1
EXHIBIT 10.6
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, by and between FirstCom Corporation, a Texas
corporation (the "COMPANY"), and Xxxxxx X. Xxxxxxxx (the "EXECUTIVE"), dated as
of the 9th day of May, 2000.
WHEREAS, the Company desires the Executive serve as its General
Counsel, and the Executive desires to so serve, in each case upon the terms and
conditions set forth herein.
NOW THEREFORE, in consideration of the mutual covenants herein
contained, the Company and the Executive hereby agree as follows:
1. EMPLOYMENT PERIOD.
(a) AGREEMENT TO EMPLOY. The Company hereby agrees to employ the
Executive, and the Executive hereby agrees to be employed by the Company,
pursuant to the terms and conditions set forth in this Agreement. The Executive
represents that (I) he is entering into this Agreement voluntarily and that his
employment hereunder and compliance with the terms and conditions hereof will
not conflict with or result in the breach by him of any agreement to which he is
a party or by which he may be bound, (II) he has not, and in connection with his
employment with the Company will not, violated any non-solicitation or other
similar covenant or agreement by which he is or may be bound and (III) in
connection with his employment with the Company he will not use any confidential
or proprietary information he may have obtained in connection with employment
with any prior employer.
(b) TERM OF EMPLOYMENT. Unless the Executive's employment shall
sooner terminate pursuant to Section 4, the Company shall employ the Executive
for a term commencing on May 9, 2000 (the "COMMENCEMENT DATE") and ending on the
second anniversary thereof (the "INITIAL TERM"). Effective upon the expiration
of the Initial Term and of each Additional Term (as defined below), the
Executive's employment hereunder shall be deemed to be automatically extended,
upon the same terms and conditions, for an additional period of one year (each,
an "ADDITIONAL TERM"), in each such case, commencing upon the expiration of the
Initial Term or the then current Additional Term, as the case may be, unless, at
least 90 days prior to the expiration of the Initial Term or such Additional
Term, either the Company or the Executive shall give written notice to the other
of its intention not to extend the Employment Period (as defined below). The
period during which the Executive is employed pursuant to this Agreement shall
be referred to as the "EMPLOYMENT PERIOD".
2. POSITION AND DUTIES.
(a) During the Employment Period, the Executive shall be employed as
General Counsel of the Company and shall have overall responsibility for all
legal matters affecting the Company or its subsidiaries and shall have such
duties and responsibilities as are customarily assigned to individuals serving
2
in such positions and such other duties consistent with Executive's titles and
positions as the Board of Directors of the Company (the "BOARD") or the
Company's Chief Executive Officer specifies from time to time including, but not
limited to, supervising all attorneys employed by the company or any of its
subsidiaries, and selecting and overseeing any outside counsel retained by the
Company or any of its subsidiaries. The Executive shall also be given a
reasonable opportunity to review any press releases and regulatory filings to be
issued or filed by the Company. The Executive, in carrying out his duties under
this Agreement, shall report and be subject to the Chief Executive Officer and
the Board of Directors. During the Employment Period, and excluding any periods
of vacation, holiday, personal leave and sick leave to which the Executive is
entitled, the Executive shall devote the Executive's full business time,
attention and ability to the business and affairs of the Company and shall use
the Executive's reasonable best efforts to carry out the Executive's
responsibilities faithfully and efficiently in a professional manner. It shall
not be considered a violation of the foregoing for the Executive to (I) serve on
corporate or civic boards reasonably approved by the Company or on charitable
boards or committees, (II) deliver lectures or fulfill speaking engagements and
(III) manage his or his family's personal investments, in each case so long as
such activities do not substantially interfere with the performance of the
Executive's responsibilities as an employee of the Company in accordance with
this Agreement, do not violate the Company's rules and policies (or present a
material conflict of interest with the Company) and do not otherwise constitute
a violation of Section 6 of this Agreement. The Executive shall comply with the
rules and policies of the Company that are generally applicable to the Company's
senior executives.
(b) The Executive's primary office shall be located in the
metropolitan Miami, Florida area (it being understood that Executive's position
will require substantial travel).
