EXHIBIT 10.43
February 23, 2000
Xxxx Xxxx
00 Xxx Xxxxx Xxxx
Xxxxxxxxx Xxxx, Xxx Xxxxxx 00000
Dear Xx. Xxxx:
The purpose of this letter is to set forth the agreement (the
"Agreement") between you and Viatel, Inc. and its subsidiaries and predecessors
(hereinafter referred to collectively as "Viatel") regarding your resignation
from Viatel as an employee and director.
1. RESIGNATION/TRANSITION SERVICES. (a) Viatel accepts your
resignation as an officer and director of Viatel effective February 23, 2000
(the "Effective Date"). From the date hereof through and including March 31,
2000 (the "Termination Date"), you shall continue to provide services to Viatel
as a non-executive employee, for a maximum of twenty (20) hours per week, which
will be performed in a maximum of three (3) business days per week. In the event
that you perform services in excess of twenty (20) hours in any week, your time
commitment for any subsequent week will be reduced by the amount of any such
excess hours. From the date hereof through the Termination Date (the "Transition
Period"), you will report solely to Xxxxxxx Xxxxxx and will assist him with
regard to transitional issues. Viatel acknowledges and agrees that the principal
location for the performance of such transitional services will be either at
your principal residence in Woodcliff Lake, New Jersey or at Viatel's offices in
Now York, except that, upon reasonable notice, Viatel may reasonably request
that you perform such act-Vices in the United Kingdom or in any other country in
which Viatel conducts its business. In the event you are requested to perform
services outside the United States, Viatel will assist you with regard to
planning your travel arrangements and will pay for your business expenses
associated with any such business trip (which shall include business-class
airfare). Notwithstanding anything herein to the contrary, Viatel acknowledges
that you will be taking a one-week vacation paid by Viatel for the week
commencing March 25, 2000 and that you will not be required to perform any
service during that week, however, you agree to be reasonably available by phone
to respond to any issues that may arise.
(b) Through the Termination Date, Viatel will reimburse you for all
unpaid business expenses incurred or paid by you prior to the Termination Date
in connection with the performance of your duties prior to the date hereof or
contemplated hereby, upon presentation of appropriate documentation in
accordance with Viatel's customary procedures and policies applicable to its
executives, Without limiting the generality of the foregoing Viatel acknowledges
that it is responsible fur, and shall promptly pay, all reasonable business
expenses billed to your corporate American Express card.
(c) You will have no authority to bind, make any commitments on behalf
of or, except as specifically contemplated hereunder, otherwise act an behalf of
Viatel in any manner whatsoever on or after the date hereof. You agree not to
take any action, or intentionally fail to take any action, which would cause any
third party to assume that you have any such authority.
2. PAYMENT AND BENEFITS. Viatel will provide you with the following
payments and benefits:
(a) SALARY. On the Effective Date, Viatel will pay you a cash lump sum
payment equal to the amount, if any, of accrued but unpaid base salary.
(b) TRANSITION PAYMENTS. During the Transition Period, Viatel will
continue to pay you your base salary, based on the rate of your current annual
base salary of $345,000, payable in accordance with Viatel's payroll practices
applicable to you in effect prior to the date hereof.
(c) BONUS. In the event that Viatel pays bonuses to its current senior
executives with employment agreements with respect to services performed in the
2000 calendar year, upon the earlier of (i) the date that bonuses are paid to
such Viatel executives with respect to the 2000 calendar year or (ii) January
31, 2001, Viatel will pay you a cash lump sum representing the pro rated portion
of your Bonus Award (as defined in your employment agreement with Viatel dated
August 27, 1999 (the "Employment Agreement")) as if you were employed for the
entire 2000 Performance Year (as defined in the Employment Agreement) and
multiplying such Bonus Award by a fraction, of which: (i) the numerator is the
number of days beginning of January 1, 2000 and ending on the Termination Date
and (ii) the denominator is 365. The parties hereto acknowledge that the Bonus
Award is intended to be calculated and made in accordance with Section 3.2(c) of
the Employment Agreement.
