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Exhibit 10
EXECUTIVE AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of the
13th day of October, 2000 by and between GLOBALNET XXXXXXXXX.XXX, INC., a
Delaware corporation with its principal office at 0000 X. Xxxxxxxx Xxxx Xxxx,
Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000 (the "Company"), and Xxx X. Xxxxxx (the
"Executive") whose address is 00000 Xxxxxxxxxx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx
00000.
RECITALS
1. The Executive has been appointed as Chief Operating Officer and Group
General Counsel.
2. The Executive possesses intimate knowledge of the business and affairs
of the Company, its policies, technologies, methods and personnel.
3. The Board of Directors (the "Board") of the Company recognizes that the
Executive's contribution to the growth and success of the Company has been and
will be substantial and desires to assure the Company of the Executive's present
and continued employment in an executive capacity and to compensate him
therefore.
4. The Board has determined that this Agreement will reinforce and
encourage the Executive's continued attention and dedication to the Company.
5. The Executive is willing to make his services available to the Company
on the terms and conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreement set forth herein, the parties hereby agree as follows:
1. EMPLOYMENT.
1.1 Employment and Term. The Executive shall continue to serve the Company,
on the terms and conditions set forth herein, for the period (the "Term")
effective as of October 13, 2000 (the "Commencement Date") and expiring on the
third anniversary of the Commencement Date, unless sooner terminated as
hereinafter set forth; provided, however, that the Term of this Agreement shall
automatically be extended from year to year under the same terms and conditions
as set forth herein unless the Company or the Executive gives written notice to
the other ninety (90) days prior to the first anniversary of the Commencement
Date of its or his intention to terminate this Agreement.
1.2 Duties of Executive. The Executive shall perform the duties of an
executive commensurate with such position, shall diligently perform all services
as may be reasonably designated by the Board, including, but not limited to,
serving as an officer or director of any subsidiary or affiliate company; and
shall exercise such power and authority as is necessary and customary to the
performance of such duties and services. The Executive will
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devote his entire time, attention and energies to the Company's business. During
his employment, the Executive will not engage in any other business activities,
regardless of whether such activity is pursued for profits, gains, or other
pecuniary advantage. However, nothing in this Agreement shall prevent the
Executive from passively investing in business activities so long as such
investments require no active participation by the Executive.
2. COMPENSATION.
2.1 Base Salary. During the Term and any extension of the Term pursuant to
Paragraph 1.1, the Executive shall receive a base salary at the annual rate of
$375,000 (the "Base Salary"). The Base Salary may, at the election of Executive,
be paid in GBPounds at any time while Executive is stationed in the UK and
locked currently at the exchange rate of $1.42 per GBPound and, therefore, the
Base Salary shall be L264,085 GBPounds, however, subject to adjustment as may be
reasonable as a result of currency fluctuation. The Base Salary shall be payable
in substantially equal installments consistent with the Company's normal payroll
schedule, subject to applicable withholding and other taxes. Notwithstanding the
above, at the discretion of the Board of Directors of the Company, the Base
Salary may be increased, but shall not be decreased, on each anniversary of the
Commencement Date during the Term and any extension of the Term.
2.2 Bonus. The Executive shall be entitled to receive a bonus in an
amount and at such time(s) during the Term as shall be
determined in the sole and absolute discretion of the
Compensation Committee of the Board of Directors of the Company.
2.3 Option Grant. The Executive shall be granted 125,000 options of
which 75,000 shall be fully vested and the balance shall vest on
the first anniversary of this agreement. The price of the
options shall be the last closing price of the stock on October
13, 2000.
3. EXPENSE REIMBURSEMENT AND OTHER BENEFITS.
3.1 Expense Reimbursement. During the Term, the Company, upon the
submission of supporting documentation by the Executive, and in accordance with
Company policies for its executives, shall reimburse the Executive for all
expenses actually paid or incurred by the Executive in the course of and
pursuant to the business of the Company, including expenses for travel,
entertainment, compute allowance, and such other expenses as approved by the
Company. Executive shall also continue to receive the quarterly non-allocable
expense payment that he has been receiving under his prior agreement in the
amount of $25,000 per quarter. The Company shall pay for or on behalf of the
Executive (a) a housing supplement in the amount of L6,500 per month in the
event that Executive is requested to move to the UK during the term of his
employment with the company (b) an additional payment such that after payment of
all income and other taxes resulting from the housing supplement, if any, are
incurred, the amount paid to the Executive shall equal L6,500.
