EXHIBIT 10.18
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into this 1/st/
day of July, 1999, (the "Effective Date") by and between Xxxxx X. Xxxxxxxxxx
(the "Executive") and International Exchange Networks, Ltd., a Delaware
corporation (the "Company").
BACKGROUND
WHEREAS the Executive has and is expected to continue to make a major
contribution to the growth, profitability and financial strength of the Company;
and
WHEREAS the Company desires to retain the services of the Executive,
and the Executive desires to be retained by the Company, on the terms and
conditions set forth below.
NOW, THEREFORE, intending to be legally bound, and in consideration of
the premises and the mutual promises set forth in this Agreement and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and Executive agree as follows:
ARTICLE I -- DEFINITIONS
1.1 Definitions. The following terms, when used in this Agreement, shall
have the following meanings, unless the context clearly requires otherwise (such
definitions to be equally applicable to both the singular and plural of the
defined terms):
1.1.1 "Affiliate" means, (a) with respect to the Executive, any other
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Person directly or indirectly Controlling, Controlled by, or under common
Control with the Executive and (b) with respect to the Company, (i) any
Person which directly or indirectly beneficially owns (within the meaning
of Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as
amended) securities or other equity interests possessing more than 50% of
the aggregate voting power in the election of directors (or similar
governing body) represented by all outstanding securities of the Company or
(ii) any Person with respect to which the Company beneficially owns (within
the meaning of Rule 13d promulgated under the Securities Exchange Act of
1934, as amended) securities or other equity interests possessing more than
50% of the aggregate voting power in the election of directors (or similar
governing body) represented by, or more than 50% of the aggregate value of,
all outstanding securities or other equity interests of such Person.
1.1.2 "Base Salary" shall have the meaning set forth in section 3.1.
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1.1.3 "Board" means the Board of Directors of the Company.
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1.1.4 "Cause" means an omission, act or action or series of
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omissions, acts or actions of the Executive which, in the determination of
the Board, constitute(s), cause(s) or result(s) in:
1.1.4.1 the Executive's material dishonesty including, without
limitation, theft, fraud, embezzlement, financial
misrepresentation or other similar behavior or action in his
dealings with or with respect to the Company or any Affiliate
thereof or entity with which the Company or any Affiliate
thereof, shall be engaged in or be attempting to engage in
commerce;
1.1.4.2 the conviction of the Executive for, or the Executive's
entry of a plea of guilty or nolo contendere to, the commission
of a felony;
1.1.4.3 the willful refusal of the Executive to follow the
lawful directives of the Board or the President of the Company
with respect to his duties hereunder, which directives shall be
consistent with his duties and position as an officer of the
Company, as set forth in this Agreement, and which refusal is not
cured by the Executive within thirty (30) calendar days after
written notice from the Board of the Company to the Executive
setting forth with reasonable specificity the nature thereof; or
1.1.4.4 the material breach of any provision of this Agreement
which is not cured by the Executive within thirty (30) calendar
days after written notice from the Board or the President of the
Company to the Executive setting forth with reasonable
specificity the nature of such breach.
1.1.5 "Confidential Information" means:
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1.1.5.1 proprietary information, trade secrets and know-how of
the Company and its Affiliates;
1.1.5.2 confidential information relating to the business,
operations, systems, networks, services, data bases, customer
lists, pricing policies, business plans, marketing plans,
product development plans, strategies, inventions and research
of the Company or its Affiliates; and
1.1.5.3 confidential information relating to the financial
affairs and results of operations and forecasts or projections
of the Company or its Affiliates;
provided that information shall not constitute Confidential Information if
such information: (i) is generally known by Persons other than the Company
or its Affiliates or Persons employed by, in control of or otherwise
affiliated with the Company or its Affiliates, (ii) is known by Persons
other than the Company or its Affiliates or Persons employed by, in control
of or otherwise affiliated with the Company or its Affiliates by reason of
the action of such Person or Persons other than the Executive or any Person
acting at the Executive's direction or with the Executive's consent, (iii)
was known by the Executive, by lawful means, prior to the date of the
Executive's employment with the Company or (iv) is compelled to be
disclosed by law, regulation or legal process.
1.1.6 "Control" (including the terms "Controlled by" and "under
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common Control with") means the possession, directly or indirectly or as a
trustee or executor, of the power to direct or cause the direction of the
management of a Person, whether through the ownership of stock, as a
trustee or executor, by contract or credit agreement or otherwise.
