EXHIBIT 10.9
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (the "Agreement") is entered into by
and between Infonet Services Corporation, a Delaware Corporation (the "Company")
and Xxxxxx X. Xxxxxxx, an individual (the "Executive").
WITNESSETH:
WHEREAS the Board of Directors has resolved that it is in the best interest
of the Company that its officers be subject to the terms of an executive
employment agreement; and
WHEREAS the Company and the Executive now desire to enter into this
Agreement and set forth the terms and conditions of the Executive's employment.
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
promises and covenants set forth below and other good and valuable
consideration, receipt of which is hereby acknowledged, the Company and the
Executive do hereby agree as follows:
ARTICLE I
EMPLOYMENT
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The Company hereby employs the Executive to perform the duties and
responsibilities normally associated with the position of Senior Vice President,
General Counsel and Secretary, or such other position to which the Executive may
be promoted, for the term of this Agreement. The Executive agrees to abide by
the Company's Certificate of Incorporation, its By-Laws and the direction by its
Board of Directors except to the extent such direction would be inconsistent
with applicable law.
ARTICLE II
REMUNERATION
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For the first year of this Agreement, the Executive shall be paid the Base
Salary in effect on January 1, 2000. The Executive's Base Salary shall
thereafter be reviewed annually in accordance with the Company's then existing
salary review policies. The Executive shall also be entitled to receive and be
eligible to participate in those Benefits made available by the Company during
the term of this Agreement.
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ARTICLE III
TERM AND TERMINATION OF AGREEMENT
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Section 3.1 Term and Expiration of Agreement
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This Agreement shall be effective commencing on January 1, 2000 and shall
continue in effect for an initial period of 36 months ("Initial Term") and shall
thereafter be extended without further action of the parties for additional
periods of 24 months ("Extended Term") unless the Executive receives notice from
the Company not later than 24 months prior to the last day of such Initial Term
or any Extended Term of its election not to extend the Agreement. The last day
of the Initial Term or any such Extended Term shall hereinafter be referred to
as the "Expiration Date."
Section 3.2 Death or Disability
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The Company may terminate this Agreement without any further obligation
(except as provided in this Section 3.2) to the Executive on the Death or
Disability of the Executive. If the Executive's Death or Disability occurs in
the course or as the result of the performance of his duties under this
Agreement, however, the Executive's Base Salary shall continue to be paid to the
Executive's estate or the Executive for a period of two (2) years from the date
of Death or Disability. Nothing in this Section 3.2 is intended to effect the
entitlement of the Executive or his estate to any payments or benefits to which
he or it would otherwise be entitled under any other Company plan or program.
Section 3.3 Termination for Cause
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The Company may terminate this Agreement at any time without any further
obligation to the Executive for Cause as defined herein.
Section 3.4 Retirement
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In the event that the Executive voluntarily elects Retirement during the
term of this Agreement, the Executive shall be entitled to the benefits under
the Company's regular Retirement program, or, if a separation Retirement
agreement has been entered into between the Executive and the Company, benefits
shall be provided according to the terms of that agreement.
Section 3.5 Resignation
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The Executive is entitled to voluntarily resign his employment with the
Company during the term of this Agreement. If the Executive resigns his
employment with the Company for other than Good Reason, this Agreement shall be
deemed terminated without any further obligation of the Company to the
Executive.
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Section 3.6 Termination Without Cause (The "Early Termination Option").
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The Company has the right to terminate the Executive's employment, without
cause, at any time prior to the Expiration Date by providing the Executive with
a Notice of Termination and, receipt of which, shall cause the Company to pay
the Executive the Separation Payments for the applicable period set forth in
Section 3.8 (the "Early Termination Option").
Section 3.7 Resignation for Good Reason
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The Executive shall be entitled to resign his employment with the Company
for Good Reason at any time prior to the Expiration Date and receive the
Separation Payments for the applicable period set forth in Section 3.8 by
providing the Company with a Notice of Termination. The fact that the Executive
may choose not to resign his employment for Good Reason after the occurrence of
any event constituting Good Reason shall in no way affect the Executive's right
to do so upon the occurrence of a subsequent transaction or event which
constitutes a Good Reason.
