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EXHIBIT 10.15
[FORM OF]
CHANGE IN CONTROL AGREEMENT
This Agreement, dated ____________, 2000, is
made by and between ASIA GLOBAL CROSSING
LTD., a Bermuda company (as hereinafter
defined, the "Company"), and _____________
(the "Executive").
WHEREAS, the Board (as hereinafter defined) recognizes that the
possibility of a Change in Control (as hereinafter defined) exists and that such
possibility, and the uncertainty it may cause, may result in the departure or
distraction of key management employees of the Company; and
WHEREAS, the Executive is a key management employee of the Company
or of a Subsidiary (as hereinafter defined); and
WHEREAS, the Board has determined that the Company should
encourage the continued employment of the Executive by the Company or a
Subsidiary and the continued dedication of the Executive to his assigned duties
without distraction as a result of the circumstances arising from the
possibility of a Change in Control;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Company and the Executive hereby agree as
follows:
1. DEFINED TERMS. For purposes of this Agreement, the following
terms shall have the meanings indicated below:
(A) "Affiliate" with respect to any Person shall mean any other
Person directly or indirectly controlling, controlled by or under common control
with such first Person or any other Person designated by the Board of Directors
of such first Person in which such first Person has an interest.
(B) "Beneficial Owner" shall have the meaning ascribed to such
term under Rule 13d-3 under the Securities Exchange Act of 1934, as amended (or
any successor rule thereto).
(C) "Board" shall mean the Board of Directors of the Company, as
constituted from time to time.
(D) "Cause" for termination by the Company of the Executive's
employment shall mean (i) the willful failure by the Executive substantially to
perform the Executive's duties with the Company or a Subsidiary, other than any
failure resulting from the Executive's incapacity due to physical or mental
illness or any actual or anticipated failure after the issuance of a Notice of
Termination for Good Reason by the Executive in accordance with paragraph (A) of
Section 6, that continues for at least 30 days after the Board delivers to the
Executive a written demand for performance that identifies specifically and in
detail the manner in which the Board believes that the Executive willfully has
failed substantially to perform the Executive's duties, (ii) the willful
engaging by the Executive in misconduct that is demonstrably and materially
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injurious to the Company or any Subsidiary, monetarily or otherwise or (iii) an
act or acts on Executive's part constituting (x) a felony under the laws of the
United States or any state thereof or (y) a misdemeanor involving moral
turpitude.
(E) A "Change in Control" shall mean a Change in Control of the
Company or a Change in Control of Global Crossing, as applicable.
(F) A "Change in Control of the Company" shall mean the occurrence
of any of the following events subsequent to the date of this Agreement:
(i) any Person (other than the Company, any trustee or other fiduciary
holding securities under any of the Company's employee benefit plans, or
any company owned, directly or indirectly, by the Company's shareholders
in substantially the same proportions as their ownership of the stock of
the Company) becomes the Beneficial Owner, directly or indirectly, of
securities of the Company representing (a) a greater percentage of the
combined voting power of the Company's then outstanding securities than
the percentage of the combined voting power of the Company's then
outstanding securities held by Global Crossing and its Affiliates, so
long as there has not occurred a Change in Control of Global Crossing,
and (b) 30% or more of the combined voting power of the Company's then
outstanding securities;
(ii) during any period of 24 months (not including any period prior to
the date on which the registration statement of the Company's initial
public offering is declared effective by the Securities and Exchange
Commission), individuals who at the beginning of such period constitute
the Board, and any new director (other than (A) a director nominated by a
Person who has entered into an agreement with the Company to effect a
transaction described in clause (i), (iii) or (iv) of this definition,
(B) a director nominated by a Person (including the Company) who publicly
announces an intention to take or to consider taking actions (including,
but not limited to, an actual or threatened proxy contest) which if
consummated would constitute a Change in Control of the Company or (C) a
director nominated by any Person, other than Global Crossing and its
Affiliates, who is the Beneficial Owner, directly or indirectly, of the
securities of the Company representing 10% or more of the combined voting
power of the securities of the Company) whose election by the Board or
nomination for election by the Company's shareholders was approved in
advance by a vote of at least two-thirds of the directors then still in
office who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved, cease for
any reason to constitute at least a majority thereof;
(iii) the Company is merged or consolidated with any other company, other
than a merger or consolidation which would result in the Company's
shareholders immediately prior thereto continuing to own (either by
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remaining outstanding or by being converted into voting securities of the
surviving entity) more than 50% 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 Company's complete liquidation or the sale or disposition by the
Company of all or substantially all of the Company's assets, other than a
liquidation of the Company into a wholly-owned subsidiary.
