Exhibit 10.1
DATED as of April 1, 2006
EMPLOYMENT AGREEMENT
METROMEDIA INTERNATIONAL
TELECOMMUNICATIONS SERVICES, INC.
AND
XXXXX XXX
DATED AS OF April 1, 2006
PARTIES
(1) Metromedia International Telecommunications Services, Inc., a Delaware
corporation, with its principal office at 0000 Xxxxx Xxxxx Xxxxx,
Xxxxxxxxx, XX 00000 (the "Company"); and
(2) Xxxxx Xxx, a citizen of the United Kingdom, residing at Copper Beeches
Xxxxx Xxxx, Xxxxxx, Xxxxxxx XX0 0XX, passport (0) 000000000 (the
"Employee").
INTERPRETATION
(1) In this Agreement, unless the context otherwise requires, the following
terms shall have the meanings set out below:
the Board the board of directors of the Company or the
board of directors of Metromedia International
Group, Inc., as the case may be (including any
committee of the Board);
the Commencement Date April 1, 2006;
Confidential Information shall have the meaning given in Section 7.2;
Designated Company shall have the meaning given in Section 1.3;
Documents documents, disks, memory, notebooks, tapes or
any other medium, whether or not eye-readable,
on which information may from time to time be
recorded;
Group Company the Company and any company which directly or
indirectly controls, is controlled by, or is
under common control with the Company, including
without limitation, Metromedia International
Group, Inc., Metromedia International
Telecommunications Inc. ("MITI"), Metromedia
Georgia Holdings, Inc., and any of their
respective affiliates or subsidiaries;
Inventions shall have the meaning given in Section 8.2;
Key Employee any individual who is (or was in the 12 months
period prior to the Termination Date) employed
in either (a) an executive or management
capacity; or (b) a capacity in which he or she
has access to or obtained confidential
information, but (for the avoidance of doubt)
not including any employee whose duties are
purely administrative or clerical or who is
employed in a support capacity;
MIG Metromedia International Group, Inc.;
Net Salary shall mean the salary received by the Employee
pursuant to an employment agreement with an
individual Group Company or Designated Company
less any withholding taxes or other items
required to be deducted by such Group Company or
Designated Company pursuant to the laws of the
country in which he is rendering services. The
Employee hereby consents to the making of all
such deductions and agrees to repay to the
Company and/or any other Group Company or
Designated Company as applicable, promptly upon
demand any amount which the Company or such
other Group Company or Designated Company, as
the case may be, failed for any reason
whatsoever to deduct from any payment made to
the Employee;
Permitted Interest an interest in (i) any class of shares or other
securities of any company which are traded on a
recognized stock exchange which amounts to not
more than five percent of such class of issued
shares or securities or (ii) any regulated
mutual fund or authorized unit trust;
Place of Employment shall have the meaning given in Section 1.2;
Pre-Termination Period the period of six months immediately preceding
the Termination Date;
Prior Inventions shall have the meaning given in Section 8.1;
Supervisor the Chief Executive Officer of Metromedia
International Group, Inc.;
Term shall mean the term of this Agreement;
Termination Date the date of termination or expiration of this
Agreement howsoever occurring.
(2) The expressions "subsidiary" and "affiliate" have the meanings given to
them under the laws of the State of New York.
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(3) References to any legislation are to be construed as referring also to any
enactment or re-enactment thereof (whether before or after the date hereof)
and to any previous enactment which such enactment has replaced (with or
without amendment provided that the amendment does not change the law as at
the date hereof) and to any regulation or order made thereunder.
OPERATIVE PROVISIONS
1 Title, Job Description, etc.
1.1 The Company shall employ the Employee and the Employee shall serve the
Company as its Vice President of Georgian Operations with the immediate and
exclusive duty being to serve as General Director of Magticom, Ltd. The
Company reserves the right to change the Employee's title and duties from
time to time.
1.2 The Employee shall be principally based at the offices of Magticom Ltd., a
subsidiary of Metromedia Georgia Holdings, Inc. located in Tbilisi, Georgia
("Place of Employment") but shall be required to attend and work at any
location (whether within or outside the Commonwealth of Independent States
or the United States) on a temporary basis as reasonably required of him
from time to time.
