EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as of
April 25, 1997 by and between WorldPort Communications, Inc. a Delaware
Corporation ("WorldPort" or the "Company"), and Mr. Xxxxx Xxxxxx (hereinafter
referred to as the "Executive"), and shall be effective upon the date of Closing
of the asset purchase agreement betweeen WorldPort and Telenational
Communications, Ltd. (the "Closing").
W I T N E S S E T H:
WHEREAS, the Company desires to have the benefit of the Executive's
efforts and services;
WHEREAS, the Executive is willing to commit himself to serve the Company,
on the terms and conditions herein provided; and
WHEREAS, in order to effect the foregoing, the Company and the Executive
wish to enter into an employment agreement on the terms and conditions set forth
below.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, the parties hereto mutually
covenant and agree as follows:
1 . DEFINITIONS.
Whenever used in this Agreement, the following terms shall have the
meanings set forth below:
(a) "Accrued Benefits" shall mean the amount payable not later than
ten (10) days following an applicable Termination Date, which shall be
equal to the sum of the following amounts:
(i) All salary earned or accrued through the Termination Date;
(ii) Reimbursement for any and all monies advanced in connection
with the Executive's employment for reasonable and necessary expenses
incurred by the Executive through the Termination Date;
(iii) Any and all other cash benefits previously earned through
the Termination Date and deferred at the election of the Executive or
pursuant to any deferred compensation plans then in effect;
(iv) All other payments and benefits to which the Executive may
be entitled under the terms of any benefit plan of the Company or
otherwise, including, but not limited to, any bonus declared by the
Board, any compensation for earned, but unused, vacation days, and any
unpaid automobile allowance.
(b) "Affiliate" shall have the same meaning as given to that term in
Rule 12b-2 of Regulation 12B promulgated under the Securities Exchange Act
of 1934, as amended.
(c) "Board" shall mean the Board of Directors of the Company
(d) "Disability" shall mean a physical or mental condition whereby the
Executive is unable to perform on a full-time, continuous basis the
customary duties of the Executive under this Agreement.
(e) "Notice of Termination" shall mean the notice described in Section
9 hereof;
(f) "Termination Date" shall mean, except as otherwise provided in
Section 8 hereof,
(i) The Executive's date of death;
(ii) Thirty (30) days after the delivery of the Notice of
Termination terminating the Executive's employment on account of
Disability pursuant to Subsection 8(b) hereof, unless the Executive
returns on a full-time basis to the performance of Executive's duties
prior to the expiration of such period;
(iii) Thirty (30) days after the delivery of the Notice of
Termination if the Executive's employment is terminated by the
Executive voluntarily; and
(iv) Fifteen (15) days after the delivery of the Notice of
Termination if the Executive's employment is terminated by the Company
for any reason other than death or Disability.
2 . EMPLOYMENT.
The Company hereby agrees to employ the Executive and the Executive hereby
agrees to serve the Company, on the terms and conditions set forth herein.
3 . TERM.
The Company's employment of the Executive under the provisions of this
Agreement shall commence upon the Closing and end on the second anniversary of
the Closing, unless further extended or April of each year thereafter, the term
of the Executive's employment shall, unless sooner terminated as hereinafter
provided, be automatically extended for an additional one year period from the
date thereof unless, at least thirty (30) days before such date, the Company
shall have delivered to the Executive or the Executive shall have delivered to
the Company written notice that the term of the Executive's employment hereunder
will not be extended beyond its existing duration.
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4 . POSITIONS AND DUTIES.
The Executive shall serve as Executive Vice President and Chief Operating
Officer of WorldPort Communications, Inc. and the TNC business unit of
WorldPort, which may at the Company's discretion be operated as a wholly-owned
subsidiary of WorldPort, and in such additional capacities as may be reasonably
assigned to the Executive by the Board. In his capacity as Chief Operating
Officer of the Company's TNC operationing unit, the Executive shall have such
duties, responsibilities and authority as are usual and customary for executives
who hold the same or a substantially similar position with companies of
comparable size in the same industry as the Company. In connection with any
capacities, the Executive shall have such duties, responsibilities and authority
as may from time to time be reasonably assigned to the Executive by the Board.