(G) "Change in Control of Global Crossing" shall have the meaning
as defined in the 1998 Global Crossing Ltd. Stock Incentive Plan, as amended
form time to time.
(H) "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
(I) "Company" shall mean Asia Global Crossing Ltd. and any
successor to its business or assets, by operation of law or otherwise.
(J) "Date of Termination" shall have the meaning stated in
paragraph (B) of Section 6 hereof.
(K) "Disability" shall be deemed the reason for the termination by
the Company of the Executive's employment, if the Executive is unable to engage
in any substantial gainful activity by reason of a medically determinable
physical or mental impairment which constitutes a permanent and total
disability, as defined in Section 22(e)(3) of the Code (or any successor section
thereto).
(L) "Executive" shall mean the individual named in the first
paragraph of this Agreement.
(M) "Global Crossing" shall mean Global Crossing Ltd., a Bermuda
company, or any entity owned directly or indirectly by the shareholders of
Global Crossing Ltd. in substantially the same percentages as their ownership of
stock of Global Crossing Ltd.
(N) "Good Reason" for termination by the Executive of the
Executive's employment shall mean the occurrence, without the Executive's
express written consent, of any of the following:
(i) the assignment to the Executive of any duties inconsistent with the
Executive's status as a key management employee of the Company or of a
Subsidiary or a substantial adverse alteration in the nature or status of
the Executive's responsibilities from those in effect immediately prior
to the Change in Control;
(ii) a reduction in the Executive's annual base salary, target annual
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bonus, or long term incentive opportunity to any amount less than the
Executive's annual base salary, target bonus, or long-term incentive
opportunity, respectively, as in effect immediately prior to the Change
in Control. For this purpose, long-term incentive opportunities shall be
measured as of the date of grant using a methodology consistent with
prior long-term incentive grant practices;
(iii) the relocation of the Executive's principal place of employment to
a location more than 35 miles from the location of such principal place
of employment immediately prior to the Change in Control, except for
required business travel to an extent substantially consistent with the
Executive's business travel obligations immediately prior to the Change
in Control;
(iv) the failure to pay the Executive any portion of the Executive's
current compensation, or to pay or reimburse the Executive for any
expenses incurred by him for required business travel and documented in
accordance with reasonable Company policy;
(v) the failure by the Company to continue to provide the Executive with
benefits as favorable in the aggregate and in all material respects as
those enjoyed by the Executive under the Company's retirement, life
insurance, medical, health and accident, disability, or other employee
benefit plans in which the Executive was participating immediately prior
to the Change in Control; or the failure by the Company to provide the
Executive with the number of paid vacation days to which the Executive
was entitled in accordance with the Company's normal vacation policy in
effect immediately prior to the Change in Control; or
(vi) any purported termination by the Company of the Executive's
employment that is not effected in accordance with a Notice of
Termination satisfying the requirements of paragraph (A) of Section 6
hereof.
(O) "Notice of Termination" shall have the meaning stated in
paragraph (A) of Section 6 hereof.
(P) "Payment Trigger" shall mean the occurrence of both (i) a
Change in Control during the term of this Agreement and (ii) at any time on or
after such Change in Control, but before the end of the Protected Period, the
termination of the Executive's employment with the Company or a Subsidiary for
any reason other than (A) by the Executive without Good Reason, (B) by the
Company (or a Subsidiary) as a result of the Disability of the Executive or with
Cause or (C) as a result of the death of the Executive; provided, however, that
if the Executive's employment is terminated prior to a Change in Control at the
request of a Person engaged in a transaction or series of transactions that
would result in a Change in Control, such termination shall be deemed to occur
during the Protected Period. Any transfer of the Executive's employment
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from the Company to an Affiliate, from an Affiliate to the Company, or from one
Affiliate to another Affiliate shall not by itself constitute a termination of
the Executive's employment for purposes of this Agreement.
(Q) "Person" shall have the meaning used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended from time to time.
(R) "Protected Period" shall mean the 24-month period immediately
following the month in which a Change in Control occurs.
