Exhibit 10.8
▇▇▇▇ ATLANTIC EMPLOYEE SERVICES AGREEMENT
THIS AGREEMENT is made as of May 21,1998 BETWEEN
(1) ▇▇▇▇ ATLANTIC GLOBAL SYSTEMS COMPANY, a Delaware corporation with
an office at ▇ ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
("▇▇▇▇ Atlantic"): and
(2) FLAG LIMITED, a Bermuda company, with its registered office at ▇▇
▇▇▇-▇▇-▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇
("▇▇▇▇").
WHEREAS:
(A) FLAG is in the business of operating and maintaining an undersea
fiber optic cable system linking multiple countries from Europe to Asia
(the "System").
(B) Pursuant to the terms and conditions contained in that certain
Marketing Transition Agreement among ▇▇▇▇ Atlantic, FLAG and ▇▇▇▇
Atlantic Network Systems (Bermuda) Limited dated May 14, 1998 (the
"Transition Agreement"), ▇▇▇▇ Atlantic has agreed to provide the
services of those employees set forth in Exhibit A (the "▇▇▇▇ Atlantic
Employees") to FLAG, and ▇▇▇▇ Atlantic, will be compensated for
providing such ▇▇▇▇ Atlantic Employees to FLAG.
NOW THEREFORE, IT IS HEREBY AGREED as follows:
1. ▇▇▇▇ ATLANTIC OBLIGATIONS
1.1 During the term hereof, the ▇▇▇▇ Atlantic Employees shall provide
services to FLAG on a full time basis for the respective periods set forth in
Exhibit A. The services rendered by the ▇▇▇▇ Atlantic Employees shall be
rendered under the direction and control of FLAG's senior management. If
requested by FLAG, the ▇▇▇▇ Atlantic Employees shall work out of such office of
FLAG or any of its subsidiaries as FLAG may reasonably request. In the event of
an international assignment, FLAG shall pay associated international assignment
expenses on a basis to be agreed upon by FLAG and ▇▇▇▇ Atlantic prior to the
assignment.
1.2 The ▇▇▇▇ Atlantic Employees' respective salaries, fees and any
related agreements have been reviewed and accepted by FLAG. FLAG may by notice
require ▇▇▇▇ Atlantic to remove any ▇▇▇▇ Atlantic Employee at any time for
unsatisfactory performance, allowing for a reasonable time in light of the
circumstances of the removal and the need to substitute a replacement employee.
▇▇▇▇ Atlantic shall use its best efforts to ensure that any replacement for any
▇▇▇▇ Atlantic Employee shall possess suitable technical, managerial or other
appropriate qualifications commensurate with his or her functions. ▇▇▇▇ Atlantic
shall submit the name, salary, fees and any related agreement of any such
replacement to FLAG for its written approval (such approval not to be
unreasonably withheld or delayed). Any such replacement employee shall be a ▇▇▇▇
Atlantic Employee for
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purposes hereof.
2. FLAG PAYMENTS
2.1 In respect of each ▇▇▇▇ Atlantic Employee providing services to
FLAG during a calendar month (or any part thereof) during the term of this
Agreement, ▇▇▇▇ Atlantic shall invoice FLAG following the end of such calendar
month for the pre-approved employee costs incurred by ▇▇▇▇ Atlantic during
that month for such ▇▇▇▇ Atlantic Employee, such costs to include such ▇▇▇▇
Atlantic Employee's (i), salary and (ii), benefits, vacation pay, annual
incentive award and payroll costs (the costs of (ii) being an agreed upon
fixed percentage of salary); provided that the determination of whether any
▇▇▇▇ Atlantic Employee is entitled to receive an annual incentive award
outside of the target range within ▇▇▇▇ Atlantic Corporation shall be made by
FLAG and ▇▇▇▇ Atlantic, and provided further that nothing shall prevent FLAG
from awarding any supplemental bonus directly to any ▇▇▇▇ Atlantic Employee.
FLAG shall within 45 days of the receipt of such invoice pay ▇▇▇▇ Atlantic the
amount of such invoice.
2.2 FLAG shall promptly reimburse each ▇▇▇▇ Atlantic Employee for out
of pocket expenses incurred by such ▇▇▇▇ Atlantic Employee in providing
services pursuant hereto in accordance with FLAG's expense reimbursement
policy.
2.3 FLAG shall pay interest at a rate per annum equal to the prime
rate of Chase Manhattan Bank plus three percent on the amount of any invoice
which is not paid by its due
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date in full, except to the extent FLAG is disputing in good faith such
amount. Such interest shall accrue on the undisputed overdue amount from the
due date until payment in full. If FLAG disputes in good faith any invoice or
part thereof, FLAG shall pay all undisputed portions of the invoice.
2.4 All payments made to ▇▇▇▇ Atlantic hereunder shall be made in
U.S. dollars in same day available funds to such bank account as ▇▇▇▇ Atlantic
shall notify to FLAG from time to time.
2.5 All payments to be made by FLAG hereunder, other than following a
termination of this Agreement due to a breach by ▇▇▇▇ Atlantic, shall be made
without set-off or counterclaim except to the extent that any deduction or
withholding is required by law. ▇▇▇▇ Atlantic shall be entitled to any refunds
thereof.
3. DURATION
3.1 This Agreement shall be effective as of the date hereof and
unless sooner terminated in accordance with the provisions of Section 4 hereof
shall continue in force for a period of three years.
4. TERMINATION
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4.1 If either party commits, a material breach of this Agreement and
either such breach is not cured within 30 days after notice from the other
party specifying the breach or, if not reasonably curable during such period,
such party has not commenced and diligently continued its efforts to effect a
cure or has not fully cured such breach within 60 days after such notice, the
other party shall be entitled to terminate this Agreement.