1.1.7 "Disability" means any physical or mental condition which
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renders Executive incapable of performing his essential functions and
duties hereunder as determined in good faith by the Board.
1.1.8 "Effective Date" shall have the meaning set forth in the
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preamble.
1.1.9 "Employment Term" shall have the meaning set forth in
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section 2.2.
1.1.10 "Good Reason" means:
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1.1.10.1 the assignment to Executive, without Executive's
expressed written approval, of duties or responsibilities
materially inconsistent with the Executive's position of
Executive Vice President and Chief Financial Officer, or any
material reduction in Executive's duties, responsibilities or
authority from those in effect on the date hereof;
1.1.10.2 the Company's failure to continue in effect any
material benefit plan, program or policy in which Executive is
participating (other than any plan, program or policy which is
available to the salaried employees of the Company generally),
or the taking of any action by the Company that would
adversely affect Executive's participation in or materially
reduce Executive's benefits under any such benefit plan,
program or policy or that would deprive Executive of any
material fringe benefit enjoyed by Executive; provided,
however, that no Good Reason shall occur if the aggregate
value of the benefit plans, programs and policies in which the
Executive is participating remains substantially equivalent;
1.1.10.3 a relocation of the Executive's primary place of
employment to any location that is both (a) greater than 50
miles away from the location at which Executive is currently
working, and (b) greater than 50 miles away from the
Executor's primary residence, except for required travel by
Executive on the Company's business to an extent substantially
consistent with Executive's past business travel obligations;
which, in any case, is not cured by the Company within thirty (30) calendar days
after written notice from the Executive to the Board setting forth with
reasonable specificity the nature of such breach. For purposes of this
Agreement, any action or inaction shall constitute Good Reason only if written
notice thereof as contemplated by the preceding sentence is given within 60 days
after the date on which such action or inaction first occurs (or, if later, the
earliest date on which the Executor knows or reasonably should know of such
action or inaction).
1.1.11 "Initial Term" means the first period that this Agreement is
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in effect, as set forth in section 2.2.
1.1.12 "Person" means an individual, corporation, partnership,
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association, limited liability company or partnership, trust, government,
governmental agency or body, or any other group or entity, no matter how
organized and whether or not for profit.
1.1.13 "Renewal Term" shall have the meaning set forth in
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Section 2.2.
ARTICLE II -- EMPLOYMENT AND TERM
2.1 Employment. The Company employs Executive and the Executive hereby
agrees to such employment by the Company during the Employment Term to serve as
Executive Vice President and Chief Financial Officer of the Company, reporting
to the Chief Operating Officer of the Company, with the customary duties,
authorities and responsibilities of a chief financial officer of a
telecommunications corporation and such other duties, authorities and
responsibilities relative to the Company or its Affiliates that: (i) have been
agreed upon by the Company and Executive or (ii) may from time to time be
delegated to Executive by the Board.
2.2 Employment Term.
2.2.1 Initial Term. The "Initial Term" of this Agreement shall
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commence on the Effective Date, and unless sooner terminated as provided in
Article IV, shall continue until the fourth anniversary of such date.
2.2.2 Renewal Term. On the day after the Effective Date and on each
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day thereafter, the Employment Term shall be extended by one day, such that
on any date the Employment Term will expire on the fourth (4/th/)
anniversary of such date. These extensions shall continue in perpetuity
until discontinued by: (a) notice to the Executive given by the Company
that it has elected to discontinue the extensions; (b) notice by the
Executive to the Company that he has elected to discontinue the extensions;
or (c) termination of the Executive's employment with the Company, whether
by resignation, discharge or otherwise. On the date on which such a notice
is deemed given, or on the effective date of a termination of the
Executive's employment with the Company, the Employment Term shall be
converted to a fixed period of four (4) years ending on the fourth (4/th/)
anniversary of such date.
2.2.3 Employment Term. For all purposes of this Agreement, the term
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"Employment Term" shall mean the Initial Term and all Renewal Terms.
Except as otherwise expressly provided in this Agreement, any reference in
this Agreement to the term "Remaining Unexpired Employment Term" as of any
date shall mean the period beginning on such date and ending on the fourth
(4/th/) anniversary of the earliest of (a) the date in question, (b) any
earlier date on which the Executive or the Company is deemed to have given
a notice to discontinue extensions of the Employment Term, and (c) any
earlier date on which the Executive's employment with the Company was
terminated.