(S) "Subsidiary" shall mean any Company or other entity or
enterprise, whether incorporated or unincorporated, of which at least a majority
of the securities or other interests having by their terms ordinary voting power
to elect a majority of the board of directors or others serving similar
functions with respect to such Company or other entity or enterprise is owned by
the Company, directly or indirectly.
2. TERM OF AGREEMENT. This Agreement will become effective on the
date hereof and shall continue in effect through _______________ (the "Initial
Term").
The Initial Term of this Agreement automatically shall be extended
for one additional year at the end of the Initial Term, and then again after
each successive one year period thereafter (each such one year period following
the Initial Term a "Successive Period"). However, either party may terminate
this Agreement at the end of the Initial Term, or at the end of any Successive
Period thereafter, by giving the other party written notice of intent not to
renew, delivered at least one year prior to the end of such Initial Term or
Successive Period. If such notice is properly delivered by either party, this
Agreement, along with all corresponding rights, duties, and covenants shall
automatically expire at the end of the Initial Term or Successive Period then in
progress.
In the event that a Change in Control occurs (as such term is
herein defined) during the Initial Term or any Successive Period, upon the
effective date of such Change in Control, the term of this Agreement shall
automatically and irrevocably be renewed for a period of 24 full calendar months
from the effective date of such Change in Control. This Agreement shall
thereafter automatically terminate following the 24-month Change-in-Control
renewal period. Further, this Agreement shall be assigned to, and shall be
assumed by the purchaser in such Change in Control, as further provided in
Section 9 herein.
3. GENERAL PROVISIONS.
(A) The Company hereby represents and warrants to the Executive as
follows: The execution and delivery of this Agreement and the performance by the
Company of the actions contemplated hereby have been duly authorized by all
necessary corporate action on the part of the Company. This Agreement is a
legal, valid and legally binding obligation of the Company enforceable in
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accordance with its terms. Neither the execution or delivery of this Agreement
nor the consummation by the Company of the actions contemplated hereby (i) will
violate any provision of the certificate of incorporation of the Company or
bye-laws (or other charter documents) of the Company, (ii) will violate or be in
conflict with any applicable law or any judgment, decree, injunction or order of
any court or governmental agency or authority, or (iii) will violate or conflict
with or constitute a default (or an event which, with notice or lapse of time or
both, would constitute a default) under or will result in the termination of,
accelerate the performance required by, or result in the creation of any lien,
security interest, charge or encumbrance upon any of the assets or properties of
the Company under, any term or provision of the certificate of incorporation of
the Company or bye-laws (or other charter documents) of the Company or of any
contract, commitment, understanding, arrangement, agreement or restriction of
any kind or character to which the Company is a party or by which the Company or
any of its properties or assets may be bound or affected.
(B) No amount or benefit shall be payable under this Agreement
unless there shall have occurred a Payment Trigger during the term of this
Agreement. In no event shall payments in accordance with this Agreement be made
in respect of more than one Payment Trigger.
(C) This Agreement shall not be constructed as creating an express
or implied contract of employment and, except as otherwise agreed in writing
between the Executive and the Company, the Executive shall not have any right to
be retained in the employ of the Company or of a Subsidiary. Notwithstanding the
immediately preceding sentence or any other provision of this Agreement, no
purported termination of the Executive's employment that is not effected in
accordance with a Notice of Termination satisfying paragraph (A) of Section 6
shall be effective for purposes of this Agreement. The Executive's right,
following the occurrence of a Change in Control, to terminate his employment
under this Agreement for Good Reason shall not be affected by the Executive's
Disability or incapacity. The Executive's continued employment shall not
constitute consent to, or a waiver of rights with respect to, any act or failure
to act constituting Good Reason under this Agreement.
4. PAYMENTS DUE UPON A PAYMENT TRIGGER.
(A) The Company shall pay to the Executive the payments described
in this Section 4 upon the occurrence of a Payment Trigger during the term of
this Agreement.