(d) SEVERANCE. Subject to Section 12 hereof, on the Termination Date,
Viatel will pay you a cash lump sum payment of $57,500, representing severance
equal to two (2) months' base salary. In addition to the foregoing, in the event
that JazzTel plc, any of its subsidiaries or any entity controlled, indirectly
or directly by, or under common control with, Xxxxxx Xxxxxxxxx, completes an
acquisition of Viatel commenced at any time from the date hereof to and
including August 23, 2000, Viatel will pay you a cash lump sum payment of
$500,000 (the "COC Severance Amount).
(e) 401(K)/RETIREMENT PLANS. You will be entitled to elect at anytime
on or after the Termination Date, a distribution of any vested accrued benefits
under any 401(k), pension or other type of retirement plan sponsored or
maintained by Viatel or any of its subsidiaries. Without limiting the generality
of the foregoing, on the Termination Date, Viatel will cause the trustee of the
Destia 401(k) Plan to distribute your entire account balance under such plan by
wire transfer in a direct rollover to an individual retirement account
established at Xxxxxxxxx, Xxxxxx & Xxxxxxxx ("DLJ") by you.
(f) BENEFIT PLAN PARTICIPATION. Viatel will continue to maintain any
health, disability, AD&D, business travel and life insurance coverage to which
you were entitled immediately prior to the date hereof, and Viatel will continue
to pay the employer portion of the applicable premiums, until the Termination
Date. On and after the Termination Date, you, your spouse and eligible
dependents may elect COBRA continuation health coverage for up to an 18-month
period or such longer period as provided in COBRA at your expense at the
standard COBRA rate applicable to other former employees. No later than the
Termination Date we will provide more information to you regarding COBRA
benefits and the election forms. Except with respect to your, your spouse's and
your eligible dependents' rights under COBRA, failure of Viatel to provide any
such information and forms, however, shall not in any event result in any
adverse impact on Viatel or any rights it may have under this Agreement.
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(g) NO OTHER COMPENSATION OR BENEFITS. Except as otherwise provided
herein, you will not be entitled to any compensation or benefits (or any
reimbursement therefor) or to participate in any employee benefit programs of
Viatel on or after the date hereof.
(h) TIMING OF PAYMENTS. Except with respect to the amounts
contemplated by Sections 2(c) and 2(d) hereof, each cash lump sum payment
provided under this Agreement shall be paid by Viatel on the Effective Date or
as soon as administratively practicable thereafter, but in no event later than
three (3) business days following the Effective Date. Any COC Severance Amount
shall be paid by Viatel immediately following any acquisition of Viatel
contemplated by Section 2(d) but in no event later than three (3) business days
after the consummation of such acquisition. The bonus described in Section 2(c)
shall be paid by Viatel in accordance with the terms of such section. The
severance (other than the COC Severance Amount) described on Section 2(d) shall
be paid on the Termination Date.
3. OPTIONS AND RESTRICTED STOCK. (a) You currently hold, either
directly or indirectly through Levy Investment Partners, L.P. options (the
"Options") to purchase a total of 1,356,109 shares of Viatel common stock, $.01
par value per share (the "Common Stock"), and 16,123 shares of restricted Common
Stock (the "Restricted Stock").
The Options currently held by you, either directly or indirectly,
consist of the following:
NUMBER OF COMMON STOCK
SUBJECT
GRANT DATE TO OPTIONS EXERCISE PRICE VESTED
---------- ---------- -------------- ------
10/31/96 850,667 $ 5.41 Yes
05/03/99 231,400 $22.41 Yes
05/03/99 115,700 $33.71 Yes
05/03/99 115,700 $44.94 Yes
01/01/00 42,642 $49.313 Become vested on
Termination Date
(b) Viatel hereby acknowledges and agrees that: (i) on January 31,
2000, you exercised an incentive stock option to purchase 11,058 shares of
Common Stock (granted on October 31, 1996); and (ii) on January 18, 2000, you
exercised an incentive stock option to purchase 62,909.96 shares of Common Stock
(granted on October 31, 1996), Viatel further acknowledges: (i) receipt of
payment of the aggregate exercise price in an amount equal to $399,984.55; and
(ii) that no withholding taxes apply to such exercise. On the date hereof or as
soon as administratively practicable thereafter but in no event after five (5)
business days from the date hereof, Viatel shall deliver to DLJ on your behalf
73,967 shares of Common Stock and cash equal to .96 of a share of Common Stock.