2.3 Full Working Time. During the Employment Term, the Executive shall
devote his ability and attention, all of his skill and experience and efforts
during normal business hours and at such other times as the performance of his
dutie s hereunder may reasonably require to the proper performance of his duties
hereunder and to the business and affairs of the Company. During the Employment
Term, the Executive, without the prior written approval of the Board, shall not,
either directly or indirectly, actively participate in any other business or
accept any employment or business office whatsoever, including, without
limitation, serving as a director, from any other Person; provided, however,
that the foregoing shall not preclude the Executive, subject to Article V, from:
(i) serving as a director of any non-profit or charitable organization or (ii)
making an investment in any other business, so long as in any such case, the
Executive does not actively participate in such other business or organization
and such activity does not interfere with the Executive's ability to perform his
duties hereunder and does not constitute a conflict of interest with the Company
in the reasonable opinion of the Board.
ARTICLE III -- COMPENSATION AND BENEFITS
3.1 Base Salary. During the Employment Term, as compensation for services
hereunder and in consideration for the protective covenants set forth in Article
V of this Agreement, Executive shall be paid an annual base salary of $200,000
or such greater amount as may from time to time be approved by the Compensation
Committee of the Board (the "Base Salary"); provided, however, that the Base
Salary may be decreased if there are decreases in salary imposed on all of the
Company's executive employees because the Company's financial performance
dictates such decreases. Base Salary shall be paid to Executive in accordance
with the Company's normal payroll practices.
3.2 Bonus. During the Employment Term, Executive shall be eligible to
receive an annual bonus that will be determined in accordance with the bonus
program established by the Board from time to time. The Executive's target
bonus shall be 50% of his Base Salary. The Board, in its discretion, may award
a higher bonus for any year for performance that exceeds target levels.
3.3 Stock Option. The Executive shall be granted an option to purchase
shares of the common stock of the Company pursuant to the IXnet, Inc. 1999 Stock
Option Plan (the "Stock Plan").
3.4 Benefits. To the maximum extent that he is eligible under the terms
of the applicable plan or program, the Executive shall participate in any and
all plans or programs maintained by the Company for its employees and/or senior
executives generally that provide insurance, medical benefits, retirement
benefits, or similar fringe benefits. In addition, the Executive shall be
entitled to 3 weeks of paid vacation each calendar year of the Employment Term,
which must be taken in accordance with the Company's vacation policy then in
effect. The Executive shall be eligible for reimbursement for the costs of
membership in social and/or business clubs and other executive perquisites on
terms and conditions no less favorable than those offered to any other Executive
President or more senior officer of the Company.
3.5 Indemnification and Insurance.
3.5.1 D&O Insurance. The Company shall cause the Executive to be
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covered by and named as an insured under any policy or contract of
insurance obtained by it to insure its directors and officers against
personal liability for acts or omissions in connection with service as an
officer or director of the Company or service in other capacities at its
request. The coverage provided to the Executive pursuant to this section
3.5.1 shall be of the same scope and on the same terms and conditions as
the coverage (if any) provided to other officers or directors of the
Company and shall continue for so long as the Executive shall be subject to
personal liability relating to such service.
3.5.2 Indemnification. To the maximum extent permitted under
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applicable law, the Company shall indemnify the Executive against and hold
him harmless from any costs, liabilities, losses and exposures to the
fullest extent and on the most favorable terms and conditions that similar
indemnification is offered to any director or officer of the Company or any
subsidiary or Affiliate thereof and shall continue for so long as the
Executive shall be subject to personal liability relating to such service.
3.6 Expenses. The Company shall pay or reimburse the Executive for
reasonable business expenses actually incurred or paid by the Executive during
the Employment Term, in the performance of his services hereunder; provided,
however, that such expenses are consistent with the Company policy. Such payment
or reimbursement is expressly conditioned upon presentation of expense
statements or vouchers or other supporting documentation by the Executive in a
manner that is acceptable to the Company and otherwise in accordance with the
Company policy then in effect.
3.7 Deductions. The Company shall deduct from all compensation or
benefits payable pursuant to this Agreement such payroll, withholding and other
taxes as may in the reasonable opinion of the Company be required by law and any
such additional amounts requested in writing by the Executive.
