EXHIBIT 10.13
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into on
this 8th day of September, 2001, effective as of the date set forth in paragraph
2.1 below, and is by and between Terremark Worldwide, Inc., a Delaware
corporation (the "Company"), and Xxxx Xxxxxxx (hereinafter called the
"Executive").
RECITALS
A. The Executive possesses knowledge and skills which the Company
believes will be of substantial benefit to its operations and success, and the
Company desires to employ the Executive on the terms and conditions set forth
below.
B. The Executive is willing to make his services available to the
Company on the terms and conditions set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein, the parties agree as follows:
1. Employment.
1.1 Employment and Term. The Company hereby agrees to
employ the Executive and the Executive hereby agrees to serve the Company on the
terms and conditions set forth herein.
1.2 Duties of Executive. During the Term of Employment
under this Agreement, the Executive shall serve as the Chief Financial Officer
of the Company, shall diligently perform all services as may be assigned to him
by the Board (provided that, such services shall not materially differ from the
services currently provided by the Executive), and shall exercise such power and
authority as may from time to time be delegated to him by the Board. The
Executive shall devote his full time and attention to the business and affairs
of the Company, render such services to the best of his ability, and use his
best efforts to promote the interests of the Company. It shall not be a
violation of this Agreement for the Executive to (i) serve on corporate, civic
or charitable boards or committees, (ii) deliver lectures, fulfill speaking
engagements or teach at educational institutions, or (iii) manage personal
investments, so long as such activities do not significantly interfere with the
performance of the Executive's responsibilities to the Company in accordance
with this Agreement.
2. Term.
2.1 Initial Term. The initial Term of Employment under
this Agreement, and the employment of the Executive hereunder, shall commence on
the date set forth above (the "Commencement Date") and shall expire on the date
that is twelve months after the Commencement Date, unless sooner terminated in
accordance with Section 5 hereof (the "Initial Term").
2.2 Renewal Terms. At the end of the Initial Term, the
Term of Employment automatically shall renew for successive one year terms
(subject to earlier termination as provided in
Section 5 hereof), unless the Company or the Executive delivers written notice
to the other at least one month prior to the Expiration Date of its or his
election not to renew the Term of Employment.
2.3 Term of Employment and Expiration Date. The period
during which the Executive shall be employed by the Company pursuant to the
terms of this Agreement is sometimes referred to in this Agreement as the "Term
of Employment", and the date on which the Term of Employment shall expire
(including the date on which any renewal term shall expire), is sometimes
referred to in this Agreement as the "Expiration Date".
3. Compensation.
3.1 Base Salary. The Executive shall receive a base
salary at the annual rate of $150,000.00 (the "Base Salary") during the Term of
Employment, with such Base Salary payable in installments consistent with the
Company's normal payroll schedule, subject to applicable withholding and other
taxes. The Base Salary shall be reviewed, at least annually, for merit increases
and may, by action and in the sole discretion of the Board, be increased at any
time or from time to time.
3.2 Bonuses. During the Term of Employment, the Executive
shall be eligible to receive bonuses in such amounts and at such times as the
Board shall determine in its sole discretion.
4. Expense Reimbursement and Other Benefits.
4.1 Reimbursement of Expenses. Upon the submission of
proper substantiation by the Executive, and subject to such rules and guidelines
as the Company may from time to time adopt, the Company shall reimburse the
Executive for all reasonable expenses actually paid or incurred by the Executive
during the Term of Employment in the course of and pursuant to the business of
the Company. The Executive shall account to the Company in writing for all
expenses for which reimbursement is sought and shall supply to the Company
copies of all relevant invoices, receipts or other evidence reasonably requested
by the Company.
4.2 Compensation/Benefit Programs. During the term of
Employment, the Executive shall be entitled to participate in all medical,
dental, hospitalization, accidental death and dismemberment, disability, travel
and life insurance plans, and any and all other plans as are presently and
hereinafter offered by the Company to its executives, including savings,
pension, profit-sharing and deferred compensation plans, subject to the general
eligibility and participation provisions set forth in such plans.
4.3 Working Facilities. During the Term of Employment,
the Company shall furnish the Executive with an office, secretarial help and
such other facilities and services suitable to his/her position and adequate for
the performance of his/her duties hereunder.