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3.2 Other Benefits. The Company shall obtain or shall continue in
force comprehensive major medical and hospitalization insurance coverage, either
group or individual, for the Executive and his dependents, and shall obtain or
shall continue in force disability and life insurance for the Executive
(collectively, the "Policies"), which Policies the Company shall keep in effect
at its sole expense throughout the Term. The Policies to be provided by the
Company shall be on terms as determined by the Board. Within 30 days following
termination of this Agreement, at the Executive's option, the Company shall
assign to the executive all insurance policies on the life of the Executive then
owned by the Company in consideration of the payment by the Executive of the
cash surrender value, if any, and the Executive's agreement to assume the
Company liability to pay any premiums accruing thereon after the date of such
termination.
3.3 Working Facilities. The Company shall furnish the Executive with
an office, an executive assistant and such other facilities and services
suitable to his position and adequate for the performance of his duties
hereunder.
3.4 Relocation Costs. Upon termination of this Agreement, the Company
shall reimburse the Executive for all reasonable expenses actually paid or
incurred by the Executive in connection with relocating of himself and his
family to North America.
4. TERMINATION.
4.1 Termination for Cause. Notwithstanding anything contained in this
Agreement to the contrary, this Agreement may be terminated by the Company for
Cause. As used in this Agreement "Cause" shall only mean (i) subject to the
following sentences, any action or omission of the Executive which constitutes a
willful and material breach of this Agreement which is not cured or as to which
diligent attempts to cure have not commenced within 20 business days after
receipt by Executive of notice of same, (ii) fraud, embezzlement or
misappropriation as against the Company, or (iii) the conviction (from which no
appeal can be taken) of Executive for any criminal act which is a felony. Upon
any determination by the Board that Cause exists under clause (i) of the
preceding sentence, the Company shall cause a special meeting of the Board to be
called and held at a time mutually convenient to the Board and Executive, but in
no event later than 10 business days after Executive's receipt of the notice
contemplated by clause (i). Executive shall have the right to appear before such
special meeting of the Board with legal counsel of his choosing to refine any
determination of Cause specified in such notice, and any termination of
Executive's employment by reason of such Cause determination shall not be
effective until Executive is afforded such opportunity to appear. Any
termination for Cause pursuant to this Paragraph 4.1 shall be made in writing to
Executive, which notice shall set forth in detail all acts or omissions upon
which the Company is relying for such termination. The Company shall have no
further liability hereunder (other than for reimbursement for reasonable
business expenses incurred prior to the date of termination, subject, however to
the provisions of Paragraph 3.1 hereof). In addition, upon any termination
pursuant to this Paragraph 4.1, the Executive hereby agrees to resign his
position as a member of the Boards of Directors of the Company and any
subsidiary.
4.2 Disability. Notwithstanding anything to the contrary contained in
this Agreement if, during the term hereof the Executive suffers a disability (as
defined below) the
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Company shall, subject to the provisions of Paragraph 4.3 hereof, continue to
pay Executive the compensation provided in Paragraphs 2.1 and 3.2 hereof during
the period of his disability; provided, however, that, in the event Executive is
disabled for a period of more than 180 days in any 12 month period (the
"Disability Period"), the Company may, at its election, within 90 days from the
end of the Disability Period, terminate this agreement. In the event of such
termination, (a) payment of the Executive's Base Salary at the rate prevailing
on the date of termination of the Executive and fringe benefits (to the extent
permissible by applicable law) shall be continued for a period of 12 months
after such termination. As used in this Agreement, the term "disability" shall
mean the complete inability of Executive to perform his duties under this
Agreement as determined by an independent physician selected with the approval
of the Company and the Executive. Except as provided above, the Company shall
have no further liability hereunder (other than for reimbursement for reasonable
business expenses incurred prior to the date of termination, subject, however,
to the provisions of Paragraph 3.1 hereof).
4.3 Death. In the event of the death of Executive during the Term of
this Agreement, the Company shall pay to Executive's legal representative any
unpaid Base Salary accrued through the date of his death.
4.4 Termination Without Cause. The Company can terminate this
Agreement without cause at anytime upon 90 day's written notice to Executive,
provided Executive is paid his Base Salary as then in effect in substantially
equal installments consistent with the Company's normal payroll schedule,
subject to applicable withholding and other taxes, for a period of two years
from the effective date of termination (i.e. 90 days after receipt or notice).
5. FULL SETTLEMENT. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Executive or others. In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Executive under any of the provisions of this Agreement.