(B) Upon the occurrence of a Payment Trigger during the term of
this Agreement, the Company shall pay to the Executive a lump sum payment, in
cash, equal to the product of:
(i) [three][two][one] multiplied by
(ii) the sum of --
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(a) the higher of the Executive's annual base salary (1) in effect
immediately prior to the occurrence of the Change in Control or (2)
in effect immediately prior to the Payment Trigger, plus
(b) the higher of the Executive's target annual bonus (1) for the
fiscal year (or other measuring period) prior to the fiscal year (or
other measuring period) in which the Change in Control occurs or (2)
for the fiscal year (or other measuring period) in which the Payment
Trigger occurs.
The amount determined under the foregoing provisions of this
paragraph (B) shall be reduced by any cash severance benefit otherwise paid to
the Executive under any applicable severance plan or other severance
arrangement. For purposes of this paragraph (B), amounts payable to the
Executive pursuant to an annual bonus plan for the fiscal year or other
measuring period described in clauses (B)(ii)(b) above, as applicable (the
"applicable year/period"), shall not include amounts attributable to a fiscal
year or other measuring period that commenced prior to the applicable
year/period and that become payable during the applicable year/period.
(C) Notwithstanding any provision of any incentive compensation
plan, including, without limitation, any provision of any incentive compensation
plan conditioning the receipt of any payment upon continued employment after the
completed fiscal year or other measuring period, the Company shall pay to the
Executive a lump sum amount, in cash, equal to the amount of any incentive
compensation that has been allocated or awarded to the Executive for a completed
fiscal year or other measuring period, preceding the occurrence of a Payment
Trigger under any incentive compensation plan but has not yet been paid to the
Executive.
(D) For the fiscal year or other measuring period during which the
Payment Trigger occurs, the Executive shall be entitled to a pro rata bonus
equal to the number of calendar days elapsed during the fiscal year or other
measuring period prior to the Date of Termination divided by the total days in
the fiscal year or measuring period, as the case may be, and multiplied by the
target bonus payable for such period.
(E) The payments provided for in paragraphs (B), (C) and (D) of
this Section 4 shall be made not later than the fifth day following the
occurrence of a Payment Trigger, unless the amounts of such payments cannot be
finally determined on or before that day, in which case, the Company shall pay
to the Executive on that day an estimate, as reasonably determined in good faith
by the Company, of the minimum amount of the payments to which the Executive is
clearly entitled and shall pay the remainder of the payments (together with
interest at the rate provided in section 1274(b)(2)(B) of the Code) as soon as
the amount thereof can be determined but in no event later than the thirtieth
day after the occurrence of a Payment Trigger. In the event the amount of the
estimated payments exceeds the amount subsequently determined to have been
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due, the excess shall constitute a loan by the Company to the Executive, payable
on the fifth business day after demand by the Company (together with interest at
the rate provided in section 1274(b)(2)(B) of the Code). At the time that
payments are made under this Section 4, the Company shall provide the Executive
with a written statement setting forth the manner in which the payments were
calculated and the basis for the calculations including, without limitation, any
opinions or other advice the Company has received from any outside counsel,
auditors or consultants (and any opinions or advice that are in writing shall be
attached to the statement).
(F) (i) In addition to the payments provided for above in this
Section 4, the Company shall provide or arrange to provide, at the same cost to
the Executive, and at the same coverage level as in effect as of the Date of
Termination (subject to changes in coverage levels applicable to all employees
who are similarly situated to the Executive prior to the Date of Termination), a
continuation of the Executive's (and the Executive's eligible dependents')
health and life insurance coverages for [36][24][12] months from the Date of
Termination. The applicable COBRA health insurance benefit continuation period
shall commence at the beginning of this 12 month benefit continuation period.
(ii) The providing of these health and life insurance benefits by
the Company shall be discontinued prior to the end of the [36][24][12] month
continuation period to the extent that the Executive becomes covered under the
health and/or life insurance coverages of a subsequent employer; provided that
such subsequent employer health insurance coverage does not contain any
exclusion or limitation with respect to any preexisting condition of the
Executive or the Executive's eligible dependents. For purposes of enforcing this
offset provision, the Executive shall have a duty to promptly inform the Company
in writing if the Executive becomes covered under the health and/or life
insurance coverages of a subsequent employer.