4.4 Stock Options. During the Term of Employment, the
Executive shall be eligible to be granted options (the "Stock Options") to
purchase common stock (the "Common Stock") of the Company under (and therefore
subject to all terms and conditions of) the Company's 2000 Stock Option Plan, as
amended, and any successor plan thereto (the "Stock Option Plan") and all rules
of regulation of the Securities and Exchange Commission applicable to stock
option plans then in effect. The number of Stock Options and terms and
conditions of the Stock Options shall be determined by the Committee appointed
pursuant to the Stock Option Plan, or by the Board of Directors of the Company,
in its sole discretion and pursuant to the Stock Option Plan. Notwithstanding
the forgoing, the Company agrees to request its Board of Directors to issue to
the Executive 100,000 options for TWW common stock with a
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market strike price, vesting 1/3, 1/3, 1/3 after one year, two years and three
years, respectively. If the unlikely event the Board refuses to do so, the
Executive may, at his option, immediately terminate this Agreement by written
notice to the Company.
4.5 Other Benefits. The Executive shall be entitled to
three weeks of vacation each calendar year during the Term of Employment,
(subject to the general eligibility provisions set forth in Company's personnel
policy), to be taken at such times as the Executive and the Company shall
mutually determine and provided that no vacation time shall interfere with the
duties required to be rendered by the Executive hereunder. Any vacation time not
taken by Executive during any calendar year may not be carried forward into any
succeeding calendar year. The Executive shall receive such additional benefits,
if any, as the Board of the Company shall from time to time determine.
5. Termination.
5.1 Termination for Cause. The Company shall at all times
have the right, upon written notice to the Executive, to terminate the Term of
Employment, for Cause. For purposes of this Agreement, the term "Cause" shall
mean (i) an action or omission of the Executive which constitutes a willful and
material breach of, or failure or refusal (other than by reason of his
disability) to perform his duties under, this Agreement which is not cured
within fifteen (15) days after receipt by the Executive of written notice of
same, (ii) fraud, embezzlement, misappropriation of funds or breach of trust in
connection with his services hereunder, (iii) conviction of a felony or any
other crime which involves dishonesty or a breach of trust, or (iv) gross
negligence in connection with the performance of the Executive's duties
hereunder, which is not cured within fifteen (15) days after written receipt by
the Executive of written notice of same. Any termination for Cause shall be made
in writing to the Executive, which notice shall set forth in detail all acts or
omissions upon which the Company is relying for such termination. The Executive
shall have the right to address the Board regarding the acts set forth in the
notice of termination. Upon any termination pursuant to this Section 5.1, the
Company shall only be obligated to pay to the Executive his Base Salary to the
date of 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 Section 4.1).
5.2 Disability. The Company shall at all times have the
right, upon written notice to the Executive, to terminate the Term of
Employment, if the Executive shall become entitled to benefits under the
Company's group disability policy or any individual disability policy then in
effect, or, if the Executive shall as the result of mental or physical
incapacity, illness or disability, become unable to perform his obligations
hereunder for a period of 90 days in any 12-month period. The Company shall have
sole discretion based upon competent medical advice to determine whether the
Executive continues to be disabled. Upon any termination pursuant to this
Section 5.2, the Company shall (i) pay to the Executive any unpaid Base Salary
through the effective date of termination specified in such notice, (ii) pay to
the Executive a severance payment equal to one month of the Executive's Base
Salary at the time of the termination of the Executive's employment with the
Company. 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 Section 4.1).
5.3 Death. Upon the death of the Executive during the
Term of Employment, the Company shall pay to the estate of the deceased
Executive any unpaid Base Salary through the Executive's date of death. The
Company shall have no further liability hereunder (other than for reimbursement
for reasonable business expenses incurred prior to the date of the Executive's
death, subject, however to the provisions of Section 4.1).
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5.4 Termination Without Cause. At any time the Company
shall have the right to terminate the Term of Employment by written notice to
the Executive. Upon any termination pursuant to this Section 5.4 (that is not a
termination under any of Sections 5.1, 5.2, 5.3, 5.5 or 5.6), the Company shall
(i) pay to the Executive any unpaid Base Salary through the effective date of
termination specified in such notice, (ii) continue to pay the Executive's Base
Salary for a period (the " Continuation Period") through the date on which the
Term of Employment would have ended pursuant to Section 2 hereof in the absence
of an earlier termination pursuant to this Section 5 but in no event for more
than six (6) months from notice of termination hereunder, provided, however,
Executive shall have been employed by Company for a period of at least ninety
(90) days to be eligible for such payment, (iii) continue to provide the
Executive with the benefits he/she was receiving under Sections 4.2 and 4.4
hereof (the "Benefits") through the end of the Continuation Period in the manner
and at such times as the Incentive Compensation or Benefits otherwise would have
been payable or provided to the Executive, provided, however, Executive shall
have been employed by Company for a period of at least ninety (90) days to be
eligible for such Benefits or payment of the cash value of such Benefits, as set
forth below. In the event that the Company is unable to provide the Executive
with any Benefits required hereunder by reason of the termination of the
Executive's employment pursuant to this Section 5.4, then the Company shall pay
the Executive cash equal to the value of the Benefit that otherwise would have
accrued for the Executive's benefit under the plan, for the period during which
such Benefits could not be provided under the plans. The Company's good faith
determination of the amount that would have been contributed or the value of any
Benefits that would have accrued under any plan shall be binding and conclusive
on the Executive. For this purpose, the Company may use as the value of any
Benefit the cost to the Company of providing that Benefit to the Executive.