The Executive shall devote substantially all the Executive's working time and
efforts to the business and affairs of the Company.
5 . PLACE OF PERFORMANCE.
In connection with the Executive's employment by the Company, the
Executive shall be based at the Company's facilities in Omaha, Nebraska except
for required travel on Company business, and expect as otherwise agreed-to
between the Executive and the Company.
6 . COMPENSATION AND RELATED MATTERS.
(a) Commencing on the date hereof, and during Executive's employment,
the Company shall pay to the Executive an annual salary of $144,000 per
annum payable in equal installments consistent with the Company's overall
payroll periods and distributions. Within 90 days from the date hereof, the
Board shall conduct a performance review of the Executive, after which the
Board, in its sole discretion, may increase the annual salary of the
Executive based upon such performance review. In addition to any increases
in salary specified in this Agreement, the Executive's salary may be
increased from time to time in accordance with normal business practices of
the Company at the full discretion of the Board.
(b) During the Executive's employment, the Executive shall receive all
bonuses if, when and as declared by the Board, including, but not limited
to, a performance bonus of up to 50% of the Executive's annual salary,
payable semi-annually beginning six months from the effective date of the
Executive's employment, based upon the successful completion of performance
criteria to be established by the CEO of the Company in conjunction with
the Board of Directors. During the first year of employment the Executive's
performance will be determined according to the criteria detailed in the
Letter Agreement between WorldPort and the Executive dated June 6, 1997
(attached herein as Exhibit A). After the first year of this agreement the
Executive's bonuses will be paid based upon performance objectives and
related compensation amounts as determined by the CEO and the Board.
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(c) During the Executive's employment hereunder, the Executive shall
be entitled to receive prompt reimbursement for all reasonable expenses
incurred by the Executive in performing services hereunder, including all
business, travel, and living expenses while away from home on business or
at the request of and in the service of the Company, provided that such
expenses are incurred and accounted for in accordance with the Company's
policies and procedures.
(d) The Executive shall be entitled to the number of vacation days in
each calendar year, and to compensation for earned but unused vacation
days, determined in accordance with the Company's vacation plan or policy.
The Executive shall also be entitled to all paid holidays provided by the
Company to its other executives.
(e) The Executive shall receive a car allowance of $400 per month,
with any annual increase to be determined by the Board, payable in
accordance with the Company's policies and proceedures
(f) The Executive shall be entitled to such other benefits, including,
but not limited to, medical insurance, life insurance, and disability
insurance determined in accordance with the Company's benefit plan or
policy.
(g) The Executive shall be granted non-qualified stock options to
purchase 250,000 shares of the Company's common stock at an exercise price
of $1.25 per share, to be issued in accordance with the Company's Long-Term
Incentive Stock Plan according to the following vesting schedule:
83,334 options vested on the effective date of this Agreement, 83,333
options vested after one year of service, 83,333 options vested after
two years of service.
7 . OFFICES.
The Executive agrees to serve without additional compensation, if elected
or appointed thereto, as a member of the board of directors of any subsidiary of
the Company; provided, however, that the Executive is indemnified for serving in
any and all such capacities to the fullest extent provided by applicable law.
8 . TERMINATION
(a) As a result of death: If the Executive shall die during the term
of this Agreement, the Executive's employment shall terminate on the
Executive's date of death, and the Executive's surviving spouse, or the
Executive's estate if the Executive dies without a surviving spouse, shall
be entitled to the Executive's Accrued Benefits as of the Termination Date.