1.3 The Company may require the Employee to enter into one or more separate
employment agreements with individual Group Companies, where this is
necessary to enable the Employee to more effectively perform services for
such Group Company (any such company a "Designated Company"). In the event
of any conflict between the terms of this Agreement and any such other
agreement, this Agreement shall control.
1.4 The hours of work of the Employee are not fixed but are the usual working
hours at the location at which the Employee is principally based or, if
applicable, at which he may be working and such additional hours as may be
necessary to enable him to properly discharge his duties.
1.5 The terms of this Agreement shall include and the Employee shall be bound
by the MIG Corporate Policies Handbook, as it may be amended or
supplemented from time to time, except to the extent inconsistent with this
Agreement. In the event of any inconsistency between the terms of such
Corporate Policies and this Agreement, the terms of this Agreement shall
govern.
1.6 The Employee hereby acknowledges that, because his compensation is
calculated based on the U.S. Dollar, it is not subject to indexation, cost
of living, exchange rate or any such other adjustments.
1.7 The Employee represents and warrants that he is not a party to any
agreement, contract (whether of employment or otherwise) or understanding
which would in any way restrict or prohibit the Employee from entering into
this Agreement or performing any of his duties in accordance with this
Agreement.
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2 Period of Engagement
2.1 The Term shall commence on the Commencement Date and will continue until
terminated: (i) by either party giving to the other not less than one
month's notice in writing or (ii) pursuant to the provisions of Section
12.1 hereof. If the Employee gives notice under this Agreement, he must
also simultaneously give notice to and terminate his employment
relationship with any other Group Company with which he has signed an
employment agreement.
2.2 Neither the Company nor any other Group Company shall be obliged to provide
work for the Employee at any time after notice of termination of this
Agreement shall have been given by (i) either Party pursuant to Section 2.1
or (ii) the Company pursuant to Section 12.1, and, in the event such notice
is given, the Company may, in its discretion, take any one or more of the
following steps:
(a) require the Employee to comply with such conditions as it may
specify in relation to remaining at, or remaining away from, the
place(s) of business of the Company or any other Group Company;
(b) assign the Employee to other duties; or
(c) withdraw any powers vested in, or duties assigned to, the
Employee.
3 Duties
3.1 During the term of this Agreement, in addition to the specific assignments
set forth in Schedule I hereto, the Employee shall have the following
duties and obligations:
(a) to serve the Company and other Group Companies by performing such
services and carrying out such duties as may be assigned to him from
time to time by his Supervisor;
(b) to use his best endeavors at all times to represent the Company
and other Group Companies and to promote the interests and welfare and
maintain the goodwill of the Company and other Group Companies, and
not to do, and to exercise all reasonable endeavors to prevent there
being done, anything which may be prejudicial or detrimental to the
Company or any other Group Company;
(c) to faithfully and diligently perform his duties and to exercise
and carry out such powers and functions as may from time to time be
vested in him;
(d) to devote the whole of his working time and the full benefit of
his professional knowledge, expertise and skills to the proper
performance of his duties (unless on vacation as permitted by this
Agreement or prevented by ill health or accident);
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(e) to give (in writing if so requested) to his Supervisor or such
other person(s) as may be notified to him, such reports, information
and explanations regarding (i) the affairs of the Company and/or any
other Group Company, or (ii) other matters relating to this Agreement
as may be usual or may be specifically required of him; and
(f) to comply with (i) any applicable Company policy relating to
dealings in securities of the Company or securities of any other Group
Company, (ii) all applicable rules and regulations from time to time
laid down by the Company concerning its employees generally with
prospective effect only, and (iii) all lawful directions given to him
from time to time by the his Supervisor or the Board.
3.2 Subject to the provisions of Section 3.1, the Employee shall have such
powers and responsibilities in conducting the business of the Company
and/or any other Group Company in the ordinary course as may from time to
time be delegated to the Employee. These powers and responsibilities may be
changed or withdrawn from time to time and such changes shall be
immediately communicated to the Employee.
4 Salary, Benefits, Expenses and Foreign Allowance
4.1 The Company shall pay the Employee for the proper performance of his duties
during the term of this Agreement a monthly salary of $19,166.67 ($230,000
on an annualized basis) (the "Salary"), adjusted as set forth in this
Section 4.1. Any Net Salary or other compensation, including compensation
as a director, that the Employee receives from any other Group Company or
Designated Company, including but not limited to Magticom, Ltd., with which
the Employee enters into an employment agreement as contemplated by Section
1.4, will be offset against the Salary receivable under this Agreement,
thereby reducing the Salary payable under this Agreement by the amount
received from such other Group Company or Designated Company.