Further, the vesting of the Executive's Stock Options, if any, shall be subject
to the terms of the Stock Option Plan. The Company shall have no further
liability hereunder (other than for (x) reimbursement for reasonable business
expenses incurred prior to the date of termination, subject, however, to the
provisions of Section 4.1, and (y) payment of compensation for unused vacation
days that have accumulated during the calendar year in which such termination
occurs). For all purposes under this Agreement, the failure by Company to offer
to renew the Agreement following the expiration of the Initial Term or any
Renewal Term on the same terms and conditions hereunder shall be treated as if
the Company terminated this Agreement pursuant to this Section 5.4.
5.5 Termination by Executive.
(a) The Executive shall at all times have the
right, upon sixty (60) days written notice to the Company, to terminate the Term
of Employment.
(b) Upon termination of the Term of Employment
pursuant to this Section 5.5 (that is not a termination under Section 5.6) by
the Executive without Good Reason, the Company shall pay to the Executive any
unpaid Base Salary through the effective date of termination specified in such
notice. 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 Section 4.1). At the
Company's sole option, upon receipt of notice from the Executive pursuant to
this Section, the Company may immediately terminate the Term of Employment, in
which case, in addition to the covenants set forth above, the Company shall pay
the Executive 60 days of Base Salary. For all purposes under this Agreement, the
failure by Executive to offer to renew the Agreement following the expiration of
the Initial Term or any Renewal Term on the same terms and conditions hereunder
shall be treated as if the Executive terminated this Agreement pursuant to this
Section 5.5, except that the Executive shall not be entitled to any Base Salary
in excess of that which is due through the last day of Executive's employment
hereunder.
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(c) Upon termination of the Term of Employment
pursuant to this Section 5.5 (that is not a termination under Section 5.6) by
the Executive for Good Reason, the Company shall pay to the Executive the same
amounts that would have been payable by the Company to the Executive under
Section 5.4 of this Agreement if the Term of Employment had been terminated by
the Company without Cause. The Company shall have no further liability
hereunder.
(d) For purposes of this Agreement, "Good
Reason" shall mean (i) the assignment to the Executive of any duties or
responsibilities inconsistent in any respect with the Executive's position or a
similar position in the Company or one of its subsidiaries, as contemplated by
Section 1.2 of this Agreement, or any other action by the Company which results
in a substantial and compelling diminution in such position, authority, duties
or responsibilities, excluding for this purpose an isolated, insubstantial and
inadvertent action not taken in bad faith and which is remedied by the Company
promptly after receipt of notice thereof given by the Executive; (ii) any
failure by the Company to comply with any of the provisions of Article 3 of this
Agreement, other than an isolated, insubstantial and inadvertent failure not
occurring in bad faith and which is remedied by the Company promptly after
receipt of notice thereof given by the Executive; (iii) the Company's requiring
the Executive to be based at any office or location outside of the area for
which Executive was originally hired to work except for travel reasonably
required in the performance of the Executive's responsibilities. For purposes of
this Section 5.5(d), any good faith determination of "Good Reason" made by the
Board shall be conclusive.
5.6 Change in Control of the Company.
(a) In the event that (i) a Change in Control
(as defined in paragraph (b) of this Section 5.6) in the Company shall occur
during the Term of Employment, and (ii) prior to the later of the Expiration
Date or one year after the date of the Change in Control, either (x) the Term of
Employment is terminated by the Company without Cause, pursuant to Section 5.4
hereof or (y) the Executive terminates the Term of Employment for Good Reason
the Company shall (1) pay to the Executive any unpaid Base Salary through the
effective date of termination, (2) pay to the Executive as a single lump sum
payment, within 30 days of the termination of his employment hereunder, a lump
sum payment equal to the sum of (x) two times the sum of Executive's annual Base
Salary, Incentive Compensation, and the value of the annual fringe benefits
(based upon their cost to the Company) required to be provided to the Executive
under Sections 4.2 and 4.4 hereof, for the year immediately preceding the year
in which his employment terminates, plus (y) the value of the portion of his
benefits under any savings, pension, profit sharing or deferred compensation
plans that are forfeited under those plans by reason of the termination of his
employment hereunder. The Company shall have no further liability hereunder
(other than for (1) reimbursement for reasonable business expenses incurred
prior to the date of termination, subject, however, to the provisions of Section
4.1, and (2) payment of compensation for unused vacation days that have
accumulated during the calendar year in which such termination occurs).
(b) For purposes of this Agreement, the term
"Change in Control" shall mean:
(i) Approval by the shareholders of the
Company of (x) a reorganization, merger, consolidation or other form of
corporate transaction or series of transactions, in each case, with respect to
which persons who were the shareholders of the Company immediately prior to such
reorganization, merger or consolidation or other transaction do not, immediately
thereafter, own more than 50% of the combined voting power entitled to vote
generally in the election of directors of the reorganized, merged or
consolidated company's then outstanding voting securities, in substantially the
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same proportions as their ownership immediately prior to such reorganization,
merger, consolidation or other transaction, or (y) a liquidation or dissolution
of the Company or (z) the sale of all or substantially all of the assets of the
Company (unless such reorganization, merger, consolidation or other corporate
transaction, liquidation, dissolution or sale is subsequently abandoned);
(ii) the acquisition (other than from
the Company) by any person, entity or "group", within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act, of more than 30% of either
the then outstanding shares of the Company's Common Stock or the combined voting
power of the Company's then outstanding voting securities entitled to vote
generally in the election of directors (hereinafter referred to as the ownership
of a "Controlling Interest") excluding, for this purpose, any acquisitions by
(1) the Company or its Subsidiaries, (2) any person, entity or "group" that as
of the Commencement Date of this Agreement owns beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Securities Exchange Act) of a
Controlling Interest or (3) any employee benefit plan of the Company or its
Subsidiaries.
(iii) The resignation of Xxxxxx X. Xxxxxx
as both Chairman and CEO of the Company, his death, or his absence from the day
to day business affairs of the Company for more than 90 consecutive days due to
disability or incapacity.
5.7 Resignation. Upon any notice or termination of
employment pursuant to this Article 5, the Executive shall automatically and
without further action be deemed to have resigned as an officer, and if he or
she was then serving as a director of the Company, as a director, and if
required by the Board, the Executive hereby agrees to immediately execute a
resignation letter to the Board.
5.8 Survival. The provisions of this Article 5 shall
survive the termination of this Agreement, as applicable.
6. Restrictive Covenants.
6.1 Non-competition. At all times while the Executive is
employed by the Company and for a one year period after the termination of the
Executive's employment with the Company for any reason (other than by the
Company without Cause (as defined in Section 5.1 hereof) or by the Executive for
Good Reason (as defined in Section 5.5(d) hereof)), the Executive shall not,
directly or indirectly, engage in or have any interest in any sole
proprietorship, partnership, corporation or 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 (or
through any affiliated entity) engages in competition with the Company (based on
the business in which the Company was engaged or was actively planning on being
engaged as of the date of termination of the Executive's employment and in the
geographic areas in which the Company operated or was actively planning on
operating as of date of termination of the Executive's employment); provided
that such provision shall not apply to the Executive's ownership of: Common
Stock of the Company or the acquisition by the Executive, solely as an
investment, of securities of any issuer that is registered under Section 12(b)
or 12(g) of the Securities Exchange Act of 1934, as amended, and that are listed
or admitted for trading on any United States national securities exchange or
that are quoted on the National Association of Securities Dealers Automated
Quotations System, or any similar system or automated dissemination of
quotations of securities prices in common use, so long as the Executive does not
control, acquire a controlling interest in or become a member of a group which
exercises direct or indirect control or, more than five percent of any class of
capital stock of such corporation.
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6.2 Nondisclosure. The Executive shall not at any time
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 Information
(as hereinafter defined) pertaining to the business of the Company. Any
Confidential 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, sources of leads and methods of doing
business) shall be deemed a valuable, special and unique asset of the Company
that is received by the Executive in confidence and as a fiduciary, and
Executive shall remain a fiduciary to the Company with respect to all of such
information. For purposes of this Agreement, "Confidential Information" means
information disclosed to the Executive or known by the Executive as a
consequence of or through his employment by the Company (including information
conceived, originated, discovered or developed by the Executive) prior to or
after the date hereof, and not generally known, about the Company or its
business. Notwithstanding the foregoing, nothing herein shall be deemed to
restrict the Executive from disclosing Confidential Information to the extent
required by law.
6.3 Nonsolicitation of Employees and Clients. At all
times while the Executive is employed by the Company and for a two (2) year
period after the termination of the Executive's employment with the Company for
any reason, the Executive shall not, directly or indirectly, for himself or for
any other person, firm, corporation, partnership, association or other entity
(a) employ or attempt to employ or enter into any contractual arrangement with
any employee or former employee of the Company, unless such employee or former
employee has not been employed by the Company for a period in excess of six
months, and/or (b) call on or solicit any of the actual or targeted prospective
clients of the Company on behalf of any person or entity in connection with any
business competitive with the business of the Company, nor shall the Executive
make known the names and addresses of such clients or any information relating
in any manner to the Company's trade or business relationships with such
customers, other than in connection with the performance of Executive's duties
under this Agreement.
6.4 Ownership of Developments. All copyrights, patents,
trade secrets, or other intellectual property rights associated with any ideas,
concepts, techniques, inventions, processes, or works of authorship developed or
created by Executive during the course of performing work for the Company or its
clients (collectively, the "Work Product") shall belong exclusively to the
Company and shall, to the extent possible, be considered a work made by the
Executive for hire for the Company within the meaning of Title 17 of the United
States Code. To the extent the Work Product may not be considered work made by
the Executive for hire for the Company, the Executive agrees to assign, and
automatically assign at the time of creation of the Work Product, without any
requirement of further consideration, any right, title, or interest the
Executive may have in such Work Product. Upon the request of the Company, the
Executive shall take such further actions, including execution and delivery of
instruments of conveyance, as may be appropriate to give full and proper effect
to such assignment.
6.5 Books and Records. All books, records, and accounts
relating in any manner to the customers or clients 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 the Executive's employment hereunder or on the
Company's request at any time.
6.6 Definition of Company. Solely for purposes of this
Article 6, the term "Company" also shall include any existing or future
subsidiaries of the Company that are operating during the time periods described
herein and any other entities that directly or indirectly, through one or
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more intermediaries, control, are controlled by or are under common control with
the Company during the periods described herein.
6.7 Acknowledgment by Executive. The Executive
acknowledges and confirms that (a) the restrictive covenants contained in this
Article 6 are reasonably necessary to protect the legitimate business interests
of the Company, and (b) the restrictions contained in this Article 6 (including
without limitation the length of the term of the provisions of this Article 6)
are not overbroad, overlong, or unfair and are not the result of overreaching,
duress or coercion of any kind. The Executive further acknowledges and confirms
that his full, uninhibited and faithful observance of each of the covenants
contained in this Article 6 will not cause him any undue hardship, financial or
otherwise, and that enforcement of each of the covenants contained herein will
not impair his ability to obtain employment commensurate with his abilities and
on terms fully acceptable to him or otherwise to obtain income required for the
comfortable support of him and his family and the satisfaction of the needs of
his creditors. The Executive acknowledges and confirms that his special
knowledge of the business of the Company is such as would cause the Company
serious injury or loss if he were to use such ability and knowledge to the
benefit of a competitor or were to compete with the Company in violation of the
terms of this Article 6. The Executive further acknowledges that the
restrictions contained in this Article 6 are intended to be, and shall be, for
the benefit of and shall be enforceable by, the Company's successors and
assigns.
6.8 Reformation by Court. In the event that a court of
competent jurisdiction shall determine that any provision of this Article 6 is
invalid or more restrictive than permitted under the governing law of such
jurisdiction, then only as to enforcement of this Article 6 within the
jurisdiction of such court, such provision shall be interpreted and enforced as
if it provided for the maximum restriction permitted under such governing law.
6.9 Extension of Time. If the Executive shall be in
violation of any provision of this Article 6, then each time limitation set
forth in this Article 6 shall be extended for a period of time equal to the
period of time during which such violation or violations occur. If the Company
seeks injunctive relief from such violation in any court, then the covenants set
forth in this Article 6 shall be extended for a period of time equal to the
pendency of such proceeding including all appeals by the Executive.
6.10 Survival. The provisions of this Article 6 shall
survive the termination of this Agreement, as applicable.
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 Article 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 Article 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. Assignment. Neither party shall have the right to assign or
delegate his rights or obligations hereunder, or any portion thereof, to any
other person.
9. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida.
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10. Section 162(m) Limits. Notwithstanding any other provision of
this Agreement to the contrary, if and to the extent that any remuneration
payable by the Company to the Executive for any year would exceed the maximum
amount of remuneration that the Company may deduct for that year under Section
162(m) ("Section 162(m)") of the Internal Revenue Code of 1986, as amended (the
"Code"), payment of the portion of the remuneration for that year that would not
be so deductible under Section 162(m) shall, in the sole discretion of the
Board, be deferred and become payable at such time or times as the Board
determines that it first would be deductible by the Company under Section
162(m), with interest at the "short-term applicable rate" as such term is
defined in Section 1274(d) of the Code. The limitation set forth under this
Section 10 shall not apply with respect to any amounts payable to the Executive
pursuant to Article 5 hereof.
11. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and, upon its effectiveness, shall supersede all prior agreements,
understandings and arrangements, both oral and written, between the Executive
and the Company (or any of its affiliates) with respect to such subject matter.
This Agreement may not be modified in any way unless by a written instrument
signed by both the Company and the Executive.
12. Notices: All notices required or permitted to be given
hereunder shall be in writing and shall be personally delivered by courier, sent
by registered or certified mail, return receipt requested or sent by confirmed
facsimile transmission addressed as set forth herein. Notices personally
delivered, sent by facsimile or sent by overnight courier shall be deemed given
on the date of delivery and notices mailed in accordance with the foregoing
shall be deemed given upon the earlier of receipt by the addressee, as evidenced
by the return receipt thereof, or three (3) days after deposit in the U.S. mail.
Notice shall be sent (i) if to the Company, addressed to Terremark Worldwide,
Inc., 0000 X. Xxxxxxxx Xxxxx, 0xx Xxxxx, Xxxxx, Xxxxxxx 00000, Attn: Xxxxx X.
Xxxxxxxx, Executive Vice-President and Chief Operating Officer, and (ii) if to
the Executive, to his address as reflected on the payroll records of the
Company, or to such other address as either party hereto may from time to time
give notice of to the other.
13. Benefits; Binding Effect. This Agreement shall be for the
benefit of and binding upon the parties hereto and their respective heirs,
personal representatives, legal representatives, successors and, where
applicable, assigns, including, without limitation, any successor to the
Company, whether by merger, consolidation, sale of stock, sale of assets or
otherwise.
14. Severability. The invalidity of any one or more of the words,
phrases, sentences, clauses or sections contained in this Agreement shall not
affect the enforceability of the remaining portions of this Agreement or any
part thereof, all of which are inserted conditionally on their being valid in
law, and, in the event that any one or more of the words, phrases, sentences,
clauses or sections contained in this Agreement shall be declared invalid, this
Agreement shall be construed as if such invalid word or words, phrase or
phrases, sentence or sentences, clause or clauses, or section or sections had
not been inserted. If such invalidity is caused by length of time or size of
area, or both, the otherwise invalid provision will be considered to be reduced
to a period or area which would cure such invalidity.
15. Waivers. The waiver by either party hereto of a breach or
violation of any term or provision of this Agreement shall not operate nor be
construed as a waiver of any subsequent breach or violation.
16. Damages. Nothing contained herein shall be construed to
prevent the Company or the Executive from seeking and recovering from the other
damages sustained by either or both of them as a result of its or his breach of
any term or provision of this Agreement. In the event that either party hereto
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brings suit for the collection of any damages resulting from, or the injunction
of any action constituting, a breach of any of the terms or provisions of this
Agreement, then the party found to be at fault shall pay all reasonable court
costs and attorneys' fees of the other.
17. Section Headings. The section headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
18. No Third Party Beneficiary. Nothing expressed or implied in
this Agreement is intended, or shall be construed, to confer upon or give any
person other than the Company, the parties hereto and their respective heirs,
personal representatives, legal representatives, successors and assigns, any
rights or remedies under or by reason of this Agreement.
19. Indemnification. The indemnification obligations of the
Company to Executive shall be in accordance with the Company's standard
indemnity agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
COMPANY:
Terremark Worldwide, Inc
--------------------------------
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
EXECUTIVE:
/s/ Xxxx Xxxxxxx
--------------------------------
Name: Xxxx Xxxxxxx
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