6. RESTRICTIVE COVENANTS.
6.1 Agreement Not to Use or Disclose Confidential/Proprietary
Information. During the Term and thereafter, the Executive promises and agrees
that he will not disclose or utilize any confidential or proprietary
information acquired during the course of service with the Company and/or its
related business entities. The Executive shall not divulge, communicate, use to
the detriment of the Company or for the benefit of any other person or persons,
or misuse in any way, any confidential or proprietary information pertaining to
the business of the Company. Any confidential or proprietary information or
data now or hereafter acquired by the Executive with respect to the business of
the Company (which shall include, but not be limited to, information concerning
the Company's financial condition, prospects, technology, customers, suppliers,
methods of doing business and promotion of the Company's products and
services) shall be deemed a valuable, special and unique asset of the Company
that is received by the Executive in confidence and as a fiduciary. For
purposes of this Agreement "Confidential and Proprietary Information" means
information disclosed to the Executive as a consequence of or through his
employment by the Company (including information conceived, originated,
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discovered or developed by the Executive) prior to or after the date hereof and
not generally known or in the public domain, about the Company or its business.
This paragraph 6.1 is effective regardless of the reason for the termination of
the Agreement and regardless of whether the Agreement is terminated by the
Executive, the Company or by its own terms. This restrictive covenant may be
assigned to and enforced by any of the Company's assignees or successors.
6.2 COMPETITION. During the Term and for a period of one year thereafter,
Executive shall not, directly or indirectly engage in or have any interest in,
directly or indirectly, any sole proprietorship, partnership, corporation,
business or any other person or entity (whether as an employee, officer,
director, partner, agent, security holder, creditor, consultant or otherwise)
that, directly or indirectly, engages primarily in the development, marketing,
distribution, underwriting or sale of products and services competitive with
the Company's and/or any subsidiary's products and services in any and all
States in which the Company and/or any subsidiary conducts its business during
the Term or at the time Executive's employment with the Company is terminated
(the "Territory"); provided, however, that Executive may hold Company securities
and/or acquire, solely as an investment, shares of capital stock or other equity
securities of any publicly traded corporation, so long as Executive does not
control, acquire a controlling interest in, or become a member of a group which
exercises direct or indirect control of, more than five percent of any class of
capital stock of such publicly traded corporation, and provided further that the
Company pays the Executive's Base Salary as then in effect for this one year
period in substantially equal installments consistent with the Company's normal
payroll schedule, subject to applicable withholding and other taxes.
6.3 NO SOLICITATION OF EMPLOYEES. During the Term and for a period of one
year thereafter, Executive shall not directly or indirectly, for himself or for
any other person, firm, corporation, partnership, association or other entity,
attempt to employ or enter into any contractual arrangement with any employee or
former employee of the Company, provided the company satisfies its obligations
under Paragraph 6.2 herein.
6.4 BOOKS AND RECORDS. All books, records, accounts and similar
repositories of Confidential and Proprietary Information of the Company, whether
prepared by the Executive or otherwise coming into the Executive's possession,
shall be the exclusive property of the Company and shall be returned immediately
to the Company on termination of this Agreement or on the Board's request at any
time.
7. INJUNCTION. It is recognized and hereby acknowledged by the parties
hereto that a breach by the Executive of any of the covenants contained in
Paragraph 6 of this Agreement will cause irreparable harm and damage to the
Company, the monetary amount of which may be virtually impossible to ascertain.
As a result, the Executive recognizes and hereby acknowledges that the Company
shall be entitled to an injunction from any court of competent jurisdiction
enjoining and restraining any violation of any or all of the covenants contained
in Paragraph 6 of this Agreement by the Executive or any of his affiliates,
associates, partners or agents, either directly or indirectly, and that such
right to injunction shall be cumulative and in addition to whatever other
remedies the Company may possess.
8. CONSOLIDATION, MERGER OR SALE OF ASSETS. Nothing in this Agreement
shall preclude the Company from consolidating or merging into or with, or
transferring all or
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substantially all of its assets to, another corporation that assumes this
Agreement and all obligations of the Company hereunder, in writing. Upon such
consolidation, merger, or transfer of assets and assumption, the term "the
Company" as used herein, shall mean such other corporation and this Agreement
shall continue in full force and effect.
9. BINDING EFFECT. Except as herein otherwise provided, this Agreement
shall inure to the benefit of and shall be binding upon the parties hereto,
their personal representatives, successors, heirs and assigns,
10. TERMINOLOGY. All personal pronouns used in this Agreement, whether
used in the masculine, feminine or neuter gender, shall include all other
genders; the singular shall include the plural and vice versa. Titles of
paragraphs are for convenience only, and neither limit nor amplify the
provisions of the Agreement itself.
