EMPLOYMENT AGREEMENT
EXHIBIT
10.2
This
EMPLOYMENT AGREEMENT (the “Agreement”) is made as of February 1, 2010 (the
“Effective Date”), by and between Arbinet Corporation a Delaware corporation
with its headquarters located in Herndon, Virginia (the “Employer”), and
Xxxxxxxx Xxxx (the “Executive”). In consideration of the mutual
covenants contained in this Agreement, the Employer and the Executive agree as
follows:
1. Employment. The
Employer agrees to employ the Executive and the Executive agrees to be employed
by the Employer on the terms and conditions set forth in this
Agreement.
2. Capacity. Subject
to the terms and conditions of this Agreement, the Executive shall serve the
Employer as General Counsel and Secretary and shall have the duties and
authority customary for such position. The Executive shall report
directly to the Chief Executive Officer (“CEO”) of the Employer and shall serve
the Employer in such additional offices incidental to such position as the
Executive may be reasonably requested to serve by the CEO or Board of Directors
of Employer (the “Board of Directors”). In such capacity or
capacities, the Executive shall perform such services and duties in connection
with the business, affairs and operations of the Employer as may be assigned or
delegated to the Executive from time to time by or under the authority of the
CEO or Board of Directors.
3. Compensation and
Benefits. The regular compensation and benefits payable to the
Executive under this Agreement shall be as follows:
(a) Salary. For
all services rendered by the Executive under this Agreement, the Employer shall
pay the Executive a salary (the “Salary”) at the annual rate of Two Hundred
Forty Thousand Dollars ($240,000), subject to increase from time to time in the
discretion of the Board of Directors of the Employer (the “Board of Directors”)
or the Compensation Committee of the Board of Directors (the “Compensation
Committee”). The Salary shall be payable in periodic installments in
accordance with the Employer’s usual practice for its senior
executives. Employer will not involuntarily reduce the Executive’s
Salary below Two Hundred Forty Thousand Dollars ($240,000) except for
across-the-board reductions similarly affecting all or substantially all senior
management employees.
(b) Bonus. Beginning
with the fiscal year ending 2010, the Executive shall be entitled to participate
in an annual incentive program established by the Board of Directors or the
Compensation Committee with such terms as may be established by the Board of
Directors or the Compensation Committee and mutually and reasonably agreed by
the Executive;
provided, that the Executive will have the opportunity to earn up to
Fifty Percent (50%) (the “Target Percentage”) of her Salary then in effect in
bonus compensation annually; provided, further, that the
Executive will have the opportunity to earn more than or less than the Target
Percentage in bonus compensation based upon underachievement or overachievement
of either the Employer’s or the Executive’s performance objectives or
both. The overall corporate financial objectives established for the
Executive shall be no more or less favorable to the Executive than the financial
objectives established for the other senior executives of the
Employer.
(c) Regular
Benefits. The Executive shall also be entitled to participate
in any qualified retirement plans, deferred compensation plans, supplemental
retirement plans, stock option and incentive plans, stock purchase plans,
medical insurance plans, life insurance plans, disability income plans,
retirement plans, vacation plans, expense reimbursement plans and other benefit
plans which the Employer may from time to time have in effect for all or most of
its senior executives. Such participation shall be subject to the
terms of the applicable plan documents, generally applicable policies of the
Employer, applicable law and the discretion of the Board of Directors, the
Compensation Committee or any administrative or other committee provided for in
or contemplated by any such plan. Nothing contained in this Agreement
shall be construed to create any obligation on the part of the Employer to
establish any such plan or to maintain the effectiveness of any such plan that
may be in effect from time to time.
(d) Equity
Grants: The Executive shall be eligible to participate in the
Employer’s 2004 Stock Incentive Plan, as amended (the “2004
Plan”). Under the 2004 Plan and subject to the approval of the Board
of Directors or the Compensation Committee, the Employer shall initially grant
the Executive an option to purchase 175,000 shares of the Employer’s common
stock (the “Initial Grant”). Concurrent with the execution of this
Agreement, the Employer and the Executive shall enter into a Non-Qualified Stock
Option Agreement which is attached hereto as Exhibit A (the
“Equity Agreement”).
(e) Additional
Benefits. The Employer shall provide the following additional
benefits to the Executive:
(i) Vacation.
(A) Unless
otherwise increased or decreased across-the-board for all senior management
employees, for 2010 and each subsequent year thereafter, the Executive shall be
entitled to 27 working days’ Paid Time Off to be taken at such time or times as
may be agreed with the Chief Executive Officer.