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(b) As a result of Disability: If, as a result of the Executive's
Disability, the Executive shall have been unable to perform the Executive's
duties hereunder on a full-time, continuous basis for two (2) consecutive
months or for an aggregate of three (3) months within any twelve (12) month
period and if within thirty (30) days after the Company provides the
Executive with a Termination Notice, the Executive shall not have returned
to the performance of the Executive's duties on a full-time basis, the
Company may terminate the Executive's employment, subject to Section 9
hereof. During the term of the Executive's Disability prior to termination,
the Executive shall continue to receive all salary and benefits payable
under Section 6 hereof, including participation in all employee benefit
plans, programs, and arrangements in which the Executive was entitled to
participate immediately prior to the Disability; provided, however, that
the Executive's continued participation is permitted under the terms and
provisions of such plans, programs, and arrangements. In the event that the
Executive's participation in any such plan, program, or arrangement is
barred as the result of such Disability, the Executive shall be entitled to
receive an amount equal to the contributions, payments, credits, or
allocations which would have been paid by the Company to the Executive, to
the Executive's account, or on the Executive's behalf under any such plan,
program, or arrangement. In the event the Executive's employment is
terminated on account of the Executive's Disability in accordance with this
Section 8, the Executive shall receive the Executive's Accrued Benefits as
of the Termination Date and shall remain eligible for all benefits provided
by any long-term disability program of the Company in effect at the time of
such termination. The payment of the Accrued Benefits by the Company to the
Executive shall be in addition to, and not in lieu of, any benefits payable
by reason of the Executive's Disability to the extent provided under any
long-term disability program of the Company in effect at the time of the
Executive's termination, or under any disability insurance policy, or
otherwise.
(c) Termination Without Cause: Either party to this Agreement may
terminate the Executive's employment hereunder without cause at any time
upon notice to the other party, and upon any such termination, the
Executive shall be entitled to receive his Accrued Benefits. In the event
that the Company terminates the Executive's employment pursuant to this
Subsection 8(c), the Executive shall receive from the Company on the
Termination Date a lump-sum cash payment (the "Severance Payment"), as
severance, in an amount equal to seventy-five percent (75%) of the greater
of (i) the Executive's annual salary at the time of such termination, or
(ii) the Executive's annual salary, as set forth in Subsection 6(a) hereof.
(d) Termination as a result of cause. The Company may terminate the
Executive for cause, upon the occurrence of any one or more of the
following acts or omissions:
(i) The determination in a binding and final judgment, order,
or decree by a court or administrative agency of competent
jurisdiction, that the Executive has engaged in fraudulent conduct,
and the determination by the Board, in its sole discretion, that
such fraudulent conduct has a significant adverse impact on the
Company;
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(ii) The conviction of the Executive on a felony or
misdemeanor involving moral turpitude (as evidenced by a binding and
final judgment, order, or decree of a court of competent
jurisdiction) an the determination by the Board, in its sole
discretion, that such conviction has a significant adverse impact on
the Company;
(iii) The refusal by the Executive to perform the Executive's
duties or responsibilities (unless significantly changed without the
Executive's consent) and after notice from the Company to the
Executive, the Executive's continuing refusal to perform his duties
or responsibilities during the 48-hour period following the giving
of such notice;
(iv) The performance by the Executive of his duties or
responsibilities in a manner constituting gross negligence (unless
such duties or responsibilities have been significantly changed
without the Executive's consent).
(v) In the event of termination for cause, as set forth above,
the Executive will be entitled to receive his Accrued Benefits, but
will not be entitled to the Severance Payment, except as otherwise
provided by Texas law.
9 . TERMINATION NOTICE.
Any termination by the Company or the Executive of the Executive's
employment hereunder shall be communicated by written Notice of Termination to
the Executive, if such Notice of Termination is delivered by the Company, and to
the Company, if such Notice of Termination is delivered by the Executive. The
Notice of Termination shall indicate the specific termination provision in this
Agreement relied upon and shall set forth the Termination Date.