Notwithstanding the foregoing, performance bonuses, if any, paid by
Magticom Ltd. to the Employee pursuant to an employment agreement between
the Employee and Magticom Ltd. will not be offset against Salary.
If the Company gives notice to the Employee under Section 2.1 other than
for an event described in Section 12.1, the Company or MITI will pay the
Employee severance in the amount of US $230,000 offset for any severance
paid to the Employee by Magticom Ltd. or any other Group Company or
Designated Company in connection with the simultaneous termination of his
employment agreement with Magticom Ltd. or such Group Company or Designated
Company, as the case may be.
4.2 The Salary will:
(a) be payable in equal monthly installments in arrears by not later
than the last working day of each month;
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(b) be payable in lieu of any other fees or remuneration of any
description which the Employee might be entitled to (or may in
fact receive) from the Company (and the Employee shall, at the
discretion of the Board, either waive his right to any such fees
or remuneration or deliver the same to the Company forthwith upon
receipt); and
(c) be subject to set-off by the Company from time to time in respect
of any liability of the Employee to the Company or any other
Group Company.
4.3 All payments to the Employee hereunder shall be subject to deduction for
withholding taxes or other items required to be deducted by an employer
pursuant to the laws of the country of which the Employee is a citizen or
resident and/or in which he is rendering services, as applicable. The
Employee hereby consents to the making of all such deductions and agrees to
repay to the Company and/or any other Group Company as applicable, promptly
upon demand any amount which the Company or such other Group Company, as
the case may be, failed for any reason whatsoever to deduct from any
payment made to the Employee.
4.4 The Employee shall be promptly reimbursed for all necessary and reasonable
business expenses he incurs in the performance of his duties hereunder,
including, without limitation, all business travel-related expenses.
4.5 The Employee shall be eligible to receive awards of stock options under an
incentive stock option plan of MIG as may be determined by the Board of
MIG.
4.6 Except for the payment of Salary as described in Section 4.1, the
participation in the stock option plan as described in Section 4.6, the
payment of foreign living expenses as described in this Section 4.7 and the
payment of relocation expenses as described in Section 4.8 below, the
Employee shall not be entitled to any other compensation or benefits from
the Company during the term of this Agreement, including benefits that are
available to other employees of the Company or MITI. For any period during
the Term that the Company requires the Employee to be domiciled in Tbilisi,
Georgia, Company shall:
(a) shall pay the employee the amount of $1,500 per month to cover
the Employee's housing and other foreign living expenses;
(b) shall reimburse the Employee, upon presentation of appropriate
documentation, for the Employee's medical insurance, provided
that such reimbursement shall not materially exceed the cost
incurred by the Company for providing similar medical insurance;
(c) shall reimburse the Employee once every three months of his
employment hereunder, upon presentation of appropriate
documentation, for one round-trip coach class airline ticket
between Tbilisi and London.
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4.7 The Company shall not reimburse any expenses of the Employee in connection
with his relocation from Tbilisi, Georgia upon expiration of the Term of
this Agreement however occurring.
4.8 During the Term, the Company shall pay or otherwise offset the Employee's
personal tax obligations in respect of Salary and other compensation
payable hereunder in Georgia, plus the costs of making any tax filings and
returns of Georgia. To effect the foregoing provision, the Company shall at
its expense retain a tax specialist qualified in Georgian taxes to prepare
and file the Employee's Georgian tax return. The Company shall promptly pay
when due all actual Georgian taxes due from the Employee for Salary and all
other compensation hereunder, including tax payments made to or on behalf
of the Employee; provided, however, that the Company shall not be required
to pay any tax penalties if the reason for the Company's failure to make
timely payments of Georgian taxes is attributable to the Employee's failure
to promptly provide the Company with the information needed to compute his
Georgian taxes. Any and all tax refunds received by the Employee from the
Georgian government in connection with such tax filings shall be promptly
returned by the Employee to the Company. At the end of the Term, the
Company shall, as described above, pay or otherwise offset the Employee's
personal tax obligations in Georgia in respect of Salary and other
compensation paid to him during the Term, but the Employee shall be solely
responsible for any and all personal tax obligations incurred by him after
the Term in Georgia or in any other tax jurisdiction. For the avoidance of
doubt, the Employee shall be solely responsible for his personal taxes in
the United Kingdom and in all other tax jurisdictions.