The incentive stock options described under this Section 3(b) shall be referred
to as the "Exercised ISOs."
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(c) Viatel and you hereby agree that notwithstanding any provision to
the contrary in: (i) the Amended and Restated Econophone, Inc. 1996 Flexible
Incentive Plan; (ii) the Incentive Stock Option Agreement between you and
Econophone, Inc., dated October 31, 1996; (iii) the Destia Communications, Inc.,
1999 Flexible Incentive Plan; (iv) the Incentive Stock Option Agreement between
you and Destia Communications, Inc., dated May 3, 1999; (v) Viatel, Inc. Amended
Stock Incentive Plan, or (vi) the Stock Option Agreement, dated January 3, 2000,
or the Restricted Stock Agreement, dated January 4, 2000, all options and shares
of Restricted Stock not currently vested on the date hereof shall vest on the
Termination Date (i.e., by June 30, 2000) and with respect to the Options
granted on January 4, 2000, be exercisable in full on the Termination Date
hereof and at any time within the thirty (30) day period following the
Termination Date (i.e., by May 1, 2000). On the Termination Date, the shares of
Restricted Stock shall no longer be restricted and shall be shares of Common
Stock.
(d) In the event that you fail to exercise any of the Options in full
by June 30, 2000 with respect to Options granted prior to January 4, 2000 and by
May 1, 2000 with respect to the Options granted on January 4, 2000, all
unexercised Options shall be forfeited. Viatel acknowledges that you may
exercise your Options and pay the applicable exercise price by any method
permitted by the applicable agreement. Viatel acknowledges and hereby represents
and warrants that:
(i) all shares of Common Stock subject to the Options or the
Exercised ISO and all shares of Common Stock which relate to
the Restricted Stock vested hereunder are validly registered on
a Form S-8 (registration statement) previously filed with the
Securities and Exchange Commission;
(ii) on and after the date hereof, you may sell, without
restriction, any shares of Common Stock acquired upon exercise
of the Options or the Exercised ISOs or by the vesting of
shares of Restricted Stock, except with respect to the volume
trading limitations under Rule 144 to the extent required
therein;
(iii) the grant of Restricted Stock and the January 4, 2000 option
grant were made by Viatel's Board of Directors or committee
consisting solely of at least two (2) "non employee directors"
(as such term is defined in Rule 16b-3 promulgated under
Section 16(b) of the Securities Exchange Act of 1934 (the
"Exchange Act"));
(iv) you will not be required to make any representation or warranty
to Viatel in connection with the exercise of any Option and
Viatel will not impose any impediments or restrictions on your
ability to exercise any of your Options;
(v) you will not be an "insider" under Section 16(a) of the
Exchange Act and, accordingly, you will not be subject to the
restrictions under Sections 16(a) and (b) of the Exchange Act
with regard to activities or transactions after the Effective
Date; and
(vi) Viatel shall deliver to you the shares of Common stock
underlying any Option no later than seven (7) business days
after you exercise any such Option.
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(e) Viatel and you agree that except as otherwise specified herein,
you shall have no entitlement to any incentive performance awards, including
awards or vesting of cash bonuses.
4. YOUR RELEASE. (a) In consideration of the payments and benefits
provided to you under this Agreement, you hereby release and discharge Viatel,
its affiliates and with respect to any actions, omissions, matter or events
relating to Viatel or its affiliates, their respective partners, directors,
officers, employees and agents (collectively, "Viatel Persons") from any and all
claims, actions, causes of action, damages, liabilities, promises, debts,
compensation, losses, obligations, costs or expenses of any kind or nature,
whether known or unknown, which you ever had, now have or hereafter may have,
against each or any of the Viatel Persons, including, but not limited to, those
arising from or related to your employment relationships with Viatel or the
termination of such employment, any alleged violation of any covenant of good
faith and fair dealing relative to your employment or any applicable labor or
employer-employee statute, regulation or ordinance, whether federal, state or
local (included by way of specificity but not of limitation, Title VII of the
Civil Rights Act of 1964, the Americans with Disabilities Act, the Civil Rights
Act of 1991, any amendments to such acts and any and all state and local
discrimination laws).