10 . NONDISCLOSURE OF PROPRIETARY INFORMATION.
Recognizing that the Company is presently engaged, and may hereafter
continue to be engaged, in the research and development of processes, the
manufacturing of products, or the performance of services, which involve
experimental and inventive work and that the success of its business depends
upon the protection of such processes, products, and services by patent,
copyright, or secrecy and that the Executive has had, or during the course of
Executive's engagement as an employee or consultant may have, access to
Proprietary Information, as hereinafter defined, of the Company and that the
Executive has furnished, or during the course of the Executive's engagement may
furnish, Proprietary Information to the Company, the Executive agrees that:
(a) "Proprietary Information" shall mean any and all methods,
inventions, improvements or discoveries, whether or not patentable or
copyrightable, and any other information of a secret, proprietary,
confidential, or generally undisclosed nature relating to the Company, its
products, customers, processes, and services, including information
relating to testing research, development, manufacturing, marketing, and
selling, disclosed to the Executive or otherwise made known to the
Executive as a consequence of or through the Executive's
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engagement by the Company (including information originated by the
Executive) in any technological area previously developed by the Company or
developed, engaged in, or researched, by the Company during the term of the
Executive's engagement, including, but not limited to, trade secrets,
processes, products, formulae, apparatus, techniques, know-how, marketing
plans, data, improvements, strategies, forecasts, customer lists, and
technical requirements of customers, unless such information is in the
public domain to such an extent as to be readily available to the Company's
competitors.
(b) The Executive acknowledges that the Company has exclusive property
rights to all Proprietary Information, and the Executive hereby assigns all
rights that the Executive might otherwise possess in any Proprietary
Information to the Company. Except as required in the performance of the
Executive's duties to the Company, the Executive will not at any time
during or after the term of the Executive's engagement, which term shall
include any time in which the Executive may be retained by the Company as a
consultant, directly or indirectly use, communicate, disclose, or
disseminate any Proprietary Information.
(c) All documents, records, notebooks, notes, memoranda, and similar
repositories of, or containing, Proprietary Information made or compiled by
the Executive at any time or made available to the Executive prior to or
during the term of Executive's engagement by the Company, including any and
all copies thereof, shall be the property of the Company, shall be held by
the Executive in trust solely for the benefit of the Company, and shall be
delivered to the Company by the Executive on the termination of the
Executive's engagement or at any other time on the request of the Company.
(d) The Executive will not assert any rights under any inventions,
copyrights, discoveries, concepts, or ideas, or improvements thereof, or
know-how related thereto, as having been made or acquired by the Executive
prior to the Executive's being engaged by the Company or during the term of
the Executive's engagement if based on or otherwise related to Proprietary
Information.
11 . ASSIGNMENT OF INVENTIONS.
(a) For purposes of this Section 11, the term "Inventions" shall mean
discoveries, concepts, and ideas, whether patentable or copyrightable or
not, including, but not limited to, improvements, know-how, data,
processes, methods, formulae, and techniques, as well as improvements
thereof, or know-how related thereto, concerning any past, present, or
prospective activities of the Company, which the Executive makes,
discovers, or conceives (whether or not during the hours of the Executive's
engagement or with the use of the Company's facilities, materials, or
personnel), either solely or jointly with others during the Executive's
engagement by the Company or any Affiliate of the Company and, if based on
or related to Proprietary Information, at any time after termination of
such engagement. All Inventions shall be the sole property of the Company,
and the Executive agrees to perform the provisions of this Section 11 with
respect thereto without the payment by the Company of any royalty or any
consideration therefor, other than the regular compensation paid to the
Executive in his capacity of as an employee or consultant.
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(b) The Executive shall maintain written notebooks in which the
Executive shall set forth, on a current basis, information as to the
Inventions, describing in detail the procedures employed and the results
achieved, as well as information as to any studies or research projects
undertaken on the Company's behalf. The written notebooks shall at all
times be the property of the Company and shall be surrendered to the
Company upon termination of the Executive's engagement or, upon request of
the Company, at any time prior thereto.