5 Vacation and Holiday
A period of absence for vacation or holidays is not provided under this
Agreement. However, salary shall be paid for periods during which the
Employee performs no services on account of vacation, holidays and personal
days as shall be set forth in an employment agreement between the Employee
and a Designated Company.
6 Restrictions upon Other Activities
6.1. The Employee shall not (a) during the term of this Agreement carry on or be
concerned, engaged or interested directly or indirectly (whether as a
principal, shareholder, partner, financier, employee, consultant, director,
officer, agent or otherwise) in any trade or business other than that of
the Company or any other Group Company, and shall not engage in any other
activity which the Company reasonably considers may impair his ability to
perform his duties under this Agreement; and (b) for a period of the
greater of (i) six months following the Termination Date and (ii) any
period during which the Employee receives remuneration hereunder following
the Termination Date, carry on or be concerned, engaged or interested
directly or indirectly (whether as a principal, shareholder, partner,
financier, employee, consultant, director, officer, agent or otherwise) in
any trade or business which is in competition with the business of the
Company or any other Group Company carried on at the Termination Date in
any country in which the Company or such Group Company (or any entity in
which such Group Company has a greater than 10% economic interest)
operates; provided that the foregoing shall not apply to the holding of a
Permitted Interest.
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6.2. The Employee shall not during the term of this Agreement and for a period
of six months thereafter (except in a purely social capacity, for the
legitimate business interests of his then-current employer or with the
prior written consent of the Board) make any contact, whether formal or
informal, written or oral, with any past, current or prospective suppliers,
customers or clients of the Company or any other Group Company with whom
the Employee has had business dealings at any time during the term of this
Agreement (including but not limited to, for the purposes of setting up a
competing business or seeking employment).
6.3. The Employee shall not during the Term and for a period of six months
thereafter either on his own behalf or on behalf of any person, firm or
company:
(a) solicit, approach or deal with, offer goods or services to, accept
custom from, or entice away any person, firm or company who was a
client or customer of the Company or any other Group Company during
the term of this Agreement, and with whom the Employee has been
actively engaged or involved by virtue of his duties hereunder during
the Pre-Termination Period; or
(b) solicit, approach or deal with, or offer goods or services to, or
entice away from the Company or any other Group Company, or interfere
with any person, firm or company who was a supplier, sales agent or
distributor of the Company or any other Group Company during the term
of this Agreement and in each case with whom the Employee has been
actively engaged or involved by virtue of his duties hereunder during
the Pre-Termination Period;
provided that nothing contained in sub-sections (a) and (b) above shall
prohibit the Employee from carrying out any activities which are not in
direct competition with any part of the business of any Group Company with
which the Employee was involved in during the Pre-Termination Period.
6.4 The Employee shall not during the term of this Agreement and for a period
of six months thereafter either on his own behalf or on behalf of any
person, firm or company:
(a) approach, solicit, hire or endeavor to entice away from the
Company or any other Group Company any Key Employee of the Company or
such Group Company, or discourage from being employed by the Company
or such Group Company any person who, to the knowledge of the
Employee, is a prospective Key Employee of the Company or such Group
Company; or
(b) employ or procure another person to employ any such person.
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6.5. The Employee (who acknowledges that, in the Term, he is likely to have
dealings with the clients, customers, suppliers and other contacts of the
Company and the other Group Companies) agrees that each of the restrictions
in this Section 6 is separate and distinct, is to be construed separately
from the other restrictions, and is reasonable as regards its duration,
extent and application for the legitimate business interests of the Company
and the other Group Companies. However, in the event that any such
restriction shall be found to be void or unenforceable but would be valid
and enforceable if some part or parts of it were deleted or revised, the
Employee agrees that such restriction shall apply with such deletions
and/or revisions as may be necessary to make it valid and effective.
7 Confidential Information
7.1 "Confidential Information" is used herein to mean any information that
pertains to or is in any way connected with the Company or any Group
Company, including explicitly and without limitation any such information
created or discovered by the Employee during the Term. Confidential
Information shall include but not be limited to items set forth in clauses
(a) through (d) immediately following.