3. COMPENSATION.
(a) BASE SALARY. During the Employment Period, the Executive shall
receive an annual base salary of $250,000.00 payable pursuant to the Company's
normal payroll practices, but no less frequently than monthly ("ANNUAL BASE
SALARY"). Commencing in 2001, the Annual Base Salary then in effect shall be
reviewed by the Company by no later than April 15th of each year and may be
increased (but not decreased) by such amount as the Company in its sole
discretion shall determine.
(b) ANNUAL BONUS. The Executive shall be entitled to participate in
an annual bonus plan for its executive officers that is intended to comply with
the performance-based exemption provisions of Section 162(m) of the Internal
Revenue Code of 1986, as amended (the "CODE"). Executive's target annual bonus
will be 50% of his Annual Base Salary as in effect for such year. Executive's
actual annual bonus will be determined based on specified target performance
goals with respect to which such target and maximum bonus, etc., will be
determined as established by the Compensation Committee of the Board or by the
Chief Executive Officer.
(c) STOCK OPTION GRANT. Effective as of the Commencement Date, the
Company shall grant the Executive options (the "Options") to purchase 200,000
shares of the Company's common stock, par value $0.001 per share pursuant to an
2
3
option agreement substantially in the form attached as Exhibit A. The Options
shall qualify as "incentive stock options" under Section 422 of the Code to the
maximum extent permissible under the Code and the balance of the Options shall
be non-qualified stock options. The Options shall vest and become exercisable
with respect to one half (50%) of the shares subject to the Options on the
second anniversary of the Commencement Date, twenty-five percent (25%) upon the
third anniversary of the Commencement Date, and the final twenty-five percent
(25%) on the fourth anniversary of the Commencement Date. The Options shall have
an exercise price per share equal to the fair market value of a share of the
Company's common stock on the date of grant. The Options shall be subject to
such other restrictions as determined by the Company and as set forth in the
related stock option agreement to be entered into between the Executive and the
Company. As provided in the Merger Agreement referred to in Section 14(d), the
Options will, upon consummation of the transactions contemplated in the Merger
Agreement, be exchanged for equivalent options of AT&T Latin America Corp.. Any
applicable stock option agreement underlying the Options will be in the
substantially same form provided to other peer employees of the Company.
(d) BENEFIT PLANS AND PERQUISITES. The Executive shall be entitled to
participate in all benefit, pension, savings, welfare, perquisite and other
plans or arrangements that the Company may establish from time to time for its
senior executive officers, subject to the terms and conditions of such plans or
arrangements.
(e) CAR ALLOWANCE. The Executive shall be entitled to a car allowance
of $400 per month during the Employment Period.
(f) SIGNING BONUS. As promptly as reasonably practicable following
the Commencement Date, the Executive shall be paid a signing bonus of $55,000.
(g) EXPENSES. (A) The Company will reimburse Executive for all
reasonable expenses for temporary living arrangements incurred by Executive in
relocating to South Florida within the first sixty (60) days of this Agreement.
Receipts for any such expenses must be submitted to the Company. In no event
shall such reimbursement exceed an aggregate of $5,000.00. (B) During the
Employment Period, the Executive shall be entitled to receive reimbursement for
all reasonable business expenses incurred by the Executive in carrying out the
Executive's duties under this Agreement in accordance with the policies of the
Company, provided that the Executive complies with the policies, practices and
procedures of the Company for submission of expense reports, receipts, or
similar documentation of such expenses.
(h) VACATION. During the Employment Period, the Executive shall be
entitled to paid vacation of four (4) weeks per year.
4. TERMINATION OF EMPLOYMENT.
(a) DEATH OR DISABILITY. The Executive's employment shall terminate
automatically upon the Executive's death or upon a determination by the Board to
terminate the Executive's employment as a result of his Disability during the
Employment Period. For purposes of this Agreement, "DISABILITY" shall mean a
physical or mental disability that prevents or is reasonably expected to
3
4
prevent, with or without a reasonable accommodation, the performance by the
Executive of his duties hereunder for a continuous period of 90 days or longer
or for 180 days or more in any 12-month period. The determination of Executive's
Disability shall (i) be made by an independent physician who is reasonably
acceptable to the Company and Executive (or his representative), (II) be final
and binding on the parties hereto and (III) be made taking into account such
competent medical evidence as shall be presented to such independent physician
by Executive and/or the Company or by any physician or group of physicians or
other competent medical experts employed by Executive and/or the Company to
advise such independent physician. This paragraph shall be applied in conformity
with the Americans with Disabilities Act and other applicable laws.