Section 3.8 Separation Payments
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(a) In the event the Early Termination Option is exercised by the Company
or the Executive resigns his employment with the Company for Good Reason, the
Executive shall be entitled to receive Separation Payments through the
Expiration Date or for a period of two (2) years from the effective date of the
Executive's termination or resignation, whichever period is longer.
(b) Unless otherwise directed by the Executive, the Separation Payments
shall be paid or provided on a continuing monthly basis on the first business
day of each month commencing with the month immediately following the effective
date of the Executive's termination or resignation, whichever is applicable.
(c) Upon the exercise of the Early Termination Option by the Company or
the Executive's resignation for Good Reason, the Executive shall be entitled to
accrue benefits (as defined in Section 5.2) during the period the Executive
receives or is entitled to receive separation payments.
(d) The Company shall use the compensation which the Executive receives
or is entitled to receive as Separation Payments for the purpose of determining
the amount of any benefit to which the Executive may be entitled under any plan
or program.
(e) The Executive agrees that so long as he is receiving Separation
Payments, he shall not become employed by or consult with any company whose
primary business is the provision of public international value added network
services.
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(f) The Executive agrees that so long as he is receiving Separation
Payments, he shall not induce or solicit any employee of the Company to
terminate his or her employment with the Company for any purpose.
(g) The Company's obligation to pay the Separation Payments and otherwise
comply with the provisions of this Section 3.8 shall be unconditional. The
Executive shall not be required to mitigate the amount of any payment provided
for in this Section 3.8.
ARTICLE IV
CONFIDENTIAL INFORMATION
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Section 4.1 Confidential Business Information
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The Executive agrees that he shall hold in strictest confidence and not
disclose, directly or indirectly, to any person, firm or corporation, without
the express prior written consent of the Company, any trade secrets or any
confidential business information of the Company including, but not limited to,
corporate planning, production, distribution or marketing processes;
manufacturing techniques; customer lists or customer leads; marketing
information or procedures; development work; work in process; financial
statements or notes, schedules or supporting financial data; or any other secret
or confidential matter relating to the products, sales or business of the
Company.
Section 4.2 Return of Information
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The Executive agrees that no later than five (5) days after his employment
is terminated with the Company he will deliver to the Company and will not keep
in his possession or deliver to anyone else, any and all drawings, notes,
memoranda, specifications, financial statements, customer lists, product
surveys, data, documents or other material containing or disclosing any of the
matters referred to in Section 4.1 above.
Section 4.3 Remedy for Breach of this Article
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The Executive acknowledges that any breach of this Article IV by him will
cause irreparable injury to the Company for which the available remedies at law
will not be adequate. Accordingly, in the event of any such breach or threatened
breach of any provision of this Article, in addition to any other remedy
provided by law or in equity, the Company shall be entitled to appropriate
injunctive relief, in any court of competent jurisdiction, restraining the
Executive from any such actual or threatened breach of this Article. The
Executive stipulates to the entry against him of any such temporary, preliminary
or permanent injunction and agrees not to resist the Company's application for
such equitable relief, except on the grounds that the acts or omissions alleged
by the Company did not violate any of the provisions of this Article.
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ARTICLE V
DEFINITIONS
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Whenever the following terms are used below in this Agreement, they shall
have the meaning specified below, and no other, unless the context clearly
indicates to the contrary. The masculine pronoun shall include the feminine and
neuter, and the singular the plural, where the context so indicates.
Section 5.1 Base Salary
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"Base Salary" shall mean the Executive's regular annualized rate of pay
exclusive of all other Benefits as that term is defined below.
Section 5.2 Benefits
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"Benefits" shall mean Benefits pursuant to this contract and all employee
welfare and pension benefit plans or programs and all other plans or programs
including, but not limited to medical and dental insurance, Infonet Stock
Incentive Plan ("ISIP"), 401(k) plans, the Infonet Supplemental Executive
Retirement Plan (the "ISERP"), bonus and incentive compensation plans, vacation
plans, etc. which the Executive or employees of the Company, and, in particular,
employees with senior management responsibility, are eligible for and entitled
to participate in, whether now in effect or added during the term of this
Agreement.