ARTICLE IV -- TERMINATION
4.1 General. The Company shall have the right to terminate the employment
of the Executive at any time with or without Cause.
4.2 Termination Under Certain Circumstances.
4.2.1 Termination Without Severance Benefits. In the event the
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Executive's employment with the Company is terminated prior to the
expiration of the Employment Term by reason of (i) the Executive's
resignation without Good Reason, (ii) the Executive's death or (iii) the
Executive's discharge by the Company for Cause, this Agreement shall
terminate including, without limitation, the Company's obligations to
provide any compensation, benefits or severance to the Executive under
Article IV of this Agreement or otherwise, other than the Standard
Termination Entitlements (as defined in section 4.4.1).
4.2.2 Disability. The Company may terminate the Executive's
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employment upon the Executive's Disability. In such event, in addition to
the Standard Termination Entitlements (as defined in section 4.4.1), the
Company shall continue to pay the Executive his Base Salary in accordance
with the Company's normal payroll practices, at the annual rate in effect
for him immediately prior to the termination of his employment, during a
period ending on the earliest of: (a) the date on which long-term
disability insurance benefits are first payable to him under any long-term
disability insurance plan covering employees of the Company; and (b) the
date of his death; and (c) the expiration of the Remaining Unexpired
Employment Term. A termination of employment due to Disability under this
Section 4.2.2 shall be effected by notice of termination given to the
Executive by the Company and shall take effect on the later of the
effective date of termination specified in such notice or the date on which
the notice of termination is deemed given to the Executive.
4.2.3 Termination with Severance Benefits. In the event that the
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Executive's employment with the Company is terminated by the Executive
prior to the expiration of the Employment Term for Good Reason or by the
Company prior to the expiration of the Employment Term other than for Cause
or Disability, the Company shall pay the Standard Termination Entitlements
(as defined in section 4.4.1) and the Severance Benefits (as defined in
section 4.4.2); provided, however, that any payment required by this
section 4.2.2 is expressly conditioned upon:
4.2.3.1 The Executive's compliance with the terms of this
Agreement, including, without limitation, Article V;
4.2.3.2 The Executive's execution of a release and waiver of
all claims and potential claims against the Company, its
Affiliates and other related parties in a form satisfactory to
the Company and that is substantially similar to the attached
form; and
4.2.3.3 The Executive's resignation from any and all
positions which he holds as an officer, director or committee
member with respect to the Company or any Affiliate thereof.
4.3 Liquidated Damages. The Company and Executive hereby stipulate that
the damages which may be incurred by the Executive as a consequence of any such
termination of employment are not capable of accurate measurement as of the date
first above written and that the liquidated damages payments provided for in
this Agreement constitute a reasonable estimate under the circumstances of, and
are in full satisfaction of, all damages sustained as a consequence of any such
termination of employment.
4.4 Standard Termination Entitlements; Severance Benefits.
4.4.1 Standard Termination Entitlements. For all purposes of this
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Agreement, the Executive's "Standard Termination Entitlements" shall mean
and include:
(a) the Executive's earned but unpaid compensation (including,
without limitation, salary and all other items which constitute wages under
applicable law) as of the date of his termination of employment. This
payment shall be made at the time and in the manner prescribed by law
applicable to the payment of wages but in no event later than 30 days after
the date of the Executive's termination of employment.
(b) the benefits, if any, due to the Executive, and the
Executive's estate, surviving dependents or his designated beneficiaries
under the employee benefit plans and programs and compensation plans and
programs (including stock option plans) maintained for the benefit of the
officers and employees of the Company). The time and manner of payment or
other delivery of these benefits and the recipients of such benefits shall
be determined according to the terms and conditions of the applicable plans
and programs.
4.4.2 Severance Benefits. For all purposes of this Agreement, the
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Executive's "Severance Benefits" shall mean and include:
(a) the payment of (i) the Executive's Base Salary at the annual
rate of Base Salary in effect immediately prior to his termination of
employment (without giving effect to any reduction in Base Salary not
expressly authorized by this Agreement) for a period of twelve (12) months
from the date of the Executive's termination of employment payable in
accordance with the Company's normal payroll practices, plus (ii) the
annual bonus (if any) earned by the Executive for the fiscal year (computed
as though the Executive had remained employed through the end of such
fiscal year) multiplied by a fraction, the number of which is the number of
calendar months in the current fiscal year to begin before the Executive's
termination of employment and the denominator of which is twelve (12),
payable at the time and in the manner specified in the applicable bonus
plan. The payments described in this section 4.4.2 (a) shall not commence
until the release referred to in section 4.3.2.2. becomes irrevocable.
