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Exhibit 10.8
EMPLOYMENT AGREEMENT
THIS AGREEMENT, is made as of the 12th day of February, 2000
(the "Agreement"), between Asia Global Crossing Ltd., a Bermuda corporation
("AGC"), and Xxxx Xxxxxx ("Executive").
For good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, AGC and Executive hereby agree as
follows:
1. EMPLOYMENT.
Subject to the terms and conditions hereinafter contained, AGC
hereby employs Executive and Executive accepts the employment by AGC.
(a) Executive shall perform such duties and exercise such
powers in relation to the business of AGC as may from time to time be assigned
to or vested in him by the Board of Directors of AGC (the "Board") and shall at
all times and in all respects comply with the reasonable directions and
regulations made by the Board. Without limiting the foregoing, at all times
during the Term (as defined below), Executive shall hold the title of Chief
Executive Officer of AGC, shall be the most senior officer of AGC, other than
the Chairman, and shall have those powers and duties normally associated with
the position of Chief Executive Officer and such other powers and duties
consistent with such position as may be prescribed by the Board. Executive shall
be nominated as a member of the Board.
(b) Executive shall faithfully serve AGC to the utmost of
his ability and shall use his best efforts to promote the interests of AGC and
shall devote all of his time and attention during the normal working hours of
AGC (and, for no further remuneration, during such additional hours as shall be
necessary for the proper performance thereof) to the said duties, except insofar
as he has the consent of the Board in writing to do otherwise. The foregoing
shall not preclude Executive from engaging in appropriate civic, charitable or
religious activities or from devoting a reasonable amount of time to private
investments or, subject to Board approval, from serving on the boards of
directors of other entities, as long as none of such activities, investments and
service materially interfere or conflict with Executive's responsibilities to
AGC or compete, directly or indirectly, with AGC or its affiliates.
(c) Executive shall comply with such directives and
manuals as AGC may issue from time to time to its officers and executives.
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2. TERM.
Subject to the provisions of Paragraph 8 below, the term of
this Agreement (the "Term") shall be 3 years, commencing on the date on which
Executive commences employment hereunder (the "Commencement Date"), which date
shall be not later than March 6, 2000. Subject to Paragraph 8 below, the Term
and provisions of this Agreement shall automatically extend for additional
one-year periods on and after the third anniversary of the Commencement Date,
unless either party notifies the other in writing at least 6 months prior to the
applicable anniversary date that it, or he, does not want the Term to so extend.
Upon such notice of non-extension, Executive's employment hereunder shall
terminate on the close of business on the day immediately preceding the
applicable anniversary.
3. REMUNERATION.
(a) BASE SALARY. AGC agrees to pay and Executive agrees
to accept as compensation for the services rendered by Executive during his
employment hereunder an annualized salary of $500,000 ("Base Salary") less
withholding taxes and other amounts required by applicable laws, to be paid in
semi-monthly installments.
(b) GUARANTEED MINIMUM BONUS AND TARGET ANNUAL BONUS. For
the 2000 and 2001 calendar years, Executive shall receive a guaranteed minimum
annual bonus (the "Guaranteed Minimum Bonus") of $500,000 per year. After 2001,
Executive's target annual bonus ("Target Annual Bonus") shall equal 100% of Base
Salary. The Target Annual Bonus shall be paid in the sole discretion of the
Board or its designee. All payments shall be made, less withholding taxes and
other amounts required by applicable laws. The Board (or its designee) in its
sole discretion may award an annual bonus greater than the Guaranteed Minimum
Bonus or Target Annual Bonus.
(c) AGC STOCK OPTIONS. It is anticipated that AGC will
file an initial public offering ("IPO") in the near future. Subject to approval
by the Board, immediately upon such IPO, Executive shall receive options to
purchase a number of shares of AGC common stock (the "AGC Stock Options") at an
exercise price per share (the "Strike Price") determined as follows:
The number of shares of AGC common stock covered by the AGC Stock
Options shall equal 1.75% of the Shares Outstanding; provided that such
number of shares covered by such AGC Stock Options shall not in any
event exceed $175 million divided by the IPO Price.
The Strike Price shall equal the IPO Price; provided that for each $1
million by which the Market Capitalization exceeds $10 billion, the
Strike Price shall be reduced by the amount necessary to increase the
In-The-Money Value by
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$17,500. Notwithstanding the foregoing, the Strike Price shall not be
subject to further reduction once the In-The-Money Value reaches
$30,000,000.
For purposes of the foregoing:
"Shares Outstanding" shall be defined as the total number of shares
outstanding plus the number of shares issuable upon exercise,
conversion or exchange of options, rights, warrants or other securities
(collectively, "Rights") exercisable for, convertible into or
exchangeable for AGC common stock, all determined as of the
commencement of the IPO and taking into account any stock split,
dividend or other recapitalization effected or to be effected in
connection with the IPO; provided that only Rights that represent the
right to receive a share of AGC common stock for consideration less
than the IPO Price ("Dilutive Rights") shall be taken into account in
determining Shares Outstanding; and provided, further, that a Dilutive
Right shall only be deemed to increase the number of Shares Outstanding
by an amount equal to the quotient of (i) the number of shares covered
by such Dilutive Right multiplied by the amount by which the IPO Price
exceeds the exercise or conversion price of such Dilutive Right divided
by (ii) the IPO Price.
"IPO Price" shall be defined as the price per share at which shares of
AGC's common stock are initially offered on the IPO date.
"Market Capitalization" shall be defined as the Shares Outstanding
multiplied by the IPO Price.
"In-The-Money-Value" shall be defined as the number of shares covered
by the AGC Stock Options multiplied by the difference between the IPO
Price and the Strike Price.
The options shall vest and become exercisable as follows: 25%
immediately on the date of grant, 25% on the first anniversary of the
Commencement Date, 25% on the second anniversary of the Commencement Date, and
the final 25% on the day preceding the third anniversary of the Commencement
Date. The AGC Options shall become fully vested and exercisable upon a "Change
in Control," as that term shall be defined in the AGC stock option plan. In the
event the outstanding shares of common stock of AGC are changed into or
exchanged for a different number or kind of shares or other securities of AGC or
of another corporation by reason of merger, consolidation ,other reorganization,
reclassification, combination of shares, stock split-up or stock dividend, the
AGC Stock Options and Strike Price shall be adjusted appropriately. The AGC
Stock Options shall be subject to additional terms and conditions, not
inconsistent with this Agreement, as may be determined by the Board; provided,
however, that Executive's prior approval shall be required for any terms and
conditions which materially deviate from the terms and conditions of the Global
Crossing Ltd. 1998 Stock Incentive Plan (the "GCL Option Plan") and standard
form Non-Qualified Stock Option Agreement, copies of which are attached hereto
as Exhibits "A" and "B" and
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incorporated herein by reference. On or before the IPO, AGC shall take any and
all actions necessary to register with the Securities Exchange Commission the
AGC Stock Options and the shares of AGC common stock issuable to Executive upon
exercise of such options. If, in lieu of the IPO, Global Crossing Ltd. issues a
"tracking stock" (i.e., a special class of stock intended to reflect the
performance of a distinct business unit or group) in respect of the AGC
business, AGC shall take or cause to be taken all actions necessary to ensure
that Executive shall receive rights in respect of such tracking stock that are
no less favorable than the rights Executive would have received hereunder in
respect of AGC common stock if the IPO had occurred.
(d) CHANGE IN CONTROL OF GCL. In the event that, prior to
the IPO, Global Crossing Ltd. or AGC experiences a "Change in Control" (as
defined, mutatis mutandis with respect to AGC, in the GCL Option Plan) and
either (i) the IPO does not occur during the 365 days immediately following such
Change in Control; or (ii) an IPO occurs during the 365 days immediately
following such Change in Control, but the assets and business included within
AGC at the time of such IPO are substantially different than the assets and
business that, prior to the Change in Control, had been contemplated by Global
Crossing Ltd. to be included within AGC at the time of the IPO; or (iii) prior
to the IPO, Executive is terminated under circumstances constituting a
"Qualifying Termination" (as defined below), then, and in any such event,
Executive shall be entitled to a $70 million payment from the Company. A
"Qualifying Termination" shall mean the termination of Executive's employment
(x) by AGC under circumstances not constituting a Termination for Cause, (y) by
Executive under circumstances constituting a For Cause Event or (z) as a result
of Executive's death or "Disability" (as defined in Paragraph 8(c) below). Such
$70 million payment shall be due and payable on the first business day after (x)
the 365th day following the Change in Control, in the case of clause (i) above,
(y) the date of the IPO, in the case of clause (ii) above, or (z) the date of
the Qualifying Termination, in the case of clause (iii) above. In lieu of cash,
AGC (or its successor) shall have the right to arrange for such $70 million
payment to be made in shares of readily transferable, publicly traded common
stock of Global Crossing Ltd. (or its successor) valued for this purpose by
reference to its closing price on the principal securities exchange or market on
which such common stock is traded on the business day prior to the date on which
such payment becomes due. Upon satisfaction in full of AGC's payment obligation
under this Paragraph 3(d), Executive's right to receive AGC Options pursuant to
this Agreement (including without limitation, Paragraphs 3(c) and 8(g) hereof)
shall immediately terminate and be of no further force or effect.
(e) LOAN. On or before the Commencement Date, after full
execution of this Agreement by both parties and upon execution of a promissory
note (the "Promissory Note") in the form attached hereto as Exhibit "C" and
incorporated herein by reference, AGC shall make a loan to Executive in the
amount of $15 million.
4. BENEFITS.
(a) Executive shall be entitled to participate, subject
to any rules and conditions and applicable laws and regulations, in any medical,
dental, life insurance
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and/or disability insurance plan established and operated by AGC, for the
benefit of executives of AGC and their dependents. Any such plan may be changed
from time to time in the sole discretion of AGC. AGC will provide continuous
coverage during the Term.
(b) AGC shall cover Executive at AGC's expense for
workers' compensation and disability insurance as required by law.
(c) Subject to applicable terms and conditions and
applicable law, Executive shall be entitled to participate in any 401(k) savings
plan adopted by AGC.
(d) Executive shall be treated in the same manner as, and
shall be entitled to such benefits and other perquisites no less favorable than
those provided to the most senior officers of AGC.
5. VACATION.
(a) Executive shall be entitled to four weeks of paid
vacation per year. Executive shall not accrue more than four weeks paid
vacation.
(b) On termination of Executive's employment for whatever
reason, Executive shall be entitled to accrued vacation pay through the date of
termination.
6. EXPENSE REIMBURSEMENTS.
Executive shall be reimbursed for reasonable business expenses
incurred by Executive on behalf of AGC, including but not limited to, travel and
entertainment expenses, in accordance with AGC policies.
Business travel shall be by 1st class air.
7. RELOCATION.
At the Commencement Date, Executive shall commence work in the
AGC principal executive offices which are located in Los Angeles, California. It
is a condition of employment that Executive relocate to the city where the AGC
corporate offices are located. AGC shall reimburse Executive for reasonable
costs associated with relocating to AGC's corporate offices, including the
actual cost to move household goods and automobiles, one first-class one-way
airfare for Executive and his immediate family, one first-class roundtrip
airfare househunting trip for Executive's immediate family, and temporary
housing in Los Angeles through July 1, 2000.
8. TERMINATION/RESIGNATION.
Subject to the provisions below, Executive may be terminated
by AGC at any time, with or without cause. Executive may resign at any time.
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(a) TERMINATION FOR CAUSE. Actions or omissions which
will entitle AGC to terminate Executive for cause ("Termination for Cause")
shall include the following:
(i) conviction of a felony; or conviction of a
crime of moral turpitude which causes
serious economic injury or serious injury to
AGC's reputation; or
(ii) material breach of the Proprietary
Information Agreement attached hereto as
Exhibit "D" and incorporated herein by
reference; or
(iii) fraud or embezzlement; intentional
misconduct or gross negligence which has
caused serious and demonstrable injury to
AGC or its affiliates; or breach of
Xxxxxxxxx 0, 00(x) or 10(h) of this
Agreement ; or
(iv) egregious performance or failure to perform
Executive's duties as Chief Executive
Officer; provided that a failure to achieve
performance objectives shall not by itself
constitute grounds for Termination for
Cause.
Upon notice by AGC to Executive that it is terminating
Executive pursuant to a Termination for Cause, the "Termination Date" shall be
the date on which such notice is mailed or hand-delivered, or as otherwise
specified in the notice of termination, to Executive. Upon Termination for
Cause, Executive shall not be entitled to receive any further compensation or
payments hereunder (except for Base Salary relating to Executive's services
prior to the Termination Date and the Guaranteed Minimum Bonus prorated through
the Termination Date, less withholding taxes and other amounts required by
applicable laws). Upon Termination for Cause, the outstanding principal balance
(if any) on the Promissory Note shall become immediately due and payable. Any
unvested AGC Stock Options shall immediately cancel as of the Termination Date.
Vested AGC Stock Options shall be subject to the provisions of Executive's stock
option agreement and the AGC stock option plan.
(b) TERMINATION OTHER THAN FOR CAUSE. Executive may be
terminated by AGC at any time and for any (or no) reason, upon the giving of
notice by AGC to Executive of termination other than a Termination for Cause. In
such event, AGC may, in the notice of termination, discharge Executive
immediately or as of such future date, not to exceed one month, as AGC may
determine to be appropriate. In the event that Executive is terminated pursuant
to this subsection, then (i) Executive shall receive his Base Salary and
Guaranteed Minimum Bonus, less withholding taxes and other amounts required by
law, for the remainder of the Term, (ii) any outstanding principal balance on
the Promissory Note shall be forgiven effective as of the Termination Date, and
(iii) the AGC Stock Options shall become immediately vested.
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(c) DEATH OR DISABILITY. In the event Executive's
employment is terminated by AGC due to death of the Executive or due to a
disability which renders Executive unable to fulfill his duties on a full-time
basis for more than 120 days during any 12-month period (a "Disability"), then
(i) Executive or his estate shall receive the Base Salary and prorated
Guaranteed Minimum Bonus through the date of termination, (ii) any outstanding
principal balance on the Promissory Note shall be forgiven effective as of the
Termination Date, and (iii) the AGC Stock Options shall become immediately
vested.
(d) RESIGNATION. Except as provided above, events which
shall entitle Executive to resign for cause ("For Cause Event") during the Term
shall include the following:
(i) Executive is not elected or retained as CEO
of AGC and a member of the Board; or
(ii) there is a material diminution in the nature
or scope of Executive's authority, powers,
functions, duties or responsibilities; or
(iii) there is a substantial and continued
reduction in support service, staff,
secretarial assistance or office space to a
level at which Executive is unable to
perform his duties; or
(iv) AGC shall fail to grant the AGC Stock
Options as contemplated by this Agreement or
AGC shall fail to make any payments due
under this Agreement; or
(v) any assignee of AGC fails expressly to
assume all of AGC's obligations hereunder.
For a period of 60 days after the occurrence of a For Cause Event, Executive
shall have the right to deliver a notice of breach to AGC detailing the specific
For Cause Event that has occurred. In the event that AGC does not cure the
breach within 60 days after receipt of notice, then Executive shall have 30 days
to deliver notice of resignation. Upon such resignation, (i) Executive shall be
entitled to receive his Base Salary and Guaranteed Minimum Bonus, less
withholding taxes and other amounts required by laws, for the remainder of the
Term, (ii) the outstanding principal balance (if any) on the Promissory Note
shall be forgiven, and (iii) the AGC Stock Options shall become immediately
vested.
(e) RESIGNATION FROM BOARD. Upon termination of
Executive's employment with AGC for any reason, Executive shall resign as of the
Termination Date or the date of resignation from the Board and any affiliate
board of directors.
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(f) EXPIRATION OF TERM. Upon expiration of the Term
without renewal, AGC shall pay to Executive any unpaid Base Salary, any unpaid
Guaranteed Minimum Bonus and any unpaid bonus which has been earned by reason of
AGC's and Executive's performance for fiscal year 2002 according to the
performance criteria established, without regard to whether Executive's
termination of employment precedes the bonus payment date.
(g) AGC OPTIONS GRANT. In the event Executive's
employment with AGC is terminated pursuant to Paragraphs 8(b) or 8(c) prior to
the issuance of the AGC Stock Options, then the AGC Stock Options shall be
granted to Executive or his estate at the IPO, subject to all of the provisions
set forth in this Agreement. In such event, the AGC Stock Options shall be
vested and exercisable for a period of 6 months commencing on the date of the
IPO. Thereafter, any unexercised AGC Stock Options shall cancel.
9. CONFIDENTIALITY AND PROPRIETARY INFORMATION.
Executive shall comply in all respects with the terms and
conditions of the Proprietary Information Agreement.
10. MISCELLANEOUS.
(a) NOTICES. Any notice or other communications provided
for in this Agreement shall be in writing and deemed received upon receipt after
delivery by certified mail, return receipt requested, or by hand as follows: in
the case of AGC, to the Board of Directors of AGC, Attention: Chairman, at 000
Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000 or such other address at
which the office of the Chairman of AGC may be located. In the case of
Executive, 3 Regents Walk, Sunninghill, Ascot, Xxxxxxxxx XX0 0XX, Xxxxxx
Xxxxxxx, with a copy to Xxxxxxx Xxxxx, Esq. at Xxxxxxx Xxxx & Xxxxxxxxx, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000.
(b) MODIFICATION/WAIVER. No waiver or modification in
whole or in part of this Agreement, or any term or condition hereof, shall be
effective against any party unless in writing and duly signed by the parties
hereto. Any waiver or any breach of any provision hereof, or of any right or
power by any party on one or more occasions shall not be construed as a waiver
of, or a bar to, the exercise of such right or power on any other occasion or as
a waiver of any subsequent breach.
(c) SEVERABILITY. Each provision of this Agreement shall
be interpreted so as to be effective and valid under applicable law, but if any
provision of this Agreement shall be held to be prohibited by or invalid under
applicable law, such provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
of the remaining provisions of this Agreement.
(d) BINDING EFFECT; SUCCESSORS. This Agreement shall
inure to the benefit of and shall be binding upon AGC and its successors,
assigns and legal
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representatives and Executive, his heirs and legal representatives. Executive
may not assign, transfer, or otherwise dispose of this Agreement, or any of his
other rights or obligations hereunder (other than his rights to payments
hereunder, which may be transferred only by will or by the laws of descent and
distribution), without the prior written consent of AGC, and any such attempted
assignment, transfer or other disposition without such consent shall be null and
void. AGC shall be entitled to assign this Agreement, without the prior written
consent of Executive, (i) in connection with the merger or consolidation of AGC
with another unaffiliated corporation or (ii) in connection with the sale of all
or substantially all of the assets or business operations of AGC to another
person or entity, provided that such assignee expressly assumes all of the
rights and obligations of AGC hereunder. After any such assignment,, this
Agreement shall continue in full force and effect.
(e) ENTIRE AGREEMENT. This Agreement sets forth the
entire agreement between the parties hereto with respect to the subject matter
hereof, and supersedes all other agreements and understandings, written or oral,
between the parties hereto with respect to the subject matter hereof.
(f) CONTROLLING LAW. This Agreement shall be governed by,
and construed and enforced in accordance with, the laws of the State of New
York, without regard to conflict of laws.