(a) Business plans, trade secrets, processes, formulas, data,
know-how, inventions, improvements, techniques, plans,
strategies, forecasts, contracts, agreements, employee lists,
customer lists and suppliers lists.
(b) Information and data pertaining to any aspect of the Company's or
any Group Company's developmental, financial, technical,
marketing, sales or operating activities, or to the Company's or
any Group Company's organization, results, performance, costs,
revenues, procedures, processes, systems or employees.
(c) Computer programs and data bases and any information pertinent to
the design or operation of computer programs and data bases
acquired, developed, sold or used by the Company or any Group
Company or its employees; and information or data pertinent to
any programming techniques or processes connected with these
computer programs or data bases.
(d) Documentation, samples, models or prototypes, or parts thereof
developed by or in conjunction with any marketing, sales or
operational program undertaken by the Company or any Group
Company.
Without limitation to the foregoing, information or data shall be
considered as Confidential Information in connection herewith whenever the
confidential or proprietary status of the information or data is indicated
orally or in writing by the disclosing party, or in any context in which
the disclosing party reasonably communicated or the receiving party should
reasonably have understood that the information or data should be treated
as confidential, whether or not the specific words "confidential" or
"proprietary" are used.
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7.2 The Employee acknowledges that:
(a) He holds a senior management position with the Company and, in
connection with his performance of the services hereunder, he will
acquire and make use of Confidential Information;
(b) Such Confidential Information constitutes a unique and valuable
asset of the Company;
(c) Maintenance of the proprietary character of the Confidential
Information, to the full extent feasible, is important to the Company;
(d) The Confidential Information is sufficiently secret as to derive
economic value from not being generally known to others who could
obtain economic value from its disclosure or use; and
(e) The Confidential Information is currently the subject of efforts
by the Company to maintain its secrecy or confidentiality.
7.3 In order to protect the Confidential Information, the Employee agrees and
covenants to perform as set forth in clauses (a) through (c) immediately
following.
(a) The Employee shall hold the Confidential Information that is
within his personal control in strictest confidence and shall not use
or disclose such Confidential Information for so long as any such
Confidential Information may remain confidential, secret or otherwise
wholly or partially subject to protection, except:
(i) In connection with his performance of the Services;
(ii) As required by a court of law, by any governmental agency
having supervisory authority over the business of the
Company or by any administrative or legislative body
(including a committee thereof) with apparent jurisdiction
to order the Employee to divulge, disclose or make
accessible such information, provided, however, Employee
shall promptly provide notice of a request for same to the
Company;
(iii) In confidence to an attorney for the purpose of obtaining
legal advice; or
(iv) If such Confidential Information becomes generally known to
the public or trade without Employee's breach of this
Section 7.
7.4 The Employee shall take all reasonable and appropriate steps to:
(a) Safeguard any Confidential Information within his personal control
for so long as any such Confidential Information may remain
confidential, secret or otherwise wholly or partially subject to
protection, and
(b) Protect it against disclosure, misuse, espionage, loss and theft.
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7.5 The Employee shall return to the Company upon termination of employment all
materials then in his possession, custody or control belonging to the
Company, including all Confidential Information that is in tangible form
and that has come into his possession during his employment with the
Company; provided, however, that nothing shall prevent the Employee's
retaining personal correspondence files, personal diaries, calendars and
rolodexes or information relating to compensation, equity positions or
reimbursement of expenses, information he reasonably believes to be needed
for tax purposes, or copies of plans, programs, agreements and arrangements
relating to his employment, and other comparable materials.
8 Rights to Inventions and Licenses
8.1 The Employee represents that there are no inventions, original works of
authorship, developments, improvements and trade secrets made by the
Employee prior to the Commencement Date (collectively referred to as "Prior
Inventions"), which belong solely to the Employee or belong to the Employee
jointly with another, which relate in any way to any of the Company's
actual or proposed businesses, products or research and development and
which are not assigned to the Company hereunder. If, in the course of
Employee's employment with the Company, the Employee incorporates into a
product, service or process of the Company a Prior Invention owned by the
Employee or in which the Employee has an interest, the Company is hereby
granted and shall have a non-exclusive, royalty-free, irrevocable,
perpetual, worldwide license (with the right to sublicense) to make, have
made, copy, modify, make derivative works of, use, sell and otherwise
distribute such Prior Invention as part of or in connection with such
product, service or process.