(B) Upon
termination of her employment for whatever reason the Executive shall, if
appropriate, either be entitled to salary in lieu of any accrued vacation
entitlement that has not been taken or be required to repay to the Employer any
salary received in respect of vacation taken in excess of her proportionate
vacation entitlement. For the purposes of calculating such payment in
lieu or such repayment, a day’s paid vacation shall be taken to be the
Executive’s Salary divided by two hundred sixty (260).
(ii) Reimbursement of Business
Expenses. The Employer shall reimburse the Executive for all
reasonable expenses incurred by her in performing services during the term of
this Agreement, in accordance with the Employer’s policies and procedures for
its senior executive officers, as in effect from time to time.
(iii) Indemnification. From
and after the date hereof, Executive will be included under the Employer’s
directors and officers liability insurance policy, with the same coverage as is
provided to other directors or officers of the Employer in respect of their
service to the Employer, and such coverage will continue without interruption
for so long as the Employer, or its successors and assigns, maintains such
coverage for its officers and directors.
2
(iv) Legal
Fees. The Employer shall reimburse the Executive for all
reasonable and documented attorney and professional fees incurred by the
Executive in connection with the negotiation and review of the terms of
employment and this Agreement.
(f) Exclusivity of Salary and
Benefits. The Executive shall not be entitled to any payments
or benefits other than those provided under this Agreement.
4. Extent of
Service. During the Executive’s employment under this
Agreement, the Executive shall, subject to the direction and supervision of the
CEO, devote the Executive’s full business time, best efforts and business
judgment, skill and knowledge to the advancement of the Employer’s interests and
to the discharge of the Executive’s duties and responsibilities under this
Agreement. The Executive shall not engage in any other business
activity, except as may be approved by the Chief Executive Officer; provided that nothing in this
Agreement shall be construed as preventing the Executive from:
(a) investing
the Executive’s assets in any company or other entity in a manner not prohibited
by Section 7(d) and in such form or manner as shall not require any material
activities on the Executive’s part in connection with the operations or affairs
of the companies or other entities in which such investments are made;
or
(b) engaging
in religious, charitable or other community or non-profit activities that do not
impair the Executive’s ability to fulfill the Executive’s duties and
responsibilities under this Agreement.
5. Termination. The
Executive’s employment under this Agreement shall terminate under the following
circumstances set forth in this Section 5.
(a) Termination by the Employer
for Cause. The Executive’s employment under this Agreement may
be terminated by the Employer for Cause (as defined below) without further
liability on the part of the Employer effective immediately upon a vote of the
Board of Directors and written notice to the Executive. Only the
following shall constitute “Cause” for such termination:
(i) the
Executive’s willful misconduct in the performance of her duties to the Employer,
or the Executive’s willful failure to implement any lawful policy of the
Employer;
(ii) the
Executive’s conviction of or plea of guilty or any plea other than “not guilty”
to a felony;
(iii) the
violation by the Executive of any material provision of this Agreement, which
either is not cured within ten (10) days after written notice is given to the
Executive by the Employer describing such violation or constitutes a habitual
breach of which the Executive has received prior written notice from the
Employer; or
3
(iv) the
Executive’s dishonesty, misappropriation or fraud with regard to the property of
the Employer or its affiliates.
(b) Termination by the Executive
for Good Reason. The Executive’s employment under this
Agreement may be terminated by the Executive for Good Reason (as defined
below). For purposes of this Agreement, “Good Reason” shall mean that
the Executive has complied with the Good Reason Process (as defined below)
following the occurrence of any of the following events:
(i) a
substantial diminution or other substantive adverse change, not consented to by
the Executive, in the nature or scope of the Executive’s responsibilities,
authorities, powers, functions or duties;
(ii) an
involuntary material reduction in the Executive’s Salary;
(iii) a
breach by the Employer of any of its other material obligations under this
Agreement;
(iv) a
material change in the geographic location at which the Executive must perform
her services; or
(v) any
requirement that the Executive report to someone other than the
CEO.
“Good
Reason Process” shall mean that: (A) the Executive reasonably determines in good
faith that a “Good Reason” event has occurred; (B) the Executive notifies the
Employer in writing of the occurrence of the Good Reason event within ninety
(90) days of the occurrence of such event; (C) the Executive cooperates in good
faith with the Employer’s efforts, for a period not less than thirty (30) days
following such notice, to modify the Executive’s employment situation in a
manner acceptable to the Executive and the Employer; and (D) notwithstanding
such efforts, one or more of the Good Reason events continues to exist and has
not been modified in a manner acceptable to the Executive. If the
Employer cures the Good Reason event in a manner acceptable to the Executive
during the thirty (30) day period, Good Reason shall be deemed not to have
occurred.