(g) EXECUTIVE NOT OTHERWISE BOUND; AUTHORITY. Executive
represents and warrants to AGC that he is not bound by any agreement or
understanding, contractual or otherwise (including but not limited to
restrictions implied in law), that would disallow or conflict in any way with
Executive fulfilling his obligations as expressed in this Agreement, or his
entering into the employment relationship contemplated in this Agreement. AGC
represents that it has obtained all approvals, including Board approvals,
required pursuant to this Agreement and that no other agreements would prevent
or conflict with AGC entering into this Agreement. AGC acknowledges and agrees
that its obligations hereunder shall not be affected by any event (other than a
breach by Executive of the terms hereof) occurring subsequent to the execution
and delivery hereof but prior to the Commencement Date.
(h) NON-SOLICITATION. After the termination or
resignation of Executive, Executive shall not, either directly or indirectly,
expressly or impliedly, at any time during a period of two years following such
termination or resignation, solicit or encourage in any manner whatsoever (i)
the employment or engagement of, either for his own account or for any other
person or entity, any person who is employed by AGC or its affiliates, or (ii)
the business of customers or clients of AGC or its affiliates to a business
competitive with AGC or its affiliates.
(i) BINDING ARBITRATION. Any controversy arising out of
or relating to this Agreement or the breach hereof shall be settled by binding
arbitration in accordance with the Employment Dispute Resolution Rules of the
American Arbitration Association (with the exception that there will be a panel
of three arbitrators rather than a
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single arbitrator) and judgement upon the award rendered may be entered in any
court having jurisdiction thereof. Specific performance, injunctive relief and
other remedies at law and equity shall be permitted to enforce the provisions
hereof regarding confidentiality, non-solicitation, the grant of AGC Stock
Options and "Change in Control." The costs of any such arbitration proceedings
shall be borne equally by AGC and Executive. Neither party shall be entitled to
recover attorney's fee or costs expended in the course of such arbitration or
enforcement of the awarded rendered thereunder. The location for the arbitration
shall be New York City, New York.
(j) EXCISE TAX. In the event that any amounts Executive
receives or is deemed to receive under this Agreement (whether in respect of
stock options, severance or otherwise) would give rise to any excise tax under
Section 4999 of the Internal Revenue Code or any similar state or local law, AGC
shall make payment to Executive of such amounts as are necessary for Executive
to be wholly protected from the costs of any such excise tax (and any attendant
income taxes, penalties and/or interest charges).
(k) LEGAL FEES. AGC shall reimburse Executive for
reasonable legal fees and costs incurred in the negotiation and preparation of
this Agreement, up to a maximum amount of $10,000.
(l) COUNTERPARTS. This Agreement may be executed in
counterparts. Execution by facsimile shall be binding on the parties.
(m) MITIGATION AND OFFSET. Executive shall not be
required to mitigate amounts payable under this Agreement by seeking other
employment or otherwise, and there shall be no offset against amounts due
Executive under this Agreement on account of subsequent employment.
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IN WITNESS WHEREOF, AGC and Executive have executed this
Agreement as of the day and year first above written.
ASIA GLOBAL CROSSING LTD.
A BERMUDA CORPORATION
BY: /s/ Xxxx Xxxxxxx DATE: February 12, 2000
________________________
NAME: Xxxx Xxxxxxx
________________________
TITLE: Chairman
________________________
AGREED AND ACCEPTED:
/s/ XXXX XXXXXX DATE: February 12, 2000
_______________________
XXXX XXXXXX
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[Logo Omitted] ASIA GLOBAL CROSSING
Proprietary Information Agreement
February ___, 2000
____________________________________
Name
____________________________________
Address
____________________________________
City, State, Zip Code
In connection with your employment or proposed employment with Asia Global
Crossing, Ltd., (together with its affiliates, successor entities and assigns),
("AGC") you will have access to and may develop proprietary information, client
lists, technical specifications, business plans, financial statements, marketing
and sales plans and other confidential operational information. In consideration
of your continued and/or future employment by AGC and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, you
agree as follows:
1. Definition of Proprietary Information.
"Proprietary Information" includes, but is not limited to, any information,
know-how, financial information, marketing and sales information, employee
information, management information, client lists, potential client lists,
technical specifications, business plans, sales or programming matter, written
materials, compositions, drawings, diagrams, photographs, works in progress,
visual demonstrations, and other data, whether oral, written, graphic or in
electronic form, pertaining to AGC or its affiliates. Proprietary Information
does not include (i) information which is now or hereafter becomes publicly
known or available through no act or failure on the part of yourself, (ii)
information which is actually known to you at the time of the receipt of such
Proprietary Information, (iii) information which is hereafter furnished to you
by a third party, other than in the course of your employment, (iv) information
which was independently developed or known by you prior to any contact with AGC,
without use or reference to Proprietary Information, and which does not
otherwise contravene the terms of this Agreement, and (v) information which you
choose to disclose relating to your salary and any other compensation or
benefits received by you at AGC.
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2. Use of Proprietary Information.
You shall use the Proprietary Information solely in connection with the duties
assigned to you as an employee of AGC.
3. Non-Disclosure and Confidentiality of Proprietary Information.
You shall at all times keep in strictest confidence and prevent disclosure to
any person, firm, corporation or other entity the Proprietary Information unless
such disclosure is (a) necessary or appropriate as part of the business of the
company or (b) otherwise legally required to be disclosed pursuant to a court
order. You agree that money damages would not be a sufficient remedy for any
breach of this Agreement and that AGC would be irreparably harmed by any such
disclosure. Accordingly, AGC shall be entitled to specific performance and
injunctive or equitable relief as a remedy for any such breach. Such remedy
shall not be deemed to be the exclusive remedy for the breach for this
Agreement.
4. Return of Proprietary Information.
You agree that, immediately upon termination of your employment with AGC, you
shall return to AGC all Proprietary Information and reproductions of Proprietary
Information in your possession or control. Any Proprietary Information which you
may have retained electronically in your possession or control shall be expunged
or destroyed.
5. Non-Competition; No Conflict.
You agree that during your employment with AGC and for a 12-month period
thereafter, you will not engage in, directly or indirectly, any employment,
business, or activity that is or may be in any way competitive with the business
or proposed business of AGC or its affiliates at any time during the term of
your employment. You further agree that you shall not enter into any agreement,
either written or oral, which may conflict with the terms of this Agreement or
the terms of your employment at AGC.
You are expected to avoid any agreement, business investment, or other
activity that creates an actual or potential conflict of interest for you; i.e.,
any situation in which your actions or loyalties are divided between your
personal interests and our interests or between our interests and those of
another. If you are unsure whether a conflict exists, consult the Board of
Directors immediately. Prohibited activities include, but are not limited to:
(a) Owning, operating, or being employed as an employee or consultant
by any business that competes, directly or indirectly, with AGC or its
affiliates.
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(b) Having a direct or indirect financial relationship with a
competitor, customer, or supplier; however, no conflict will exist in the case
of ownership of less than 1 percent of the publicly traded stock of a
corporation.
When a conflict of interest is found to exist, the conflict may result
in discipline up to and including immediate termination of employment.
6. Prior Agreements; Successors and Assigns; Severability; Attorney Fees.
The terms of this Agreement supersede all prior agreements, whether written or
oral, between the parties hereto, and shall constitute the entire agreement
between you and AGC with respect to the matters described in this Agreement. The
terms of this Agreement shall be binding on you during the term of your
association with AGC, its successors and/or assigns, and, except for Paragraph
5, the terms of this Agreement shall be binding on you for two years thereafter.
If any provision of this Agreement is deemed to be invalid or prohibited by law,
that provision will be ineffective to the extent of the invalidity or
prohibition, without invalidating the remainder of this Agreement. In the event
of legal action relating to this Agreement, the prevailing party shall be
entitled to reasonable attorney fees and costs.
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Please indicate your agreement to be bound by the terms and provisions of this
Agreement by executing below. Thank you.
ACKNOWLEDGED AND AGREED:
___________________________ Date: _____________________, 2000
XXXX XXXXXX
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