Notwithstanding the foregoing, the foregoing release shall not apply
to any payment, compensation, benefits or other rights to which you are entitled
under this Agreement.
(b) It is also agreed that this Agreement shall not be admissible in
any further proceedings between us except in a proceeding relating to a breach
of the provisions of this Agreement.
(c) SPECIFIC RELEASE OF ADEA CLAIMS. In consideration of the payments
and benefits provided to you under this Agreement you hereby release and forever
discharge Viatel, each of its subsidiaries and affiliates and each of their
respective officers, employees, directors and agents from any and all claims,
actions end causes of action that you may have as of the date you sign this
Agreement arising under the Federal Age Discrimination in Employment Act of
1967, as amended, and the applicable rules and regulations promulgated
thereunder ("ADEA"). By signing this Agreement, you hereby acknowledge and
confirm the following: (i) you were advised by Viatel in connection with your
termination to consult with an attorney of your choice prior to signing this
Agreement and to have such attorney explain to you the terms of this Agreement,
including, without limitation, the terms relating to your release of claims
arising under ADEA; (ii) you have been given a period of not fewer than
twenty-one (21) days to consider the terms of this Agreement and to consult with
an attorney of your choosing with respect thereto, and (iii) you are providing
the release and discharge set forth in this Section 4(c) only in exchange for
consideration in addition to anything of value to which you are already
entitled.
(d) You agree and understand that you shall not construe or treat an
aspect of the Agreement as any admission of liability of any Viatel Persons'
part.
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5. VIATEL RELEASE. (a) The Viatel Persons jointly and severally, all
and singularly, release and discharge you from any and all claims, actions,
causes of action, damages, liabilities, promises, debts, compensation, losses,
obligations, costs or expenses of any kind or nature, whether known or unknown,
which any of the Viatel Persons ever had, now have or hereafter may have against
you, including, but not limited to, those arising from or related to your
employment relationship with Viatel or the termination of such employment, any
alleged violation of any covenant of good faith or fair dealing, all common law
claims now existing or hereafter recognized, claims for negligence, breach of
fiduciary duty, interference with actual or prospective contractual relations,
misrepresentation, fraud, promissory, estoppel, equitable estoppel, breach of
contract or any other type of claim. Viatel does not waive or release any rights
set forth in this Agreement.
(b) It is agreed and understood that the Viatel Persons shall not
construe or treat any aspect of this Agreement as any admission of liabilities
on your part.
6. COOPERATIONS. From and after the date hereof, you will cooperate in
all reasonable respects with Viatel and its respective directors, officers,
attorneys and experts in connection with the conduct of any action, proceeding,
investigation or litigation involving Viatel, solely with respect to events or
actions which occurred when you were employed by Viatel; provided, however, that
you will be entitled to: (i) reasonable notice from Viatel of Viatel's request
hereunder; (ii) full reimbursement by Viatel of your documented costs and
expenses incurred in connection with your cooperation hereunder (including,
without limitation, your reasonable attorneys' fees and expenses); (iii) payment
by Viatel for your actual time spent cooperating with Viatel, as described
herein, at any hourly rate of $300.00 per hour; and (iv) be indemnified and held
harmless by Viatel for your actions taken in accordance with this paragraph.