(b) a lump sum payment equal to any unpaid bonuses or other
compensation earned for periods completed prior to the Executive's
termination of employment, the payment of which is contingent on the
Executive's continued employment through a date that is after the date of
his termination of employment. This payment shall be made at the time and
in the manner prescribed by law, but in any event within five (5) business
days after the Executive's termination of employment.
(c) for a period of one year after termination of employment,
direct payment by the Company to the carrier of the premiums due for
any health insurance continuation coverage elected by the Executive
under the Company group health plans pursuant to the Consolidated
Budget Reconciliation of 1985.
ARTICLE V -- RESTRICTIVE COVENANTS
5.1 Proprietary Information.
5.1.1 Disclosure during the Term. The Executive shall promptly
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disclose to the Company in such form and manner as the Company may
reasonably require (a) all operations, systems, services, methods,
developments, inventions, improvements and other information or data
pertaining to the business or activities of the Company and its Affiliates
as are conceived, originated, discovered or developed by Executive (whether
or not copyrighted or patented or capable of being copyrighted or patented)
during the Employment Term (whether before or after the date hereof), and
(b) such information and data pertaining to the business, operations,
personnel, activities, financial affairs, and other information relating to
the Company and its Affiliates and their respective customers, suppliers,
employees and other persons having business dealings with the Company and
its Affiliates as may be reasonably required for the Company to operate its
business. It is understood that such information is proprietary in nature
and shall (as between the Company and Executive) be for the exclusive use
and benefit of the Company and shall be and remain the property of the
Company both during the Employment Term and thereafter. If so requested by
the Company, the Executive shall execute and deliver to the Company any
instrument as the Company may reasonably request to effectuate the
assignment of any such proprietary information to the Company. Without
limiting the generality of the foregoing, the Executive hereby releases and
waives and assigns to the Company any and all claims and rights which he
has against the Company or any Affiliate thereof or any of the technology,
"know-how," licenses or other proprietary rights or processes of the
Company or any Affiliate thereof.
5.1.2 Disclosure after the Term. In the event that the Executive
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leaves the employ of the Company for any reason, including, without
limitation, the expiration of the Employment Term, the Executive shall
deliver to the Company (and shall not keep in his possession, recreate or
deliver to anyone other than the Company or its designee) any and all
devices, records, data, notes, reports, proposals, lists, correspondence,
specifications, drawings, blueprints, sketches, materials, equipment, other
documents or property, together with all copies thereof (in whatever medium
recorded) belonging to the Company or any Affiliate thereof or any of their
respective successors or assigns.
5.2 Non-Competition. During the Employment Term and any extensions
thereof, and, only if the Executive's employment hereunder is terminated due to
the Company's discharge of the Executive for Cause, or the Executive's voluntary
resignation from his employment hereunder without Good Reason, for two years
thereafter, the Executive agrees, and shall cause each Person
Controlled by him to agree, that any such Person shall not, directly or
indirectly, through any Person Controlled by the Executive, in any form or
manner on a worldwide basis: (a) engage in any activities competitive with the
business of the Company and its Affiliates for his or their own account or for
the account of any other Person, or (b) become interested in any Person engaged
in activities competitive with the business of the Company and its Affiliates as
a partner, shareholder, member, principal, agent, employee, trustee, consultant
or in any other relationship or capacity; provided, however, that Executive may
own, directly or indirectly, solely as a passive investment, securities of any
Person if the Executive (x) is not a Person in Control of, or a member of a
group that Controls, such Person and (y) does not, directly or indirectly, own
5% or more of any voting class of securities of such Person.
5.3 Non-Solicitation. During the Employment Term, any extensions thereof
and for a period of two years thereafter, the Executive will not, directly or
indirectly, use proprietary knowledge or information relating to the Company or
its Affiliates obtained during the course of Executive's employment with the
Company with the intention to, or which a reasonable person would construe to
(a) interfere with or disrupt any present or prospective relationship,
contractual or otherwise, between the Company or its Affiliates and any
customer, supplier, employee, consultant or other person having business
dealings with the Company or its Affiliates, or (b) employ or solicit the
employment or engagement by others of any employee or consultant of the Company
or its Affiliates who was such an employee or consultant at the time of
termination of the Executive's employment hereunder or within one year prior
thereto.