11. FURTHER ASSURANCES. At any time, and from time to time, each party
will take such action as may be reasonably requested by the other party to
carry out the intent and purposes of this Agreement.
12. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof. It
supersedes all prior negotiations, letters and understandings relating to the
subject matter hereof.
13. AMENDMENT. This Agreement may not be amended, supplemented or
modified in whole or in part except by an instrument in writing signed by the
party or parties against whom enforcement of any such amendment, supplement or
modification is sought.
14. ASSIGNMENT. This Agreement may not be assigned by any party hereto
without the prior written consent of the other party and except as provided in
Paragraph 8 hereof.
15. CHOICE OF LAW. This Agreement will be interpreted, construed and
enforced in accordance with the laws of the State of New York, without giving
effect to the application of the principles pertaining to conflicts of laws.
16. EFFECT OF WAIVER. The failure of any party at any time or times to
require performance of any provision of this Agreement will in no manner affect
the right to enforce the same. The waiver by any party of any breach of any
provision of this Agreement will not be construed to be a waiver by any such
party of any succeeding breach of that provision or a waiver by such party of
any breach of any other provision.
17. CONSTRUCTION. The parties hereto and their respective legal counsel
participated in the preparation of this Agreement; therefore, this Agreement
shall be construed neither against nor in favor of any of the parties hereto,
but rather in accordance with the fair meaning thereof.
18. SEVERABILITY. The invalidity, illegality or unenforceability of any
provision or provisions of this Agreement will not affect any other provision
of this Agreement, which will remain in full force and effect, nor will the
invalidity, illegality or unenforceability of a portion of any provision of
this Agreement affect the balance of such provision. In the event
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that any one or more of the provisions contained in this Agreement or any
portion thereof shall for any reason be held to be invalid, illegal or
unenforceable in any respect, this Agreement shall be reformed, construed and
enforced as if such invalid, illegal or unenforceable provision had never been
contained herein.
19. ENFORCEMENT. Should it become necessary for any party to institute
legal action to enforce the terms and conditions of this Agreement, the
successful party will be awarded reasonable attorneys' fees at all trial and
appellate levels, expenses and costs.
20. SURVIVAL. All covenants, agreement representations and warranties
made herein or otherwise made in writing by any party pursuant hereto shall
survive the execution and delivery of this Agreement and the termination of the
employment of the Executive.
21. NO THIRD-PARTY BENEFICIARIES. No person shall be deemed to possess
any third-party beneficiary right pursuant to this Agreement. It is the intent
of the parties hereto that no direct benefit to any third party is intended or
implied by the execution of this Agreement.
22. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original.
23. NOTICE. Any notice required or permitted to be delivered hereunder
shall be deemed to be delivered when sent by facsimile with receipt confirmed
or when deposited in the United States mail, postage prepaid, registered or
certified mail, return receipt requested, or by overnight courier, addressed to
the parties at the addresses first stated herein, or to such other address as
either party hereto shall from time to time designate to the other party by
notice in writing as provided herein.
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For the purposes of this Section, Termination Without Cause shall include,
but not be limited to:
(i) Any material change of Executive's duties or obligations under
the Agreement;
(ii) The material discontinuance of the Company's operations or the
Company's dissolution, liquidation or insolvency;
(iii) The change of control of the Company, which shall include the
transfer or issuance of more than twenty five percent (25%) of the Company's
outstanding shares of common or equity securities or the aggregation of twenty
five percent (25%) or more of the Company's common stock and/or equity
securities in one shareholder or voting or control group, which does not hold
an aggregate of twenty five percent (25%) of the Company's common stock or
equity securities as of the date of this Amendment;
(iv) The Company's failure to pay Executive's Base Salary or any
other direct or indirect benefit as and when due; and
(v) Any other termination of Executive by the Company for any
reason whatsoever, regardless of any specific reasons for termination set forth
in the notice, unless specifically and directly pursuant to the termination
authorized pursuant to Sections 4.1, 4.2 or 4.3 of the Agreement.
2. INCORPORATION. Each and every other term and condition of the
Agreement is incorporated herein. In the event of a conflict or dispute between
the provisions of this Amendment and the terms of the Agreement, this Amendment
shall control.
IN WITNESS WHEREOF, this Amendment is entered into as of the date first
set forth above.
THE COMPANY
XXXXXXXXXXXXXXXXXX.XXX,INC.
By: /s/ W. XXXXXX XXXXXXX
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W. Xxxxxx Xxxxxxx, C.E.O.
EXECUTIVE
/s/ XXX X. XXXXXX
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Xxx X. Xxxxxx
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