8.2 The Employee agrees to promptly make full written disclosure to the Company
and to hold in trust for the sole right and benefit of the Company any and
all inventions, original works of authorship, developments, concepts,
know-how, improvements and trade secrets, whether or not patentable or
subject to registration under copyright or similar laws, which the Employee
may solely or jointly conceive or develop or reduce to practice, or cause
to be conceived or developed or reduced to practice, during the course of
his employment with the Company that:
(a) Relate at the time of conception or development to the actual or
demonstrably proposed business or research and development activities
of the Company;
(b) Result from or relate to any work performed for the Company,
whether or not during normal business hours;
(c) Are developed on Company work time; or
(d) Are developed through the use of Confidential Information or the
Company's equipment, software or other facilities or resources
(items (a) through (d) being collectively referred to herein as
"Inventions").
The Employee hereby assigns to the Company or its designee all of the
Employee's right, title and interest throughout the world in and to all
Inventions, and the Employee acknowledges that all Inventions are "works
made for hire" (to the greatest extent permitted by applicable law) and are
fully compensated by the Employee's Salary, unless regulated otherwise by
law.
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8.3 The Employee agrees to keep and maintain adequate and current written
records of all Inventions made by the Employee (solely or jointly with
others) during the course of his employment with the Company. The records
may be in the form of notes, sketches, drawings, flow charts, electronic
data or recordings, laboratory notebooks and any other format. The records
will be available to and remain the sole property of the Company at all
times. The Employee agrees not to remove such records from the Company's
place of business except as expressly permitted by Company policy which
may, from time to time, be revised at the sole election of the Company for
the purpose of furthering the Company's business.
8.4 The Employee agrees to assist the Company or its designee, at the Company's
expense, in every way to secure the Company's rights in the Inventions and
any copyrights, patents, trademarks, mask-work rights, moral rights or
other intellectual property rights relating thereto in any and all
countries, including the disclosure to the Company of all pertinent
information and data with respect thereto, the execution of all
applications, specifications, oaths, assignments, recordings and all other
documents and instruments which the Company shall deem necessary in order
to apply for, obtain, maintain and transfer such rights and in order to
assign and convey to the Company, its successors, assigns and nominees the
sole and exclusive right, title and interest in and to such Inventions and
any copyrights, patents, mask-work rights or other intellectual property
rights relating thereto. The Employee further agrees that the obligation to
execute or cause to be executed any such documents and instruments shall
continue after the termination of Employee's employment with the Company
until the expiration of the last such intellectual property right to expire
in any country of the world. If the Company is unable, because of the
Employee's mental or physical incapacity or unavailability for any other
reason, to secure the Employee's signature to apply for or to pursue any
application for any United States or foreign patents or copyright
registrations covering Inventions assigned to the Company as set forth
above, then the Employee hereby irrevocably designates and appoints the
Company (through its duly authorized officers and agents) as the Employee's
agent and attorney in fact, to act for and on the Employee's behalf, to
execute and file any such applications and to do all other lawfully
permitted acts to further the application for, prosecution, issuance,
maintenance or transfer of letters patent or copyright registrations
thereon with the same legal force and effect as if originally executed by
the Employee. The Employee hereby waives and irrevocably quitclaims to the
Company any and all claims, of any nature whatsoever, which the Employee
now or hereafter has for infringement of any and all proprietary rights
assigned to the Company.
9 Essential Covenants
The restrictions set out in Sections 6, 7 and 8 above are without prejudice
to any other fiduciary duties owed to the Company or any other Group
Company, whether express or implied. The Employee acknowledges that the
covenants and undertakings in Sections 6, 7 and 8 are made for the benefit
of the Company and all other Group Companies, and each of them shall be
considered to be a third party beneficiary of such covenants and
undertakings and, in the event of any breach thereof in relation to any
such company, the applicable Group Company shall be entitled to enforce
such breached covenant or undertaking directly against the Employee.
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10 Employee Conduct
The Employee hereby acknowledges that he has received, read and understands
and agrees to comply in all respects with the Company's Corporate Policies
Handbook, as it may be amended and supplemented from time to time, to the
extent not inconsistent with the terms of this Agreement.