(b) BY THE COMPANY. The Company may terminate the Executive's
employment during the Employment Period for Cause or without Cause. For purposes
of this Agreement, "CAUSE" shall mean the Executive's (I) engaging in fraudulent
or dishonest conduct (as determined by a finding, order, judgement or decree in
any court or administrative agency of competent jurisdiction, in any action or
proceeding, whether civil, criminal, administrative or investigative) that the
Board reasonably determines has or would have a material adverse impact on the
Company, its affiliates or their respective businesses; (II) conviction of, or
entering a plea of nolo contendere to, a felony criminal offense or comparable
crime in any jurisdiction that uses a different nomenclature; (III) willful
refusal to perform his material employment-related duties or responsibilities or
intentionally and knowingly engaging in any activity that is in material
conflict with or is materially adverse to the business interests of the Company,
its affiliates or their respective businesses; (IV) gross negligence in the
performance of his material employment-related duties or responsibilities; or
(V) breach of any material provision of the employment agreement (in the case of
(iii), (iv) and (v), that is not cured by the Executive within 30 days of
receipt of prior written notice from the Company setting forth in reasonable
detail the circumstances giving rise to such Cause). A termination for Cause
shall include a determination by the Board no later than six months following
the termination of the Employment Period that circumstances existed during the
Employment Period that would have justified a termination by the Company for
Cause. A termination of the Executive by the Company shall not be a termination
for Cause for purposes of this Agreement unless the determination to so
terminate the Executive's employment is made by a resolution adopted by the
Board (excluding the Executive) following a meeting convened upon no less than
10 days prior written notice to the Executive and at which the Executive and his
legal counsel shall have had the reasonable opportunity to be heard by the
Board.
(c) BY THE EXECUTIVE. The Executive may terminate employment with or
without Good Reason. For purposes of this Agreement, "GOOD REASON" means,
without the Executive's written consent: (I) a material diminution of the
Executive's duties or responsibilities or the assignment of responsibilities
that are materially inconsistent with his position and responsibilities
hereunder; (II) a reduction in the Executive's base salary, annual bonus or
long-term incentive compensation opportunity (it being understood that a
4
5
reduction in the dollar amount of Executive's annual bonus from year to year
solely as the result of achievement or failure to achieve the target performance
objectives provided in the annual bonus plan shall not constitute a reduction in
Executive's annual bonus opportunity) or the benefits to be made available
pursuant to Section 3(d); (III) requiring Executive's principal place of
business to be located other than as provided in Section 2(b); or (iV) a
material breach by of any other provision of the Agreement, in each case that is
not cured by the Company within 30 days of receipt of prior written notice from
the Executive setting forth in reasonable detail the circumstances giving rise
to such Good Reason. Notwithstanding anything in this Agreement to the contrary,
Good Reason shall not include the termination or discharge of the Executive by
the Company from any duties, responsibilities, title or employment as Secretary
of the Company.
(d) TERMINATION PROCEDURES. Any termination of the Executive's
employment by the Company or by the Executive shall be communicated by Notice of
Termination to the other party hereto given in accordance with this Agreement.
For purposes of this Agreement, a "NOTICE OF TERMINATION" means a written notice
which (I) indicates the specific termination provision in this Agreement relied
upon, (II) to the extent applicable, sets 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 and (III) if the Date of Termination
(as defined below) is other than the date of receipt of such notice, specifies
the termination date. For purposes of this Agreement, "DATE OF TERMINATION"
means (I) if the Executive's employment is terminated by the Company or by the
Executive (other than for death or Disability), 90 days following the date of
receipt of the Notice of Termination and (II) if the Executive's employment is
terminated by reason of death or Disability, the Date of Termination shall be
the date of death of the Executive or, in the case of Disability, the date of
the determination of the Executive's Disability, provided that the Company may
pay the Executive (at the rate of his Annual Base Salary as then in effect) in
lieu of part or all of such notice period.