5. GROSS-UP PAYMENTS.
(A) In the event it shall be determined that any payment or
distribution by the Company or other amount with respect to the Company to or
for the benefit of the Executive, whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise, but
determined without regard to any additional payments required under this Section
5 (a "Payment"), is (or will be) subject to the excise tax imposed by Section
4999 of the Code or any interest or penalties are (or will be) incurred by the
Executive with respect to the excise tax imposed by Section 4999 of the Code
with respect to the Company (the excise tax, together with any interest and
penalties, are hereinafter collectively referred to as the "Excise Tax"), the
Executive shall be entitled to receive an additional cash payment (a "Gross-Up
Payment") from the Company in an amount equal to the sum of the Excise Tax and
an amount sufficient to pay the cumulative Excise Tax and all cumulative income
taxes (including any interest and penalties imposed with respect to such taxes)
relating to the Gross-Up Payment so that the net amount retained by the
Executive is equal to all payments to which Executive is entitled pursuant to
the terms of this Agreement (excluding the Gross-Up Payment) or otherwise less
income taxes and employment taxes (but not reduced by the Excise Tax or by
income taxes attributable to the Gross-Up Payment).
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(B) Subject to the provisions of paragraph (C) of this Section 5,
all determinations required to be made under this Section 5, including whether
and when a Gross-Up Payment is required and the amount of such Gross-Up Payment
and the assumptions to be utilized in arriving at the determination, shall be
made by a nationally recognized certified public accounting firm selected by the
Company with the consent of the Executive, which shall not unreasonably be
withheld (the "Accounting Firm"), and which shall provide detailed supporting
calculations both to the Company and the Executive within 30 days after the
receipt of notice from the Executive that there has been a Payment, or such
earlier time as is requested by the Company. All fees and expenses of the
Accounting Firm shall be borne solely by the Company. The Company, as determined
in accordance with this Section 5, shall pay any Gross-Up Payment to or on
behalf of the Executive within five days after the receipt of the Accounting
Firm's determination. If the Accounting Firm determines that no Excise Tax is
payable by the Executive, it shall so indicate to the Executive in writing. Any
determination by the Accounting Firm shall be binding upon the Company and the
Executive. As a result of uncertainty in the application of Section 4999 of the
Code at the time of the initial determination by the Accounting Firm, it is
possible that Gross-Up Payments that the Company should have made will not have
been made (an "Underpayment"), consistent with the calculations required to be
made hereunder. In the event the Company exhausts its remedies in accordance
with paragraph (C) of this Section 5 and the Executive thereafter is required to
make a payment of any Excise Tax, the Accounting Firm shall determine the amount
of Underpayment that has occurred and the Underpayment shall be promptly paid by
the Company to or for the benefit of the Executive.
(C) The Executive shall notify the Company in writing of any claim
by the Internal Revenue Service that, if successful, would require a Gross-Up
Payment (that has not already been paid by the Company). The notification shall
be given as soon as practicable but no later than ten business days after the
Executive is informed in writing of the claim and shall apprize the Company of
the nature of the claim and the date on which the claim is requested to be paid.
The Executive shall not pay the claim prior to the expiration of the 30-day
period following the date on which the Executive gives notice to the Company or
any shorter period ending on the date that any payment of taxes with respect to
the claim is due. If the Company notifies the Executive in writing prior to the
expiration of the 30-day period that it desires to contest the claim, the
Executive shall:
(i) give the Company any information reasonably requested by the
Company relating to the claim;
(ii) take any action in connection with contesting the claim as the
Company shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to the
claim by an attorney reasonably selected by the Company;
(iii) cooperate with the Company in good faith in order effectively to
contest the claim; and
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(iv) permit the Company to participate in any proceedings relating to
the claim.
The Company shall bear and pay directly all costs and expenses
(including additional interest and penalties) incurred in connection with the
contest and shall indemnify and hold the Executive harmless, on an after-tax
basis, for any Excise Tax or income tax or employment tax (including interest
and penalties with respect thereto) imposed as a result of the representation
and payment of costs and expenses. Without limitation of the forgoing provisions
of this Section 5, the Company shall control all proceedings taken in connection
with the contest and, at its sole option, may pursue or forego any and all
administrative appeals, proceedings, hearings, and conferences with the taxing
authority in respect of the claim and may, at its sole option, either direct the
Executive to pay the tax claimed and xxx for a refund or contest the claim in
any permissible manner, and the Executive agrees to prosecute the contest to a
determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company shall
determine. If the Company directs the Executive to pay the claim and xxx for a
refund, the Company shall advance the amount of the payment to the Executive, on
an interest-free basis, and shall indemnify and hold the Executive harmless, on
an after-tax basis, from any Excise Tax or income tax (including interest or
penalties with respect thereto) imposed with respect to the advance or with
respect to any imputed income with respect to the advance; and any extension of
the statute of limitations relating to payment of taxes for the taxable year of
the Executive with respect to which the contested amount is claimed to be due
shall be limited solely to the contested amount. The Company's control of the
contest shall be limited to issues with respect to which a Gross-Up Payment
would be payable hereunder and the Executive shall be entitled to settle or
contest, as the case may be, any other issue raised by the Internal Revenue
Service or any other taxing authority.