11 Remedies
The Employee expressly acknowledges that the remedy at law for any breach
of Sections 6, 7 and 8 may be inadequate and that upon any breach or
threatened breach, the Company or any other Group Company affected by such
breach shall be entitled as a matter of right to injunctive relief in any
court of competent jurisdiction, in equity or otherwise, and to enforce the
specific performance of the Employee's obligations under those provisions
without the necessity of proving the actual damage or the inadequacy of a
legal remedy. The rights conferred by the preceding sentence shall not be
exclusive of, but shall be in addition to, any other rights or remedies
which such company may have at law, in equity or otherwise.
12 Termination
12.1 The Company may at any time terminate this Agreement with immediate effect
(or any such longer period of notice as the Company shall see fit) by
giving the Employee written notice in any of the following events:
(a) If the Employee at the time the notice is given is prevented by reason
of incapacity from appearing at his customary place of work and/or
fully and properly performing his duties, and has been so prevented
for at least a continuous period of 120 days or for an aggregate
period of at least 120 days (whether or not, in either case, working
days) in the preceding twelve months;
(b) If the Employee shall have
(i) committed an act of fraud or dishonesty, been convicted of a
serious crime or been guilty of gross misconduct (whether or not
in any such case connected with the employment hereunder),
(ii) committed any material breach of, or, after having been given
warning in writing, any repeated or continued breaches of, any of
his duties hereunder or any of his express or implied obligations
arising from this Agreement, including refusing to comply with
any proper instructions given to him,
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(iii) been guilty of conduct or permitted or suffered to occur events
or actions by others tending to bring the Company or any other
Group Company into disrepute,
(iv) committed any act which materially and adversely affects his
ability to properly carry out his material duties hereunder,
(v) failed, after having been given warning in writing and an
opportunity to cure, to have performed the material part of his
duties to the satisfaction of his Supervisor, or
(vi) become bankrupt, claimed the benefit of any legislation for the
time being in force for the relief of insolvent debtors, or
proposed or made any arrangement or composition with his
creditors.
12.2 Upon termination of the Agreement however arising:
(a) The Employee shall as soon as practicable upon the request of the
Board:
(i) resign from all offices held by him in the Company or any other
Group Company and from all other appointments or offices which he
holds as nominee or representative of the Company or any other
Group Company, and
(ii) terminate any powers of attorney, signatory powers or other
authorizations which he may have received from the Company or any
other Group Company, and, if he fails so to do, the Company is
irrevocably authorized by the Employee to appoint some person in
his name and on his behalf to execute such documents and to do
such other things as are reasonably necessary to give effect to
such resignations and terminations.
(b) The Employee (or, if he shall be dead, of unsound mind or bankrupt,
his personal representatives or such other persons as shall be
appointed to administer his estate and affairs) shall deliver to the
Company in accordance with the directions of the Board all computers,
cell phones and other equipment belonging to the Company or any other
Group Company, and all keys, security passes, credit cards, Documents
and other property belonging to or relating to the businesses or
affairs of the Company or any other Group Company, including all
copies of all Company and Group Company Documents containing
confidential information (and all copies, extracts or notes of any of
the same) which may be in his possession or under his control (or that
of his personal representatives or such other persons).
(c) The Employee shall cooperate to the extent requested by the Board in
the transfer of his duties and responsibilities to the person
designated as his successor.
(d) The Employee shall have no separate entitlement to any severance or
similar payment in respect of the termination of his employment,
however arising.
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12.3 The Employee shall have no claim against the Company or any other Group
Company:
(a) by reason of the merger, consolidation, continuation, dissolution or
liquidation of the Company, or the sale of all or substantially all of
the assets of the Company, provided that the Employee shall have first
been offered in writing a new appointment with the successor or
surviving company (or, in the case of a Designated Company, with the
Company or any other Group Company) on terms no less favorable to him
than under this Agreement; or
(b) in relation to any provision of the charter or other constituent
documents of any Group Company, or any agreement, plan or arrangement,
which (i) has the effect of requiring the Employee to sell or give up
any shares, securities, options or rights at any price, or (ii) causes
any options or other rights granted to him to become prematurely
exercisable or lapse.