5.4 Non-Disclosure. Except with the prior written consent of the Company
in each instance or as may be reasonably necessary to perform the Executive's
services hereunder, the Executive shall not disclose, use, publish, or in any
other manner reveal, directly or indirectly, at any time during or after the
Employment Term, any Confidential Information relating to the Company or any
Affiliate thereof acquired by him prior to, during the course of, or incident
to, his employment hereunder. In the event Executive is required (by oral
questions, interrogatories, requests for information or documents in legal
proceedings, subpoenas, civil investigative demand or similar process) to
disclose any such Confidential Information, the Executive shall provide the
Company with prompt written notice of such requirement so that the Company may
seek a protective order or other appropriate remedy and/or waive compliance with
the provisions of this Section. If, in the absence of such a protective order or
other remedy or receipt of a waiver by the Company, the Executive is nonetheless
advised by his legal counsel that he is legally compelled to disclose such
Confidential Information, the Executive may, without liability hereunder,
disclose only that portion of such Confidential Information which such counsel
advises in writing is legally required to be disclosed.
5.5 Reasonable Limitations. Executive acknowledges that given the nature
of the Company's business the covenants contained in this Article V contain
reasonable limitations as to time, geographical area and scope of activity to be
restrained, and do not impose a greater restraint than is necessary to protect
and preserve the Company's business and to protect the Company's legitimate
business interests. If, however, this Article V is determined by any court of
competent jurisdiction or any arbitrator to be unenforceable by reason of its
extending for too long a period of time or over too large a geographic area or
by reason of its being too extensive in any other respect, or for any other
reason, it will be interpreted to extend only over the longest period of time
for which
it may be enforceable and/or over the largest geographical area as to which it
may be enforceable and/or to the maximum extent in all other aspects as to which
it may be enforceable, all as determined by such court or arbitrator in such
action.
5.6 Remedies for Breach. Executive acknowledges that the legal remedies
for breach of the protective covenants hereunder are inadequate and therefore
agrees that, in addition to all of the remedies available to the Company in the
event of a breach or a threatened breach of any covenant contained in this
Article V, the Company may: (i) obtain temporary, preliminary, and permanent
injunctions and any other appropriate equitable relief against any and all such
actions, (ii) cease as of the date of such breach or threatened breach any and
all further payments to Executive pursuant to this Agreement and (iii) recover
from Executive monetary damages to the Company or any Affiliate arising from
such breach or threatened breach and all costs and expenses (including
reasonable attorneys' fees) incurred by the Company or any Affiliate in the
enforcement of such protective covenants.
5.7 Extension of Limitation Period. The parties acknowledge that if
Executive violates any of the protective covenants in this Article V and the
Company brings legal action for injunctive, damages or other relief hereunder,
the Company shall, as a result of the time involved in obtaining the relief, be
deprived of the full benefit of these protective covenants. Accordingly, the
applicable limitation period shall be deemed to have the full duration of the
period stated therein, computed from the date relief is granted, but reduced by
the time between the period when the restriction began to run and the date of
the first violation of the covenant by Executive.
5.8 Affiliates of the Company. The provisions of this Article V shall
benefit the business and proprietary rights of the Company's Affiliates and
shall be enforceable against Executive by each of such Affiliates as third party
beneficiaries.
5.9 Survival of Protective Covenants. Each covenant on the part of
Executive contained in this Article V shall be construed as an agreement
independent of any other provision of this Agreement, unless otherwise indicated
herein, and shall survive the termination of Executive's Employment under this
Agreement, and the existence of any claim or cause of action of Executive
against the Company, whether predicated on this Agreement or otherwise, shall
not constitute a defense to the enforcement by the Company of such covenant.