(c) The Executive shall apply, at the Company's request and expense,
for United States and foreign letters patent or copyrights, either in the
Executive's name or otherwise as the Company shall desire.
(d) The Executive hereby assigns to the Company all of the Executive's
rights to the Inventions and to applications for United States and/or
foreign letters patent or copyrigh ts and to United States and/or foreign
letters patent or copyrights granted in respect of the Inventions.
(e) The Executive shall acknowledge and deliver promptly to the
Company, without charge to the Company, but at its expense, such written
instruments (including applications and assignments) and do such other
acts, such as giving testimony in support of the Executive's inventorship,
as may be necessary in the opinion of the Company to obtain, maintain,
extend, reissue, and enforce United States and/or foreign letters patent
and copyrights relating to the Inventions and to vest the entire right and
title thereto in the Company or its nominee. The Executive acknowledges and
agrees that any copyright developed or conceived of by the Executive during
the term of the Executive's employment which is related to the business of
the Company shall be a "work for hire" under the copyright law of the
United States and other applicable jurisdictions.
(f) The Executive represents that the Executive's performance of all
of the terms of this Agreement and as an employee of or consultant to the
Company does not and will not breach any trust existing prior to the
Executive's employment by the Company. The Executive agrees not to enter
into any agreement, either written or oral, in conflict herewith and
represents and agrees that the Executive has not brought and will not bring
with the Executive to the Company or use in the performance of the
Executive's responsibilities at the Company any materials or documents of a
former employer which are not generally available to the public, unless the
Executive has obtained written authorization from the former employer for
their possession and use, and the Executive has provided a copy of such
written authorization to the Company.
(g) No provision of this Section 11 shall be deemed to limit the
restrictions applicable to the Executive under Section 10 hereof.
12 . SHOP RIGHTS.
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The Company shall also have the royalty-free right to use in its business,
and to make, use, and sell products, processes, and/or services derived from any
inventions, discoveries, concepts, and ideas, whether or not patentable,
including, but not limited to, processes, methods, formulas, and techniques, as
well as improvements thereof or know-how related thereto, concerning any past,
present, or prospective activities of the Company, which are not within the
scope of Inventions as defined in Section 11 hereof, but which are conceived or
made by the Executive during the period that the Executive is engaged by the
Company with the use or assistance of the Company's facilities, materials, or
personnel.
13 . NON-COMPETE.
The Executive hereby agrees that during the Executive's employment under
this Agreement, and for a period of nine months from the termination thereof,
the Executive will not, without the written consent of the Company:
(a) Within any jurisdiction or marketing area in which the Company or
any subsidiary thereof is doing business, own, manage, operate, or control
any Business, provided, however, that for purposes of this Subsection
13(a), ownership of securities of not in excess of five percent (5%) of any
class of securities of a public company shall not be considered as owning,
managing, operating, or controlling any Business except as specifically
decribed below in this paragraph 13; or
(b) Within any jurisdiction or marketing area in which the Company or
any subsidiary thereof is doing business, act as, or become employed as, an
officer, director, employee, consultant or agent of any Business; or
(c) Solicit any Business for, or sell any products that are in
competition with the Company's products to, any company, which is a
customer or client of the Company or any of its subsidiaries as of the
Termination Date; or
(d) Solicit the employment of, or hire, any full time employee
employed by the Company or its subsidiaries as of the Termination Date.
The Company acknowledges that the Executive is the owner of more than
5% of the outstanding shares of Enhanced Telecommunications Services, Inc.