(e) EFFECT OF TERMINATION. Effective as of any Date of Termination,
or, if earlier, as of any date specified by the Company at or following the
delivery of a Notice of Termination, the Executive shall resign, in writing,
from all Board memberships and other positions then held by him with the Company
and its Affiliates.
5. OBLIGATIONS OF THE COMPANY UPON TERMINATION.
(a) GENERAL. If, during the Employment Period, the Executive's
employment terminates for any reason, the Executive (or his estate, beneficiary
or legal representative) shall be entitled to receive (I) any earned or accrued
but unpaid Annual Base Salary through the Date of Termination (including with
respect to unused vacation time), (II) in the case of any termination of
employment other than for Cause, any earned but unpaid annual bonus with respect
to any fiscal year of the Company ending prior to the Date of Termination and
(III) all amounts payable and benefits accrued under any otherwise applicable
plan, policy, program or practice of the Company (other than relating to
severance) in which Executive was a participant during his employment with
Company in accordance with the terms thereof (including, but not limited to,
amounts deferred under the deferred compensation plan referred to in Section
4(d)).
5
6
(b) OTHER THAN FOR CAUSE, DEATH OR DISABILITY; GOOD REASON. If,
during the Employment Period, the Company terminates the Executive's employment,
other than for Cause, death or Disability, or the Executive terminates
employment for Good Reason, the Company shall, subject to Section 12, in
addition to the amounts provided in paragraph (a) above, pay to the Executive
(or his estate, beneficiary or legal representative):
(i) in twelve (12) equal monthly installments commencing on the first
day of the month following the Date of Termination, the sum of: (A) the
Executive's Annual Base Salary (as then in effect), or the Executive's
Annual Base Salary that would otherwise have been payable for the remainder
of the Initial Term, whichever is greater; and (B) the greater of the
Executive's target bonus for the year in which the Date of Termination
occurs or the average of the Executive's actual annual bonus paid with
respect to the two years preceding the year in the which Date of
Termination occurs, such sum then divided by twelve (12); and
(ii) at the time annual bonuses for the fiscal year in which the Date
of Termination occurs are paid, a pro rata annual bonus based upon actual
performance under the annual bonus plan for such fiscal year (as determined
by the Board or the Compensation Committee in its reasonable discretion),
to the extent not otherwise paid.
In addition, (i) if the Executive's employment terminates under this section
prior to the second anniversary of the Commencement Date, notwithstanding
anything in Section 3(c) to the contrary, the Options shall vest and become
exercisable with respect to one-half (50%) of the shares subject to the Options
and (ii) the Executive and the Executive's eligible spouse, dependents and
beneficiaries will continue to be eligible to participate in the Company's
medical, dental, disability, life and other welfare insurance plans (subject to
the Executive continuing to make any required contributions to such plans) for a
period of twelve (12) months following the Date of Termination (or the Company
shall provide equivalent benefits for such period); provided that such continued
benefits shall cease upon the Executive becoming eligible for comparable
benefits from a subsequent employer.