7. CONFIDENTIALITY. You acknowledge that you have been provided access
to information regarding Viatel (including, but not limited to, sales records,
operational systems customer lists, costs and specifications of Viatel products
and services, know-how, trade secrets, personnel information, research products,
development plans or projects, investments, marketing and other company
strategies and other proprietary information) which constitutes valuable,
special and unique property of Viatel. You agree that you will not, at any time
or for any reason or purpose whatsoever, make use of, divulge or otherwise
disclose, directly or indirectly, any of such information to any person or use
any of such information without Viatel's express prior written authorization
provided, however, that the forgoing limitation shall not apply: (a) to the
extent as may be required by law; (b) to comply with any legal process or
subpoena (following advance notice to Viatel); (c) to statements in response to
authorized inquiry from a court or regulatory body (following advance notice to
Viatel); and (d) to information generally known in the industries related to
Viatel's business. Nothing herein shall prevent you from using your general
skills, general industry knowledge and experience.
8. ENGAGING IN COMPETITION WITH THE COMPANY. Through May 1, 2000,
except as Viatel may otherwise expressly agree in writing, you will not become
an employee, owner (except for passive investments of not more than five percent
of the outstanding shares of, or any other equity interest in any company or
entity listed or traded on a national securities exchange or in an
over-the-counter securities market), officer, agent, consultant or director of
any firm or person which (i) directly competes with Viatel's business of
developing, operating or expanding a facilities based telecommunications voice
or data network, including, by way of example and not limitation, any provider
of wireless voice or data services, any internet service provider, or any DSL or
local loop provider, that is competitive with Viatel's business within the
United States or any European country in which Viatel currently conducts any
business (including the solicitation of any customer of Viatel on behalf of any
competitor or any other business, directly, indirectly on behalf of himself or
any other person or entity) (collectively, "Competitive Activities"). Viatel and
you agree that the scope of your non-competition covenant will be as set forth
in this Section 8, notwithstanding any non-competition covenant contained in any
other agreement between you and the Company. Notwithstanding anything herein to
the contrary: (i) you shall be permitted to make minority investments in private
businesses in which you are neither employed nor serving as a director or
equivalent position; and (ii) this Section 8 shall become null and void on and
after May 1, 2000 and be of no further force or effect.
9. NON-SOLICITATION. For a period of eighteen (18) months from the
Termination Date, you shall not solicit, induce, counsel, advise or encourage
either directly or indirectly, any employee of Viatel who is employed in an
executive, managerial, professional or non-clerical administrative capacity to
leave the employment of Viatel.
10. NON-DISPARAGEMENT. You and Viatel will not at any time, and Viatel
shall use its best efforts to ensure that the Viatel Persons will not at any
time, make any statement, whether written or oral, or take any other action
which is intended, or could reasonably be expected to, disparage, defame or harm
the reputation (or otherwise cause adverse publicity) of the other party. In no
event shall any public statements be made about Viatel or you without the prior
written consent of the other party. You and Viatel also each agree that you will
not assist in any litigation or instigation against the other party except as
required by law.
11. NON-DISCLOSURE. You and Viatel agree that the terms and conditions
of this Agreement are confidential and that each will not, without the express
prior written consent of the other party, in any manner publish, publicize,
disclose, or otherwise make known or permit or cause to be known such terms and
conditions to anyone (other than such party's prospective or current lenders,
financial advisors and legal advisors, who shall agree to be bound by this
paragraph prior to disclosure of the terms and conditions hereof to such
persons), except as required by law, or in any proceeding to enforce then terms
of this Agreement. The parties hereto shall mutually agree in writing on the
terms of any statement or communication about the circumstances surrounding your
termination including, without limitation, the terms of any press release or
memo to any officer or employee of Viatel.
12. REMEDIES. If you or Viatel should breach each of your or Viatel's
obligations under the foregoing paragraphs, in addition to and not in lieu of
any other rights which either party may have at law or in equity and
contemplated by Section 13 hereof, the non-breaching party shall have the right
to obtain injunctive relief, it being acknowledged by the parties that any such
breach would cause irreparable harm and continuing injury to the non-breaching
party and that money damages alone would not provide an adequate remedy to the
non-breaching party. In the event you breach in a material manner your
obligations under Sections 6 through 11 hereof, Viatel shall also have the right
to declare (by written notice to you) and enforce the forfeiture of the cash
amounts payable under Sections 2(c) and 2(d) hereof. In the event Viatel
breaches in a material manner its obligations hereunder, you shall have the
right (by written notice to Viatel) to cease performing any services through
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April 1, 2000 and you shall not be required to comply with any of the
restrictive covenants under Sections 6 through 11 hereof, provided, however,
that if you cease to perform duties pursuant to this Section 12, your date of
cessation shall become your Termination Date and you will not be entitled to the
severance under Section 2(d) of this Agreement.