(D) If, after the receipt by the Executive of an amount advanced
by the Company pursuant to paragraph (C) of this Section 5, the Executive
becomes entitled to receive any refund with respect to the claim, the Executive
shall, subject to the Company's compliance with the requirements of paragraph
(C) of this Section 5, promptly pay to the Company the amount of the refund
(together with any interest paid or credited thereon after taxes applicable
thereto). If, after the receipt by the Executive of an amount advanced by the
Company pursuant to paragraph (C) of this Section 5, a determination is made
that the Executive shall not be entitled to any refund with respect to the claim
and the Company does not notify the Executive in writing of its intent to
contest the denial of refund prior to the expiration of 30 days after the
determination, then the advance shall be forgiven and shall not be required to
be repaid and the amount of the advance shall offset, to the extent thereof, the
amount of Gross-Up Payment required to be paid.
6. TERMINATION PROCEDURES.
(A) During the term of this Agreement, any purported termination
of the Executive's employment (other than by reason of death) shall be
communicated by written Notice of Termination from one party hereto to the
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other party hereto in accordance with Section 10 hereof. For purposes of this
Agreement, a "Notice of Termination" shall mean a written notice that indicates
the specific termination provision in this Agreement relied upon, and, if
applicable, the notice shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated. Further, a Notice of Termination
for Cause shall include a copy of a resolution duly adopted by the affirmative
vote of not less than a majority of the entire membership of the Board at a
meeting of the Board finding that, in the informed, reasonable, good faith
judgment of the Board, the Executive was guilty of conduct set forth in the
definition of Cause in Section 1(D), and specifying the particulars thereof in
detail.
(B) "Date of Termination" with respect to any purported
termination of the Executive's employment during the term of the Agreement
(other than by reason of death) shall mean (i) if the Executive's employment is
terminated for Disability, 20 business days after Notice of Termination is given
(provided that the Executive shall not have returned to the full-time
performance of the Executive's duties during that 20 business day period) and
(ii) if the Executive's employment is terminated for any other reason, the date
specified in the Notice of Termination, which, in the case of a termination by
the Company, shall not be less than ten business days except in the case of a
termination for Cause, and, in the case of a termination by the Executive, shall
not be less than ten business days nor more than 20 business days, respectively,
after the date such notice of Termination is given.
7. NO MITIGATION. The Executive shall not be required to seek
other employment or to attempt in any way to reduce any amounts payable to the
Executive by the Company pursuant to this Agreement. Further, except as provided
in Section 4(F), the amount of any payment or benefit provided for in this
Agreement shall not be reduced by any compensation earned by the Executive as
the result of employment by another employer, by retirement benefits, by offset
against any amount claimed to be owed by the Executive to the Company or a
Subsidiary, or otherwise.
8. DISPUTES.
(A) If a dispute or controversy arises out of or in connection
with this Agreement, the parties shall first attempt in good faith to settle the
dispute or controversy by mediation under the Commercial Mediation Rules of the
American Arbitration Association before resorting to arbitration or litigation.
Thereafter, any remaining unresolved dispute or controversy arising out of or in
connection with this Agreement shall, upon a written notice from the Executive
to the Company either before suit thereupon is filed or within 20 business days
thereafter, be settled exclusively by arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association in a city
located within the continental United States designated by the Executive.
Judgment may be entered on the arbitrator's award in any court having
jurisdiction. The Executive shall, however, be entitled to seek specific
performance of the Company's obligations hereunder during the pendency of
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any dispute or controversy arising under or in connection with this Agreement.