ARTICLE VI DISPUTE RESOLUTION
6.1 Arbitration. Any dispute, controversy or claim, at any time arising
from or relating to this Agreement, or the breach, termination or invalidity
thereof (other than any dispute, controversy or claim made by the Company
pursuant to Article V, which may, at the option of the Company, be submitted to
any court of competent jurisdiction) shall be referred to final and binding
arbitration by a panel of three arbitrators selected according to the National
Rules for the Resolution of Employment Disputes of the American Arbitration
Association (but not held under its auspices). In the event the arbitrator
selected by the Executive and the arbitrator selected by the Company cannot,
within thirty (30) days after the appointment of both, agree on a third
arbitrator, he or she shall be selected by a United States District Court Judge
sitting in the United States District Court
for the Southern District of New York. The place of arbitration shall be New
York, NY. Any arbitral award may be entered as a judgment in any court of
competent jurisdiction.
ARTICLE VII -- GENERAL PROVISIONS
7.1 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telegram, telex
or telecopy, or by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any courier service, providing proof of delivery. All
communications hereunder shall be delivered to the respective parties at the
following addresses:
If to the Executive: Xxxxx X. Xxxxxxxxxx
If to the Company: International Exchange Networks, Ltd.
c/o IPC Information Systems, Inc.
Wall Xxxxxx Xxxxx
00 Xxxx Xxxxxx - 15th Floor
Xxx Xxxx, XX 00000
Attn: Chairman of the Board
Fax No.: (000) 000-0000
with copy to: Xxxxxxx Xxxxxxxx & Wood
Two World Trade Center, 39/th/ Floor
New York, NY 1048
Attn: Xxxxxx X. Xxxxxx
Fax No.: (000) 000-0000
or to such other address as the party to whom notice is given may have
previously furnished to the other parties hereto in writing in the manner set
forth above.
7.2 Entire Agreement. This Agreement shall constitute the entire agreement
between the Executive and the Company with respect to the Company's employment
of the Executive and supersedes any and all prior agreements and understandings,
written or oral, with respect thereto.
7.3 Amendments and Waivers. Any term of this Agreement may be amended and
the observance of any term of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively), only by (a)
an instrument in writing and signed by the party against whom such amendment or
waiver is sought to be enforced, and (b) in the case of the Company, such
amendment or waiver also must be duly authorized by an appropriate resolution of
the Board.
7.4 Successors and Assigns. The Company shall have the right to assign
this Agreement. The personal services of the Executive are the subject of this
Agreement and no part of his rights or obligations hereunder may be assigned,
transferred, pledged or encumbered by the Executive. This
Agreement shall inure to the benefit of, and be binding upon (a) the parties
hereto, (b) the heirs, administrators, executors and personal representatives of
the Executive and (c) the successors and assigns of the Company as provided
herein.
7.5 Governing Law. This Agreement, including the validity hereof and the
rights and obligations of the parties hereunder, and all amendments and
supplements hereof and all waivers and consents hereunder, shall be construed in
accordance with and governed by the laws of the State of New York without giving
effect to any conflicts of law provisions or rule, that would cause the
application of the laws of any other jurisdiction.
7.6 Severability. If any provisions of this Agreement as applied to any
part or to any circumstance shall be adjudged by a court to be invalid or
unenforceable, the same shall in no way affect any other provision of this
Agreement, the application of such provision in any other circumstances or the
validity or enforceability of this Agreement.
7.7 No Conflicts. The Executive represents to the Company that the
execution, delivery and performance by the Executive of this Agreement does not
and will not conflict with or result in a violation or breach of, or constitute
(with or without notice or lapse of time or both) a default under any contract,
agreement or understanding, whether oral or written, to which the Executive is
or was a party or of which the Executive is or should be aware.
7.8 Survival. The rights and obligations of the Company and Executive
pursuant to Articles IV, V and VI shall survive the termination of the
Executive's employment with the Company and the expiration of the Employment
Term.
7.9 Captions. The headings and captions used in this Agreement are used
for convenience only and are not to be considered in construing or interpreting
this Agreement.
7.10 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
7.11 Non-duplication. In the event that the Executive shall perform
services for any Affiliate of the Company or any other direct or indirect
subsidiary or affiliate of the Company or any Affiliate, any compensation or
benefits provided to the Executive by such other employer shall be applied to
offset the obligations of the Company hereunder, it being intended that this
Agreement set forth the aggregate compensation and benefits payable to the
Executive for all services to the Company, its Affiliates and all of their
respective direct or indirect subsidiaries and affiliates.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
/s/ Xxxxx X. Xxxxxxxxxx
--------------------------
Xxxxx X. Xxxxxxxxxx
IXnet, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President and
Chief Operating Officer