4.2 FLAG may terminate this Agreement for any or all of the ▇▇▇▇
Atlantic Employees without cause at any time by giving 30 days' prior notice
to ▇▇▇▇ Atlantic. In the event any ▇▇▇▇ Atlantic Employee does not wish to
continue to provide services to FLAG pursuant hereto, ▇▇▇▇ Atlantic shall give
FLAG as much notice as practicable and shall, if requested by FLAG, provide a
replacement in accordance with Section 1.2 hereof.
4.3 Except as otherwise set forth in this Agreement, termination
shall be in addition to, and not in lieu of, other rights and remedies. The
rights and obligations of either party that have accrued prior to such
termination, including but not limited to the right to payment for the ▇▇▇▇
Atlantic Employees, shall not be affected thereby.
5. LIABILITY
5.1 Each party shall indemnify and bold the other party harmless
against any losses, damages, liabilities, claims or demands, including all
costs, expenses and reasonable attorney's fees on account thereof or in
connection with any investigation or preparation related thereto or the
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enforcement of this indemnification provision, that may be made or incurred as
a result of the negligent or willful acts or omissions of the indemnifying
party. However, ▇▇▇▇ Atlantic shall not be responsible in any way, and FLAG
shall indemnify ▇▇▇▇ Atlantic, for losses, damages, claims, or demands that
may be made or incurred as a result of the acts or omissions of the ▇▇▇▇
Atlantic Employees to the extent that they act pursuant to the instructions of
FLAG. The indemnified party agrees to notify the indemnifying party promptly
of any written claims or demands against the indemnified party for which the
indemnifying party would be responsible for hereunder. The Indemnified party
shall not settle or compromise any such claims or demands without the prior
consent of the indemnifying party.
5.2 THE PARTIES AGREE THAT NEITHER PARTY SHALL BE LIABLE TO THE OTHER
PARTY FOR ANY SPECIAL DAMAGES, INCIDENTAL DAMAGES, CONSEQUENTIAL DAMAGES OR
LOSS OF PROFITS ARISING OUT OF THIS AGREEMENT.
6. MISCELLANEOUS
6.1 Except for the Transition Agreement, this Agreement supersedes
and merges all prior proposals, understandings and any other agreements, oral
or written, between the parties relating to the subject matter of this
Agreement. This Agreement may not be modified or altered except by written
instrument duly executed by the parties.
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6.2 This Agreement shall be binding upon, and inure to the benefit
of, each of the parties hereto and their respective successors and permitted
assigns, provided that no party hereto may assign this Agreement without the
prior written consent of the other party, and any attempted assignment without
such consent shall be null and void and provided further that FLAG may assign
any of its rights and/or obligations to any appropriate subsidiary of FLAG.
Nothing contained herein, express or implied, shall be deemed to confer any
right or remedy upon, or obligate any party to any person or entity other than
the parties hereto.
6.3 Neither party shall be considered an agent of the other party or
shall have the right, power or authority to create any obligation or duty,
express or implied, on behalf of the other party.
6.4 This Agreement may be entered into in any number of counterparts
and by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all the counterparts shall
together constitute one and the same instrument.
6.5 This Agreement shall be governed by and construed in accordance
with the laws of the state of New York, without giving effect to the
principles of conflicts of laws thereof.
6.6 Unless settled by mutual agreement, any dispute or difference
whatsoever that might arise from the performance or as to the meaning of this
Agreement or as to any matter or items of whatsoever nature howsoever arising
out of or in connection with this Agreement shall be submitted to arbitration
in accordance with and subject to the Rules of Conciliation and Arbitration of
the
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International Chamber of Commerce and finally settled by three arbitrators
appointed in accordance with such rules, unless the parties agree upon a
single arbitrator under such rules. The place of arbitration shall be New York
City, and the language of the arbitration shall be English. Any decision or
award of the arbitral tribunal shall be final and binding upon the parties.
The costs of such arbitration shall be borne in equal proportions by the
parties provided that each party shall bear the cost of its own legal counsel.
6.7 Each notice, demand or other communication given or made under
this Agreement shall be in writing and delivered or sent to the relevant party
at its address or fax number set out below (or such other address or fax
number as the addressee has by five days' prior notice specified to the
sending party):
Any notice required to be delivered to ▇▇▇▇ Atlantic shall be sent
to:
▇▇▇▇ Atlantic Global Systems Company
Attn.: Director of Human Resources
▇ ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇ Atlantic
Legal Department
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
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Any notice required to be delivered to FLAG shall be sent to:
FLAG Limited
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇-▇▇-▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
Attn.: Chief Executive Officer
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
7. CONFIDENTIALITY
It is understood and mutually agreed that:
(a) Except as required by law or regulation, the parties hereto shall
keep strictly confidential this Agreement and any facts, claims, allegations
or terms and conditions relating to all or part hereof, any statements,
negotiations, proceedings or opinions in connection herewith and any
information made available by either party to the other (including by FLAG or
any of its subsidiaries to any ▇▇▇▇ Atlantic Employee) pursuant hereto; and
(b) Except as required by law or regulation, neither party hereto shall
create any publicity or make any statement to anyone concerning the other
party to this Agreement or any of their affiliates, or present or former
officers, directors, employees or agents. IN WITNESS WHEREOF, the Parties have
caused this Agreement to be executed by their duly authorized representatives
effective as of the day and year first written above.
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FLAG LIMITED ▇▇▇▇ ATLANTIC GLOBAL
SYSTEMS COMPANY
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Chairman & CEO Title: President
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