(B) Any legal action concerning this Agreement, other than a
mediation or an arbitration described in paragraph (A) of this Section 8,
whether instituted by the Company or the Executive, shall be brought and
resolved only in a state court of competent jurisdiction located in the
territory that encompasses the city, county, or parish in which the Executive's
principal residence is located at the time such action is commenced. The Company
hereby irrevocably consents and submits to and shall take any action necessary
to subject itself to the personal jurisdiction of that court and hereby
irrevocably agrees that all claims in respect of the action shall be instituted,
heard, and determined in that court. The Company agrees that such court is a
convenient forum, and hereby irrevocably agrees that all claims in respect of
the action shall be instituted, heard, and determined in that court, and hereby
irrevocably waives, to the fullest extent it may effectively do so, the defense
of an inconvenient forum to the maintenance of the action. Any final judgment in
the action may be enforced in other jurisdictions by suit on the judgment or in
any other manner provided by law.
(C) The Company shall pay all costs and expenses, including
attorneys' fees and disbursements, of the Company and, at least monthly, the
Executive in connection with any legal proceeding (including arbitration),
whether or not instituted by the Company or the Executive, relating to the
interpretation or enforcement of any provision of this Agreement, provided that
if the Executive instituted the proceeding and the judge, arbitrator, or other
individual presiding over the proceeding affirmatively finds that the Executive
instituted the proceeding in bad faith, the Executive shall pay all costs and
expenses, including attorneys' fees and disbursements, of Executive and the
Company. The Company shall pay prejudgment interest on any money judgment
obtained by Executive as a result of such proceeding, calculated at the rate
provided in Section 1274(b)(2) (B) of the Code.
9. SUCCESSORS: BINDING AGREEMENT.
(A) In addition to any obligations imposed by law upon any
successor to the Company, the Company shall require any successor (whether
direct or indirect, by purchase, merger, consolidation, or otherwise) to all or
substantially all of the business or assets of the Company expressly to 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. Failure of the Company to obtain the assumption and agreement prior to
the effectiveness of any 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 were to terminate his employment for Good Reason immediately after a
Change in Control and during the term of this Agreement, except that, for
purposes of implementing the foregoing, the date on which any succession becomes
effective shall be deemed the Payment Trigger occasioned by the foregoing deemed
termination of employment for Good Reason immediately following a Change in
Control. The provisions of Section 9 shall continue to apply to each
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subsequent employer of Executive bound by this Agreement in the event of any
merger, consolidation, or transfer of all or substantially all of the business
or assets of that subsequent employer.
(B) This Agreement shall inure to the benefit of and be
enforceable by the Executive's personal or legal representatives, executor,
administrators, successors, heirs, distributees, devisees, and legatees. If the
Executive shall die while any amount would be payable to the Executive hereunder
(other than amounts which, by their terms, terminate upon the death of the
Executive) if the Executive had continued to live, the amount, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement to
the executors, personal representatives, or administrators of the Executive's
estate.
10. NOTICES. For the purpose of this Agreement, notices and all
other communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed to the
respective addressed set forth below, 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 actual receipt:
To the Company:
Asia Global Crossing Ltd.
Wessex House
00 Xxxx Xxxxxx
Xxxxxxxx XX00, Xxxxxxx
Attn: Resident Representative
Copy to:
Asia Global Crossing Ltd.
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: General Counsel
To the Executive:
To the most recent address of Executive set forth in the personnel
records of the Company.
11. MISCELLANEOUS. No provision of this Agreement may be modified,
waived, or discharged unless such waiver, modification, or discharge is agreed
to in writing and signed by the Executive and an officer of the Company
specifically designated by the Board. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any
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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. No agreements or representations,
oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not expressly set forth in this
Agreement. The validity, interpretation, construction, and performance of this
Agreement shall be governed by the laws of the State of California. All
references to sections of the Securities Exchange Act of 1934 or the Code shall
be deemed also to refer to any successor provisions to such sections. Any
payments provided for hereunder shall be paid net of any applicable withholding
required under federal, state, or local law and any additional withholding to
which the Executive has agreed. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
12. VALIDITY. The invalidity or unenforceability of any provision
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.
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13. COUNTERPARTS. This Agreement may be executed in several
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 parties have signed this Agreement as of
the date set forth above.
Attest: ASIA GLOBAL CROSSING LTD.
By:
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Name: Name:
Title: Title:
Witness: EXECUTIVE:
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Print Name:
