth transaction.
E. Acceleration of Vesting. In the event there is a "Change in
Control" which is not an excluded transaction described in Section
13(b) above, all non-vested Awards shall immediately vest and be
exercisable.
EACH PARTY, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN
ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER MATTER INVOLVING THE PARTIES HERETO.
NOTICE: EXECUTIVE REPRESENTS THAT HE HAS BEEN REPRESENTED BY INDEPENDENT COUNSEL
IN CONNECTION WITH THE NEGOTIATION AND EXECUTION OF THIS EMPLOYMENT AGREEMENT
AND THE
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CONSIDERATION OF THE TAX IMPACTS OF ALL COMPENSATION, AND STOCK OPTIONS.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of May 15, 2000.
COMPANY: EXECUTIVE:
GLOBALNET INTERNATIONAL, INC.
By:__________________________ ___________________________________
Name:________________________ Name: Xxxxxx Xxxxxx Xxxxxxx
Title:_______________________ Address: 000 Xxxx Xxxxx
Xxxxx Xxxx, XX 00000
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