13. NO WAIVER. This Agreement constitutes the entire agreement and
understanding between you and Viatel and supersedes any prior agreement or
understanding, oral or written, between the parties, including, but not limited
to the Employment Agreement (except as specifically referred to herein). None of
the provisions of this Agreement can be waived or modified except in writing
signed by both parties. This Agreement shall be binding upon and inure to the
benefit of you and your heirs, legal administrators and assigns and Viatel's
successors and assigns (whether by merger, consolidation, purchase,
reorganization, sale of stock, sale of assets, liquidation or otherwise).
Furthermore, there are no agreements, covenants or understandings other than
those contained herein except as govern the compensation and benefit plans and
arrangements set forth herein.
14. SEVERABILITY. If any term or provision of this Agreement shall be
held invalid or unenforceable, the remaining terms and provisions of this
Agreement shall not be affected thereby and (i) such provision shall be reformed
to the minimum extent necessary to be valid while preserving the intent of the
parties as expressed herein, or (ii) if such provision cannot be so reformed,
such provision shall be severed from this Agreement and an equitable adjustment
shall be made to this Agreement (including, without limitation, addition of
necessary further provisions to this Agreement) so as to give effect to the
intent as so expressed and the benefits so provided. Neither such holding nor
such reformation nor severance shall affect or impair the legality or
enforceability of any other provision of this Agreement.
15. REVOCATION. You acknowledge and agree that by signing this
Agreement, you understand that you voluntarily waive the right to revoke this
Agreement during the seven (7) day period following the execution of the
Agreement.
16. MISCELLANEOUS. In the event that Viatel fails to pay any amounts
provided hereunder or either party otherwise breaches any provision of this
Agreement, either in whole or in part, the non-breaching party shall be entitled
to recover from the other party, in addition to the recovery of its damages
and/or other relief, any costs, including reasonable attorneys' fees, incurred
or reasonably expected to be incurred in instituting, prosecuting or defending
any action arising by reason of such failure or the breach of this Agreement.
17. TAX WITHHOLDING. Solely to the extent that any payment hereunder
is subject to withholding for federal, state or local income taxes or federal
employment taxes, Viatel agrees to withhold the minimum amount of withholding
taxes required by law. With respect to the shares of Restricted Stock which
become vested hereunder, Viatel shall reduce the amount of shares of Common
Stock otherwise deliverable to you to cover the minimum amount of withholding
taxes required by law. Viatel represents and warrants that, prior to the
Effective Date, it shall have obtained approval by Viatel's Board of Directors
or a compensation committee of such board which consists solely of at least two
(2) non-employee directors, of the reduction of such shares of Common Stock so
that it will be treated as an exempt "disposition to the issuer" under Rule
16b-3 promulgated under Section 16(b) of the Exchange Act.
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18. TAX INDEMNITY. Viatel shall select and retain a law firm or
accounting firm with a national reputation (which may be Viatel's current law
firm or auditors) to determine whether you have a reasonable reporting position
that the acceleration of stock options under your employment agreement, dated
May 3, 1999 with Destia Communications, Inc., (the "Payments") is not subject to
the excise tax imposed under Sections 280G and 4999 of the Internal Revenue Code
of 1986, as amended (the "Code"). The advice of such law firm or accounting firm
shall be provided to you in writing within thirty (30) days of the Effective
Date. Upon receipt of such written advice, you agree to take a consistent
position with such advice. Notwithstanding anything herein to the contrary, in
the event that all or any portion of the Payments will be or are found to be
subject to the tax imposed under Sections 280G and 4999 of the Code (the "Excise
Tax"), Viatel shall indemnify you up to $3 million for, and, if required, shall
pay, the Excise Tax plus all interest and penalties resulting from the payment
of or failure to pay the Excise Tax.