Section 5.3 Cause
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"Cause" shall mean (i) the Executive's conviction of a felony or a
misdemeanor involving moral turpitude or (ii) the Executive's willful breach or
the habitual neglect of his duties under this Agreement which have a material
adverse impact on the financial condition of the Company; provided, however,
that the Company shall first have given the Executive written notice of the
alleged breach or areas of neglect and a reasonable opportunity to cure.
Section 5.4 Change in Control
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A "Change in Control" shall be deemed to have occurred if (i) 20% or more
of the Company's outstanding securities as owned on January 1, 2000 are sold,
transferred or otherwise alienated; or (ii) after 20% or more of the Company's
outstanding securities as owned on October 19, 1994 are sold, transferred or
otherwise alienated as set forth in (i) above, any additional securities of the
Company or sold, transferred or otherwise alienated; or (iii) the Stockholders
of the Company approve a merger or consolidation of the Company with any other
corporation or entity regardless of which entity is the survivor, other than a
merger or consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or being converted into voting securities of the
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surviving entity) at least 80% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation; or (iv) the Stockholders of the Company approve a
plan of complete liquidation or winding-up of the Company or an agreement for
the sale or disposition by the Company of all or substantially all of the
Company's assets; or (v) if the director nominees of 3 members of the
Stockholders are not elected; or (vi) any event which the Board of Directors
determines should constitute a Change in Control.
Section 5.5 Disability
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"Disability" shall mean the Executive's absence from performance of his
assigned duties for the Company on a full-time basis for six consecutive
calendar months as a result of incapacity due to medically documented physical
or mental illness and which, in the opinion of the Executive's physician, makes
it impossible for the Executive to perform his duties and responsibilities under
this Agreement.
Section 5.6 Good Reason
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"Good Reason" shall mean the occurrence of any of the following events
without the Executive's express written consent:
(a) the assignment to the Executive of duties inconsistent
with the position and status of the Executive as set forth in Recital A, a
substantial alteration in the nature or status of the Executive's
responsibilities (other than any such alteration primarily attributable to a
medical or physical infirmity of the Executive which the Company has
attempted to accommodate), or
(b) the failure to pay or a reduction by the Company in the
Executive's Base Salary as the same may be increased from time to time
during the term of this Agreement or the Company's failure to increase
(within 12 months of the Executive's last increase in Base Salary) the
Executive's Base Salary in an amount which at least equals, on a percentage
basis, the average percentage increase in Base Salary for all key management
employees within the Company; or
(c) the elimination or reduction by the Company of any of the
Benefits to which the Executive is eligible for an entitled to participate
in, whether now in effect or added during the term of this Agreement or the
failure of the Company to provide the Executive with Benefits or facilities
at least comparable to those Benefits or facilities made available to other
key management employees within the Company; or
(d) a Change in Control; or
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(e) any purported termination of the employment of the
Executive by the Company which is not effected according to the requirements
of this Agreement.
Section 5.7 Notice of Termination
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"Notice of Termination" shall mean a notice, in writing, to the Executive
from the Company or to the Company from the Executive, which states the decision
of the Company or the Executive to terminate the Executive's employment and
which (i) indicates the specific termination provision enumerated in this
Agreement relied upon, (ii) sets forth in reasonable detail the facts and
circumstances alleged to provide a basis for termination of the Executive's
employment by the Company or by the Executive and (iii) states the effective
date of the termination which shall not be less than thirty (30) days nor more
than sixty (60) days from the date of the Notice of Termination. Such notice
must be communicated to the Executive or to the Company in accordance with
Section 6.4 herein.
Section 5.8 Retirement
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"Retirement" shall mean termination of the Executive's employment on or
after the date on which the Executive attains an age and years of service which
entitles him to retire in accordance with any Retirement plan or program
provided by the Company or agreement entered into between the Executive and the
Company.
Section 5.9 Separation Payments
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"Separation Payments" shall mean for the Executive: (i) the average annual
total monetary consideration received from the Company during the twelve (12)
month period immediately preceding the effective date of his termination or
resignation and (ii) the continuation of his Benefits.
ARTICLE VI
MISCELLANEOUS
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Section 6.1 Action to Challenge or Enforce Agreement
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Should either (i) the Company, its successors or assigns, or any person
acting on behalf of the Company seek to challenge this Agreement or any of its
terms in any action or legal proceeding or (ii) the Executive seek to enforce
this Agreement or any of its terms in any action or legal proceeding, the
Company shall reimburse the Executive for all costs and attorneys' fees incurred
in connection with any such action or proceeding.
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Section 6.2 Successors; Binding Agreement
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The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company to expressly assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform it if no such succession had taken place. The failure of
the Company to obtain such assumption agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement and shall entitle the
Executive to compensation from the Company in the same amount and on the same
terms as the Executive would be entitled to hereunder if the Executive had
resigned his employment for Good Reason.
Section 6.3 Successors and Assigns
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This Agreement shall inure to the benefit of, and be enforceable by, the
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees of the Executive.
Section 6.4 Notice
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Notices and all communications provided for in this Agreement shall be in
writing and shall be deemed to have been received when delivered or mailed by
United States registered mail, return receipt requested, postage prepaid,
addressed to the respective addresses set forth at the end of this Agreement,
provided that all notices to the Company shall be directed to the attention of
the President with a copy to the Secretary of the Company, or to such other
address as either party may have furnished to the other in writing in accordance
herewith, except that notice of change of address shall be effective only upon
receipt.
Section 6.5 Taxes
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It is expressly understood and agreed by and between the Company and the
Executive that the Executive shall only be responsible for ordinary income taxes
should he receive payments under this Agreement. Any other excise taxes,
penalties, interest or other payments which the Executive may be required to pay
by any taxing authority shall be borne by the Company.
Section 6.6 No Waiver
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No provision of this Agreement may be modified, waived or discharged
unless in writing and signed by the Executive and such officer of the Company as
may be specifically designated or authorized by the Board of Directors or by a
Committee of the Board of Directors. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time.
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Section 6.7 Entire Agreement
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This Agreement represents the sole and Entire Agreement among the parties
and supersedes all prior agreements, negotiations, and discussions between the
parties hereto and/or their representatives. Any amendment to this Agreement
must be in writing specifically referring to this Agreement and signed by duly
authorized representatives of all of the parties hereto.
Section 6.8 Controlling Law
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The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Delaware.
Section 6.9 Invalid Provision
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The invalidity or unenforceability of any provisions of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect.
Section 6.10 No Attack on Agreement
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This Agreement shall not be subject to attack on the ground that any or
all of the legal theories or factual assumptions used for negotiating purposes
are for any reason inaccurate or inappropriate. The parties agree that the
language of this Agreement shall not be construed for or against any particular
party.
Section 6.11 Confidentiality
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The Executive agrees to keep confidential and not disclose any of the
terms of this Agreement to any person (including, but not limited to, any
current or former employees of the Company) other than his attorneys and/or tax
advisors unless required to do so by law.
Section 6.12 Counterparts
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This Agreement may be executed in several counterparts, each of which
shall be deemed to be an original, and all such counterparts together shall
constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date set forth below.
INFONET SERVICES CORPORATION, Xxxxxx X. Xxxxxxx
a Delaware Corporation
By: _______________________________ _____________________________
Xxxx X. Xxxxxxx, President
Address: Address:
Infonet Services Corporation Xxxxxx X. Xxxxxxx
0000 Xxxx Xxxxx Xxxxxx P.O. Box 0000
Xx Xxxxxxx, Xxxxxxxxxx 00000-0000 Xxxxx Xxxxxx Xxxxxxxxx, XX 00000
Date: _____________________________ Date: ________________________
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