12.4 The Board may at any time suspend the Employee pending the making and
completion of such investigation regarding the conduct of the Employee as
it thinks fit. While the suspension continues, unless specifically
otherwise provided in this Agreement, the Employee shall continue to
receive the Salary and other benefits set out in this Agreement. During the
period of suspension, neither the Company nor any other Group Company shall
be obliged to provide work to the Employee and the Employee shall be
required to comply with such conditions as the Company may reasonably
specify in relation to remaining at or remaining away from the places of
business of the Company and/or any other Group Company. Nothing in this
Section 12.4 shall be deemed to prevent the Agreement from being terminated
for cause pursuant to the terms of this Agreement during or after any such
investigation, whether on the grounds of the matter being investigated or
otherwise.
13 Notices
Notices by either party:
(a) must be in writing addressed to the Company or the Employee at their
respective addresses set out at the commencement of this Agreement, or
such other address as either may notify to the other from time to
time; and
(b) will be effectively served:
(i) on the day of receipt, where any hand-delivered letter (including
any delivery by recognized overnight courier) or facsimile
transmission is received on a business day before or during
normal working hours;
(ii) on the following business day, where any hand-delivered letter
(including any delivery by recognized overnight courier) or
facsimile transmission is received either on a business day after
normal working hours or on any other day; or
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(iii) on the fifth business day following the day of mailing to an
overseas address of any letter sent registered or certified mail.
14 General
14.1 This Agreement is in substitution for all contracts between the Company and
any other Group Company and the Employee (whether written, oral or governed
by a course of dealings) prior to the date hereof, each of which shall be
deemed to have terminated with effect from the Commencement Date.
14.2 Unless the context of this Agreement clearly requires otherwise, (a)
references to the plural include the singular, the singular the plural, and
the part the whole, and (b) references to one gender include all other
genders.
14.3 The section and other headings contained in this Agreement are for
reference purposes only and shall not control or affect the construction of
this Agreement or the interpretation thereof in any respect.
14.4 The waiver, express or implied, by either party of any right under this
Agreement or any breach by the other shall not constitute or be deemed a
waiver of any other right or breach under this Agreement or of the same
right or breach on another occasion.
14.5 No amendment, change or addition to the terms of this Agreement shall be
effective or binding on either the Company or the Employee unless reduced
to writing and executed by both the Company and the Employee.
14.6 During the term of the Agreement, the Employee undertakes not to disclose
or communicate any terms of this Agreement to any other employee of any
Group Company or to any third party (other than for the purpose of
obtaining professional advice or other than as required by applicable law,
including the tax and securities laws and regulations of the United
States).
14.7 Unless otherwise provided to the contrary herein, any provision of this
Agreement that contemplates operation after the termination of the
Agreement shall apply notwithstanding termination of the Agreement
howsoever arising.
14.8 If any provision of this Agreement or application thereof to anyone under
any circumstances is adjudicated to be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect any
other provisions or applications of this Agreement which can be given
effect without the invalid or unenforceable provision or application and
shall not invalidate or render unenforceable such provision in any
jurisdiction.
14.9 This Agreement is governed by and is to be construed in accordance with the
laws of the State of New York, U.S.A., without regard to the conflict of
laws principles thereof, and the Company and the Employee hereby submit to
the non-exclusive jurisdiction of the courts of New York with respect to
all matters relating to this Agreement.
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14.10 In order to keep and maintain accurate records relating to the Employee's
employment, it will be necessary for the Company to record, keep and
process personal data relating to the Employee. This data may be recorded,
kept and processed on computer and/or in hard copy form. To the extent that
it is reasonably necessary in connection with the Employee's employment and
the performance of the Company's responsibilities as an employer, it may be
necessary for the Company to disclose this data to others.
By signing this Agreement, the Employee consents to the recording,
processing, use, disclosure, and transfer by the Company of personal data
relating to him. This does not affect the Employee's rights to request
copies of the personal data, information about how that data is processed
and the names of the parties to whom the information may be properly
disclosed in compliance with all applicable laws.
For all purposes required by law, the Company has nominated the chief legal
officer of the Company as its representative.
IN WITNESS WHEREOF the Parties have executed this Employment Agreement.
METROMEDIA INTERNATIONAL
TELECOMMUNICATIONS SERVICES, INC.
By: /s/ Xxxx X. Xxxx
--------------------
Xxxx Xxxx
President
XXXXX XXX
/s/ Xxxxx Xxx
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