19. INDEMNIFICATION; D&O INSURANCE. Viatel hereby agrees to indemnify
you against any and all expenses (including attorney's fees and costs),
liabilities, costs, damages, judgments, fines and amounts paid in settlement,
actually and reasonably incurred by you, to the fullest extent now or hereafter
permitted by law, in connection with any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, brought or threatened to be brought against you by reason of your
performance as a director, officer, employee or agent of Viatel. The rights of
indemnification provided for herein shall be not be deemed exclusive of any
other rights to which you may be entitled under Viatel's By-laws or Certificate
of Incorporation, and shall inure to the benefit of your heirs, executors and
administrators. Any expenses (including reasonable attorney's fees and costs)
incurred by you in connection with an event for which indemnification is
provided hereunder shall be paid promptly by Viatel in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
you to repay such amount if it shall ultimately be determined that you are not
entitled to be indemnified by Viatel as authorized by law. Viatel will continue
to maintain Directors' and Officers' Liability Insurance (the "D&O Insurance")
for you until the sixth anniversary of the Effective Date in an amount no less
than the same amount currently provided to Viatel's directors and officers.
20. GOVERNING LAW AND CHOICE OF FORUM. PURSUANT TO TITLE 14 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, THE PARTIES HERETO AGREE THAT
(1) THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND
INTERPRETED, CONSTRUED, AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT FEDERAL LAW MAY GOVERN AND (2) THE
FORUM FOR ANY DISPUTE HEREUNDER SHALL BE IN ANY FEDERAL AND/OR STATE COURT
LOCATED IN NEW YORK COUNTY, AND THERE SHALL BE NO DEFENSE TO THE SELECTION OF
SUCH FORUM BASED ON JURISDICTION, VENUE OR CONVENIENCE. EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES ANY OBJECTION TO SUCH JURISDICTION OR INCONVENIENT FORUM.
PLEASE READ THIS AGREEMENT CAREFULLY. BY EXECUTING THIS AGREEMENT, YOU WILL HAVE
WAIVED ANY RIGHT YOU MAY HAVE TO BRING A LAWSUIT OR MAKE ANY LEGAL CLAIM, KNOWN
OR UNKNOWN, AGAINST VIATEL, ITS SUBSIDIARIES OR ANY OF ITS AFFILIATES BASED ON
ANY ACTIONS TAKEN BY VIATEL, ITS EMPLOYEES OR AGENTS ARISING FROM OR RELATED TO
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YOUR EMPLOYMENT WITH VIATEL OR DESTIA OR THE TERMINATION OF SUCH EMPLOYMENT, UP
TO THE DATE OF THE EXECUTION OF THIS AGREEMENT. WE RECOMMEND THAT YOU RETAIN
LEGAL COUNSEL TO ADVISE YOU WITH RESPECT TO THE TERMS OF THIS AGREEMENT AND THE
TERMINATION OF YOUR EMPLOYMENT WITH VIATEL.
[INTENTIONALLY LEFT BLANK]
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21. NOTICES. All notices, requests and demands to or upon the
respective parties must be in writing and may be served by personal delivery,
facsimile transmission or certified mail, return receipt requested. All such
notices, requests and demands shall be deemed to be made upon receipt:
To you: At the address set forth above, with a copy to Xxxxxx X.
Xxxxxxx, Esq., Proskauer Rose LLP, 0000 Xxxxxxxx, XX, XX 00000 and to Viatel at
000 Xxxxx Xxxxxx, 00xx Xxxxx, XX, XX 00000, Attention: General Counsel.
Your signature below signifies your voluntary acceptance of the terms
of this letter. Please sign and date both copies of this Agreement in the space
provided. One copy should be retained for your records.
Sincerely,
Viatel, Inc.
Agreed as of the date first
By:/s/ Xxxxxxx X. Xxxxxxx written above:
-----------------------
Xxxxxxx X. Xxxxxxx /s/ Xxxx Xxxx
Chief Executive Officer ---------------------------------
Xxxx Xxxx
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