6. COVENANT NOT TO COMPETE. The Executive acknowledges and agrees
that the Company has a legitimate interest in being protected from the
Executive's being employed in a position of management by an entity that
competes with the Company. The Executive and the Company have considered
carefully how best to protect the legitimate interests of the Company without
unreasonably restricting the economic interests of the Executive, and hereby
agree to the following restrictions, in addition to those contained in Section
7, as the most reasonable and equitable under the circumstances. During the
Employment Period and for a period of twenty-four (24) months after the
Executive's termination of employment with the Company for any reason, including
expiration of the Employment Period (the "RESTRICTION PERIOD"), the Executive
will not, directly or indirectly (whether as sole proprietor, partner or
venturer, stockholder, director, officer, employee or consultant or in any other
capacity as principal or agent or through any person, subsidiary or employee
acting as nominee or agent):
6
7
(a) Conduct or engage in or be interested in or associated with any
person, firm, association, partnership, corporation or other entity that, within
the "Territory" (as defined in the Regional Vehicle Agreement referred to in the
Merger Agreement), directly competes with any service or product that the
Company actually provides to its customers, or that the Company has taken
substantial steps to commence providing that is a significant part of the
Company's business or intended to be a significant part of the Company's
business in the Company's business plan, in each case determined as of the Date
of Termination (the "BUSINESS"), PROVIDED that the foregoing shall not apply if
the Executive's interest or association with such competitor is unrelated to the
Business; provided, further, that the foregoing the "Business" shall not be
deemed to include cable television services or programming, broadcast
television, internet access or content or consumer wireless communications or
services unless such products or services are a significant part of the
Company's business or intended to be a significant part of the Company's
business in the Company's business plan, in each case determined as of the Date
of Termination.
(b) Take any action, directly or indirectly, to finance, guarantee or
provide any other material assistance to any person, firm association,
partnership, corporation or other entity which conducts or engages in the
Business in the Territory with respect to any activity that competes with the
Business;
(c) Influence or attempt to influence any person, firm, association,
partnership, corporation or other entity who is a contracting party with the
Company at any time during the Restriction Period to terminate any written
agreement with the Company except to the extent the Executive is acting on
behalf of the Company in good faith; or
(d) Hire or attempt to hire for employment any person who is employed
by the Company at the time of hiring or attempted hiring or whose active
employment with the Company ceased less than six months prior to such time, or
attempt to influence any such person to terminate employment with the Company,
except to the extent the Executive is acting on behalf of the Company in good
faith; provided, however, that nothing herein shall prohibit the Executive from
general advertising for personnel not specifically targeting any employee or
other personnel of the Company.
The restrictive provisions of this Agreement shall not prohibit the
Executive from having as an investment an equity interest in the securities of
any corporation engaged in the Business, which securities are listed on a
recognized securities exchange or traded in the over-the-counter market to the
extent that such interest does not exceed 2% of the value or voting power of
such corporation and does not constitute control of such corporation. For
purposes of this Section 6 and Sections 7, 8, 9 and 10 of this Agreement, the
term "Company" shall include the Company and each of its affiliates.
7. CONFIDENTIAL INFORMATION. The Executive acknowledges and agrees
that all material information that is not publicly available or generally known
in the industry concerning the Company's business including, without limitation,
information relating to its products, customer lists, pricing, trade secrets,
patents, business methods, and cost data, business plans and strategies
(collectively, the "CONFIDENTIAL INFORMATION") is and shall remain the property
of the Company. The Executive recognizes and agrees that all of the material
7
8
Confidential Information, whether developed by the Executive or made available
to the Executive, other than information that is not material to the Company or
generally known to the public or generally known in the industry, is a unique
asset of the business of the company, the disclosure of which would be damaging
to the Company. Accordingly, the Executive agrees to hold such material
Confidential Information in a fiduciary capacity for the benefit of the Company.
The Executive agrees that he will not at any time during or within 10 years
after the Executive's employment with the Company for any reason, directly or
indirectly, disclose to any Person any material Confidential Information the
disclosure of which could harm the Company, other than information that is
already known to the public or generally know in the industry, except as may be
required in the ordinary course of business of the Company or as may be required
by law. Promptly upon the termination of this Agreement for any reason, the
Executive agrees to return to the Company any and all documents, memoranda,
drawings, notes and other papers and items (including all copies thereof,
whether electronic or otherwise) embodying any Confidential Information of the
Company which are in the possession or control of the Executive. Information
concerning the Company's business that becomes public as a result of the
Executive's breach of this Section 7 shall be treated as Confidential
Information this Section 7. The Executive shall not be deemed to have breached
this Section 7 unless the disclosure of such Confidential Information actually
causes harm to the Company or any of its affiliates.
8. BREACH OF CERTAIN PROVISIONS. The Executive acknowledges that a
violation on the Executive's part of any of the covenants contained in Sections
6 or 7 of this Agreement would cause immeasurable and irreparable damage to the
Company. The Executive represents that his economic means and circumstances are
such that the provisions of this Agreement, including the non-competition,
non-solicitation of employees, confidentiality and Company property provisions,
will not prevent him from providing for himself and his family on a basis
satisfactory to him and them. Accordingly, the Executive agrees that the Company
shall be entitled to injunctive relief in any court of competent jurisdiction
for any actual or threatened violation of any such covenant in addition to any
other remedies it may have. The Executive agrees that in the event that any
arbitrator or court of competent jurisdiction shall finally hold that any
provision of Sections 6 or 7 hereof is void or constitutes an unreasonable
restriction against the Executive, the provisions of such Section shall not be
rendered void but shall apply to such extent as such arbitrator or court may
determine constitutes a reasonable restriction under the circumstances. Any
breach by the Executive of the provisions of Sections 6 or 7 of this Agreement
shall relieve the Company of all obligations to any further payments to the
Executive pursuant to this Agreement (including under all Company equity award
grants pursuant to Section 3) or otherwise under any incentive or equity awards
made by the Company and, in the case of a breach of Section 6 of this Agreement,
shall entitle the Company to repayment from the Executive, upon demand, of all
amounts previously paid to the Executive following or in the six months
preceding such breach with respect to previously granted equity awards (i.e., in
the case of any stock options, the net gain realized by the Executive with
respect thereto during such period). These remedies are in addition to any other
remedies the Company may have with respect to any such breach.
8
9
9. PROPERTY OF THE COMPANY. The Executive acknowledges that from
time to time in the course of providing services pursuant to this Employment
Agreement, he shall have the opportunity to inspect and use certain property,
both tangible and intangible, of the Company, including Confidential
Information. The Executive hereby agrees that such property shall remain the
exclusive property of the Company and shall be returned to the Company upon the
Executive's termination of employment.
10. INTANGIBLE ASSETS. The Executive shall not at any time have or
claim any right, title or interest in any trade name, trademark, copyright, or
other similar rights belonging to or used by the Company and shall not have or
claim any rights, title or interest in any material or matter of any sort
prepared for or used in connection with the business of the Company or promotion
of the Company, whether produced, prepared or published in whole or in part by
the Executive.
11. LITIGATION; COOPERATION. If this Agreement is terminated by the
Company other than for Cause or by the Executive for Good Reason, in
consideration of the payments to be made to the Executive by the Company
pursuant to Section 5(b) of this Agreement, the Executive agrees, during the
period that the Company is actually making such payments to the Executive and
providing benefits to the extent required pursuant to Section 5(b), to provide
to the Company and its affiliates truthful and complete cooperation including,
but not limited to, the Executive's appearance at interviews and depositions at
reasonable times (taking into account the Executive's then employment and place
of residence) in all regulatory and litigation matters relating to the Company
and the Executive's employment by the Company, whether or not such matters have
been commenced at the time of such termination, and to provide to counsel to the
Company and its affiliates, upon request, all documents in the Executive's
possession or under his control relating to such regulatory and litigation
matters, all at no additional compensation to the Executive; provided, however,
that the Company will reimburse the Executive for (A) all reasonable expenses,
including travel, lodging, meals and attorneys' fees and (B) any salary
forfeited by the Executive or vacation time consumed by him during time spent by
the Executive, in connection with the foregoing.
12. RELEASE. In consideration of the payments to be made to the
Executive pursuant to Section 5(b) of this Agreement and as a condition to the
payment thereof, the Executive acknowledges that all such payments, if made in
accordance with the terms of this Agreement, shall constitute complete
satisfaction of all obligations owed by the Company to the Executive hereunder
and shall further constitute the Executive's sole remedy against the Company
regarding the Executive's employment hereunder. The parties hereby agree that if
this Section 12 becomes applicable they will execute a mutually acceptable
general release to reflect the provisions of this Section..