(d/b/a Telenational Marketing, together "ETS") and that the Executive holds
the title of Chairman of the Board and Chief Executive Officer of ETS. The
Executive hereby represents that he does not participate in the day-to-day
management of ETS, but is active at the board level. ETS does not directly
compete with the business of the Company and is primarily in the
telemarketing business both inbound and outbound. ETS provides customer
service, information processing, sales, and call processing for a variety
of companies including competitors of the Company. The Company acknowledges
that the Executive's continued employment with and ownership in ETS will
specifically be excluded from the Non-Compete provisions of this Agreement,
so long as ETS does not engage in any new business which is directly
competitive with the Company's current business. The Executive
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and the Company acknowledge that a conflict of interest may exist with
regards to business transactions between the Company and ETS. The Executive
agrees to recuse himself from business decisions and actions on behalf of
the Company when and if such a conflict of interest could have a material
adverse effect on the Company's operations or financial condition.
The term "Business," as used in this Section 13, shall mean any person
or entity which is an international facilities-based telecommunications
carrier or any of the services which are necessarily provided by an
international facilities-based telecommunications carrier to its customers.
14 . REMEDIES AND JURISDICTION.
(a) The Executive hereby acknowledges and agrees that a breach of the
agreements contained in Section 13 of this Agreement will cause irreparable
harm and damage to the Company, that the remedy at law for the breach or
threatened breach of the agreements set forth in Section 13 of this
Agreement will be inadequate, and that, in addition to all other remedies
available to the Company for such breach or threatened breach (including,
without limitation, the right to recover damages), the Company shall be
entitled to injunctive relief for any breach or threatened breach of the
agreements contained in Section 13 of this Agreement.
(b) All claims, disputes and other matters in question between the
parties arising under this Agreement, except those pertaining to Section 13
hereof, shall, unless otherwise provided herein, be decided by arbitration
in the State of Texas in accordance with the National Rules for the
Resolution of Employment Disputes of the American Arbitration Association
(including such procedures governing selection of the specific arbitrator
or arbitrators), unless the parties otherwise agree. The Company shall pay
the costs of any such arbitration. The award by the arbitrator or
arbitrators shall be final, and judgment may be entered upon it in
accordance with applicable law in any state or federal court having proper
jurisdiction.
15 . INDEMNIFICATION.
The Company agrees to indemnify and hold the Executive harmless from and
against any and all losses, liabilities, or costs (including, but not limited
to, reasonable attorney's fees), which the Executive may sustain, incur, or
assume as a result of, or relative to, any allegation, claim, civil or criminal
action, proceeding, charge, or prosecution, which may be alleged, made,
instituted, or maintained against the Executive or the Company, jointly or
severally, arising out of or based upon the Executive's employment with the
Company, to the fullest extent permitted by applicable law including, but not
limited to, any injury to person(s) or damage to property or business by reason
of any cause whatsoever, regardless of whether any such injury or damage is
caused by negligence on the part of the Executive. THIS INDEMNITY PROVISION IS
INTENDED TO INDEMNIFY THE EXECUTIVE (A) AGAINST THE CONSEQUENCES OF HIS OWN
NEGLIGENCE OR FAULT, REGARDLESS OF WHETHER THE EXECUTIVE IS SOLELY NEGLIGENT OR
CONTRIBUTORILY, PARTIALLY, JOINTLY, COMPARATIVELY, OR CONCURRENTLY NEGLIGENT
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WITH ANY OTHER PERSON, AND (B) AGAINST ANY LIABILITY OF THE EXECUTIVE BASED ON
APPLICABLE DOCTRINE OF STRICT LIABILITY. Not withstanding the foregoing, the
Company will not, however, indemnify the Executive for any claims, liabilities,
losses, damages or expenses that result solely from bad faith, gross negligence
or willful misconduct by the Executive.
16 . ATTORNEYS' FEES.
In the event that either party hereunder institutes any legal proceedings
in connection with its rights or obligations under this Agreement, the
prevailing party in such proceeding shall be entitled to recover from the other
party all costs incurred in connection with such proceeding, including
reasonable attorneys' fees, together with interest thereon as provided by
applicable law.
17 . SUCCESSORS.
This Agreement and all rights of the Executive hereunder shall inure to the
benefit of and be enforceable by the Executive's personal or legal
representatives, estate, executors, administrators, heirs, or beneficiaries. In
the event of the Executive's death, all amounts payable to the Executive under
this Agreement shall be paid to the Executive's surviving spouse, if the
Executive dies without a surviving spouse, to the Executive's estate. This
Agreement shall inure to the benefit of, be binding upon, and be enforceable by
or against, any successor, surviving or resulting corporation, or other entity
or any assignee of the Company to which all or substantially all of the business
and assets of the Company is transferred whether by merger, consolidation,
exchange, assignment, sale, lease, or other disposition or action.
18 . ENFORCEMENT.
The provisions of this Agreement shall be regarded as divisible, and if any
of such provisions or any part hereof is declared invalid or unenforceable by a
court of competent jurisdiction, the validity and enforceability of the
remainder of such provisions or the parts hereof and the applicability thereof
shall not be affected thereby.
19 . AMENDMENT OR TERMINATION.
This Agreement may not be amended or terminated during its term, except by
written instrument executed by both the Company and the Executive.
20 . SURVIVABILITY.
The provisions of Sections 10, 11, 12, 13 and 15 hereof and the provisions
hereof relating to the payment of the Accrued Benefits and the Severance Payment
shall survive the termination of this Agreement. 21 . ENTIRE AGREEMENT.
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21 . ENTIRE AGREEMENT.
This Agreement sets forth the entire agreement between the Executive and
the Company with respect to the subject matter hereof and supersedes all prior
oral or written agreements, negotiations, commitments, and understandings with
respect thereto.
22 . GOVERNING LAW; VENUE.
This Agreement and the respective rights and obligations of the Executive
and the Company hereunder shall be governed by and construed in accordance with
the laws of the State of Texas without giving effect to the provisions,
principles, or policies thereof relating to choice of law or conflict of laws.
Venue of any arbitration or other legal proceeding or action relating to this
Agreement shall be proper in Xxxxxx County, Texas.
23 . NOTICE.
Notices given pursuant to this Agreement shall be in writing and shall be
deemed given when received, and if mailed, shall be mailed by United States
registered or certified mail, return receipt requested, postage prepaid, if to
the Company, to:
WorldPort Communications, Inc.
0000 Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
with a copy to corporate counsel for the Company to:
Xxxxx & Xxxxxx LLP
Attn: Xx. Xxxxxxx X. Xxxxx, Esq.
000 Xxxx Xxxxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Tel: 000-000-0000
or to such other address as the Company shall have given to the Executive or,
if to the Executive, to:
Mr. Xxxxx Xxxxxx
0000 Xxxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx
Tel: (000) 000-0000
with a copy to counsel for the Executive to:
---------------------------
---------------------------
---------------------------
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or to such other address as the Executive shall have given to the Company.
24 . NO WAIVER.
No waiver by either party at any time of any breach by the other party of,
or any failure by the other party to comply with, any condition or provision of
this Agreement to be performed by the other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same time or at any prior
or subsequent time.
25 . HEADINGS.
The headings herein contained are for reference only and shall not affect
the meaning or interpretation of any provision of this Agreement.
26 . COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original but all of which together will constitute one
and the same instrument.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
its duly authorized officer, and the Executive has executed this Agreement, on
the date and year first above written.
THE COMPANY:
WORLDPORT COMMUNICATIONS, INC.
/s/Xxxx Xxxxxx
-----------------------------------
XXXX XXXXXX
CHIEF EXECUTIVE OFFICER
EXECUTIVE:
/s/Xxxxx Xxxxxx
-----------------------------------
XXXXX XXXXXX
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EXHIBIT A
Year One Performance Bonus Criteria
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