SEPARATION AGREEMENT
between
CARRIER1 INTERNATIONAL GMBH
HEREINAFTER REFERRED TO AS THE ,,COMPANY"
and
XX. XXXX XXXXXXXXX
HEREINAFTER REFERRED TO AS ,,EMPLOYEE"
The following Separation Agreement is agreed upon:
1) The employment relationship between the Company and the Employee is
terminated by mutual agreement on 14 August, 2001 and the employment
agreement dated March 4, 1998 between the Employee and the Company
(known at that time as Carrier1 AG) (the "employment agreement") is
hereby terminated except Sections 4.02 [Noncompetition and
Nonsolicitation Covenants], 4.03 [Infringement of Executive's
Obligation], 4.04 [Specific Performance], 5.04 [Governing Law; Consent
to Jurisdiction].
2) The Employee will be released from the workplace and paid twelve
month's base salary in lieu of completing his contractual notice
period. In return, the Employee agrees (i) to make himself available
during the same twelve month period for transition activities and in
any other way that the Company reasonably requests and (ii) to resign
with immediate effect (or at such other later date as may be
reasonably requested by the Company) from any and all corporate
functions (including as a management or board member, or officer or
any other similar function) which the Employee has with the Company or
any other entity directly or indirectly holding a majority or minority
equity interest in (including with correlative meanings, "owning") or
controlling, or owned or controlled by, or under common ownership or
control with the Company (each a "Carrier1 entity", and together
"Carrier1") or any other legal entity to which he has been nominated
or appointed by a Carrier1 entity for any such corporate function. The
Employee hereby agrees to execute such documents or take such steps as
may be necessary and appropriate to effectuate preceding clause (ii).
Any vacation days not yet taken will be paid out. The applicable
proceeds from the Employee's pension plan will be transferred in
accordance with the applicable laws and statutes pursuant to the
Employee's instructions.
3) The Employee will be entitled hereunder: (i) to retain custody of the
34,130 shares in Carrier1 International SA that he purchased pursuant
to the Securities Purchase Agreement (referred to hereafter), (ii) (a)
to 213,333 vested options (with an exercise price of $2 US Dollar per
ordinary share) that were granted to the Employee in March 1998 under
the Carrier1 International XX 0000 Option Plan (together with all
ancillary documents, the "1999 Option Plan") and (b) to immediate
vesting as of the date hereof of all remaining unvested options
granted under the 1999 Option Plan, provided that 71,111 of such
remaining options shall not be exercisable until March 1, 2002 and
71,111 of such remaining options shall not be
exercisable until Xxxxx 0, 0000, (xxx) to immediate vesting as of the
date hereof of 22,222 options (with an exercise price of $15 US Dollar
per ordinary share) representing 25% of 88,888 options granted to the
Employee in December 2000 under the Carrier1 International XX 0000
Option Plan (together with all ancillary documents, the "2000 Option
Plan"), provided that such options shall not be exercisable until
December 15, 2001, (iv) to immediate vesting as of the date hereof of
50,000 options with an exercise price of $7.25 US Dollar per ordinary
share) representing 25% of 200,000 options granted to the Employee in
April 2001, provided that such options shall not be exercisable until
April 27, 2002, and (v) until the second anniversary of the date
hereof, to exercise options after they have become exercisable as
provided herein and are otherwise exercisable; provided that, in each
case of clauses (i)-(v) above, these shares, options and shares
issuable upon exercise of the options remain subject to the
restrictions of the applicable agreements (including the
Securityholders Agreement dated as of March 1st, 1999 among Carrier1
International SA, Carrier One LLC and the other securityholders,
including the employee, the Securities Purchase Agreement dated as of
March 1st, 1999 among Carrier1 International SA, Carrier One LLC and
the purchasers from time to time, including the employee, and
respectively the 1999 Option Plan and 2000 Option Plan, each as
amended, novated, supplemented and restated from time to time). Except
as set forth in clauses (iii) and (iv) above, all unvested options
which were granted to the Employee in December 2000 and in April 2001,
respectively, are hereby cancelled for no additional consideration.
All applicable personal taxes are to be borne by the Employee and the
Employee indemnifies and holds each Carrier1 entity harmless from and
against any and all taxes payable by any Carrier1 entity which are in
any way attributable or arise from the holding, exercising or
disposing of any of the options or shares referred to above.