13. ARBITRATION. Any dispute, controversy, or question arising under,
out of, or relating to this Agreement (or the breach thereof) or, Executive's
employment with the Company or termination thereof (including, but not limited
to, claims of discrimination), shall be referred for arbitration to be held in
Miami, Florida (or such other place as the parties and the arbitrator shall
agree) to a neutral arbitrator selected by the Executive and the Company and
this shall be the exclusive and sole means for resolving such dispute (other
9
10
than for injunctive relief under Section 8 of this Agreement). The arbitration
shall be conducted in accordance with the Employment Arbitration Rules (the
"Rules") of the American Arbitration Association (the "AAA") in effect at the
time of the arbitration, except that the arbitrator shall be selected by
alternatively striking from a list of five arbitrators supplied by the AAA, and
the decision of the arbitrator shall be governed by the rule of law. Such right
to submit a dispute arising hereunder to arbitration and the decision of the
neutral arbitrator shall be final, conclusive and binding on all parties and
interested persons and no action at law or in equity shall be instituted or, if
instituted, further prosecuted by either party other than to enforce the award
of the neutral arbitrator. The arbitrator shall take submissions and hear
testimony, if necessary, and shall render a written decision as promptly as
possible. The arbitrator may require discovery for good cause shown. Each party
shall bear its own costs and expenses incurred in connection with any such
arbitration; provided the Company will initially pay for the fees, time, charges
and expenses of the arbitrator and the AAA; provided, further that the
arbitrator shall be entitled to award to the prevailing party reimbursement of
its reasonable legal costs and expenses (including with respect to the
arbitrator and the AAA).
14. SUCCESSORS
(a) This Agreement is personal to the Executive and, without the
prior written consent of the Company, shall not be assignable by the Executive
except by will or the laws of descent and distribution. This Agreement shall
inure to the benefit of and be enforceable by the Executive's legal
representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns, provided that the Company may not
assign this Agreement except in connection with the assignment or disposition of
all or substantially all of the assets or stock of the Company. This Agreement
shall be assigned by the Company to AT&T Latin America Corp. upon the
consummation of the transactions contemplated by the Merger Agreement. Except as
specifically provided in this Agreement, "Company" shall mean both the Company
as defined above and any such successor, by operation of law or otherwise.
15. MISCELLANEOUS.
(a) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Florida, without reference to its conflict of law
rules.
(b) All notices and other communications under this Agreement shall
be in writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
IF TO THE EXECUTIVE.
Xxxxxx X. Xxxxxxxx
c/o Xxxxxxx X. Xxxxxxxxx, Esq.
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
10
11
IF TO THE COMPANY
TO ITS CHIEF EXECUTIVE OFFICER
FIRSTCOM CORP.
000 XXXXXXXX XXXXXX
XXXXX 000
XXXXX XXXXXX, XX 00000
with a copy to:
AT&T Corp.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: Executive Vice-President, Human Resources
or to such other address as either party furnishes to the other in writing in
accordance with this paragraph. Notices and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement. If any provision of this Agreement shall be held invalid or
unenforceable in part, the remaining portion of such provision, together with
all other provisions of this Agreement, shall remain valid and enforceable and
continue in full force and effect to the fullest extent consistent with law.
(d) Notwithstanding any other provision of this Agreement, the
Company may withhold from amounts payable under this Agreement, and shall pay
over to the appropriate authorities in a manner consistent with all applicable
requirements, all federal, state, local and foreign taxes that are required to
be withheld by applicable laws or regulations.
(e) The Executive's or the Company's failure to insist upon strict
compliance with any provision of, or to assert any right under, this Agreement
shall not be deemed to be a waiver of such provision or right or of any other
provision of or right under this Agreement. This Agreement may not be amended or
modified except by a written agreement executed by the parties hereto or their
respective successors and legal representatives.
11
12
IN WITNESS HEREOF, the Executive has hereunto set the
Executive's hand and, pursuant to the authorization of its Board of Directors,
the Company has caused this Agreement to be executed in its name on its behalf,
all as of the day and year first above written.
FirstCom Corporation
By: Xxxxxxxx Northland
------------------------------
Title: Chief Executive Officer
--------------------------
Xxxxxx X. Xxxxxxxx
/s/ Xxxxxx Xxxxxxxx
---------------------------------
12