4) Except as provided in this agreement and except any compulsory
provisions of the employment law, the Employee , for himself and his
heirs and personal representatives, hereby fully and forever release
the Company and their respective subsidiaries, affiliates, officers,
directors, employees, agents and representatives, from any and all
claims, liabilities, promises, contracts, and suits which have been or
could have been asserted by Employee or on his behalf, in any forum by
reason of matters arising prior to the date of this Agreement. The
Company on its behalf and on behalf of each Carrier1 entity hereby
fully and forever release the Employee from any and all claims,
liabilities, promises, contracts, and suits which have been or could
have been asserted by any or all of them or on their behalf, in any
forum by reason of matters arising prior to the date of this
Agreement, other than any claim, liability, promise, contract or suit
based in material part on a state of facts or matter of which the
Company or any other Carrier1 entity do not currently have actual
knowledge and for which Employee could have been dismissed for "Cause"
under the Employment Agreement.
5) The Employee shall not make any false, disparaging or derogatory
remarks in public or private about the Institutional Investors as
defined in Section 10 of the Securityholder's Agreement, the Company
or any other Carrier1 entity (including their officers, directors,
employees, agents, or representatives) or family members, as
applicable) or about business affairs, prospects, products or services
of Carrier1, except to the extent required by law, and then only after
consultation with the Company to the maximum extent possible in order
to maintain goodwill for each of the parties. Subject to the preceding
sentence, the Employee may discuss his work experience with Carrier1
with prospective employers or business partners but he shall refer any
written or oral requests for other information or commentary regarding
Carrier1 to Carrier1. The Employee may not divulge to any person not
employed by Carrier1 to use for his own benefit or for the benefit of
any person not employed by Carrier1 any confidential or non-public
information obtained while associated with Carrier1. Confidential
information shall include, without limitation, any information with
respect to which Carrier1 has an obligation of confidentiality, any
operational, technical, marketing, compensation, structural,
organizational, financial or other information of any kind whatsoever
concerning Carrier1. Confidential information shall not include
information which is or becomes generally available
to the public other than as a result of a disclosure by the Employee.
For a period of two years after the date of this letter, the Employee
shall not directly or indirectly recruit, hire, solicit or induce or
attempt to recruit, hire, solicit or induce, any Employee of Carrier1
or any of its affiliated companies to terminate their employment with,
or otherwise cease their relationship with such company or employ any
such person in any manner or capacity. In case of each breach of an
obligation set forth in this section 5) the Employee shall pay to the
Company CHF50,000.00 and in addition he shall compensate the Company
for any direct or indirect damages caused to any Carrier1 entity (in
the context of the breach of an obligation set forth in this section
5).
6) The Employee has to give back the property of any Carrier1 entity
(e.g. mobile phone, company credit card, code card, office keys) no
later than ten days from the date hereof and declares that he has not
given any such items to any third party and that he does not have the
intention to do so. The Employee, at his own cost, may retain use of
the company car and exercise any right held to purchase the car at the
end of the lease of the car and the Employee will assume all
obligations under such lease
7) This agreement and the documents referred to herein contain the entire
obligation of the parties hereto with respect to the subject matter
hereof and supersede any prior expressions of intent or understandings
with respect to this matter. This agreement may not be amended,
modified or supplemented in any respect except by written agreement
entered into by the parties hereto. If any one or more of the
provisions contained in this agreement or any document in connection
herewith shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired. In the event that
the Employee breaches any provision of this agreement, the Company or
any other entity shall be entitled to pursue any remedy available.
8) This entire agreement and understanding is governed by the laws of
Switzerland. Any dispute, controversy or claim arising out of or
relating to this agreement or the employment agreement shall be
submitted to the courts of Zurich, Switzerland.
9) Please address any inquiries or notices hereunder to the General
Counsel, Carrier1 International GmbH, Xxxxxxxxxxxxxx 00, XX - 0000
Xxxxxx, Xxxxxxxxxxx.
Zurich, Switzerland, August 14, 2001
CARRIER1 INTERNATIONAL GMBH CARRIER1 INTERNATIONAL GMBH
/s/ Kees van Ophem /s/ Xxxxxx Xxxxx
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Kees van Ophem Xxxxxx Xxxxx
Director Carrier1 International GmbH Vice President - Human Resources
General Counsel and Executive Vice President
Corporate Services
Employee:
/s/ Stig Johansson
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