(c) Termination by the Employer
without Cause. Subject to the payment of Termination Benefits
(as defined below), the Executive’s employment under this Agreement may be
terminated by the Employer without Cause upon thirty (30) days prior written
notice to the Executive.
(d) Death. The
Executive’s employment with the Employer shall terminate upon her
death.
4
(e) Disability. If
the Executive shall be disabled so as to be unable to perform the essential
functions of the Executive’s then existing position or positions under this
Agreement with or without reasonable accommodation for a period of thirty (30)
nonconsecutive days or more within any six (6) month period, the Board of
Directors may, upon ten (10) days prior written notice, terminate the
Executive’s employment hereunder. Notwithstanding any such
termination, the Executive shall continue to receive the Executive’s full Salary
(less any disability pay or sick pay benefits to which the Executive may be
entitled under the Employer’s policies) and benefits under Section 3 of this
Agreement (except to the extent that the Executive may be ineligible for one or
more such benefits under applicable plan terms) for a period of time equal to
six (6) months, and the Executive’s employment may be terminated by the Employer
at any time thereafter. If any question shall arise as to whether
during any period the Executive is disabled so as to be unable to perform the
essential functions of the Executive’s then existing position or positions with
or without reasonable accommodation, the Executive may, and at the request of
the Employer shall, submit to the Employer a certification in reasonable detail
by a physician selected by the Employer to whom the Executive or the Executive’s
guardian has no reasonable objection as to whether the Executive is so disabled
or how long such disability is expected to continue, and such certification
shall for the purposes of this Agreement be conclusive of the
issue. The Executive shall cooperate with any reasonable request of
the physician in connection with such certification. If such question
shall arise and the Executive shall fail to submit such certification, the
Employer’s determination of such issue shall be binding on the
Executive. Nothing in this Section 5(e) shall be construed to waive
the Executive’s rights, if any, under existing law including, without
limitation, the Family and Medical Leave Act of 1993, 29 U.S.C. §2601 et seq. and the Americans
with Xxxxxxxxxxxx Xxx, 00 X.X.X. §00000 et seq.
6. Compensation Upon
Termination.
(a) Termination
Generally. If the Executive’s employment with the Employer is
terminated for any reason during the term of this Agreement, the Employer shall
pay or provide to the Executive (or to her authorized representative or estate)
any earned but unpaid Salary, unpaid expense reimbursements, accrued but unused
vacation and any vested benefits the Executive may have under any employee
benefit plan of the Employer (the “Accrued Benefit”).
(b) Termination by the Employer
Without Cause Before a Change of Control. In the event of
termination of the Executive’s employment with the Employer before a Change of
Control pursuant to Section 5(c) above and subject to the Executive’s agreement
to a release of any and all legal claims in a form satisfactory to the Employer
and the Executive (excluding any indemnification or other obligations hereunder
which survive termination of this Agreement), the Employer shall provide to the
Executive the following termination benefits (“Termination
Benefits”):
(i) a
lump sum payment equal to twelve (12) months’ of the Executive’s Salary at the
rate then in effect pursuant to Section 3(a); payable within fourteen (14) days
of the date of termination;
(ii) an
amount equal to any employer contribution that would have been made by the
Employer pursuant to any retirement plan of the Employer on the Executive’s
behalf had the Executive remained employed by the Employer during the
twelve-month period following the date of termination, assuming the Executive
contributed the maximum amount to the plan; and
5
(iii) continuation
of group health plan benefits to the extent authorized by and consistent with 29
U.S.C. § 1161 et seq. (commonly known as “COBRA”) for twelve (12) months or
until the Executive commences employment, if earlier, subject to payment of
premiums by the Executive at the active employees’ rate.
Notwithstanding
the foregoing, the amounts paid to the Executive under Section 6(b)(ii) and
Section 6(b)(iii) shall not exceed Twenty-Five Thousand Dollars ($25,000) in the
aggregate. The Employer’s liability for severance pursuant to Section
6(b)(i) shall be reduced by the amount of any severance pay paid to the
Executive pursuant to any severance pay plan or stay bonus plan of the
Employer. However, the Executive shall not be obligated to mitigate
the amount of any payment provided for in this Agreement by seeking employment
or otherwise, and such amounts shall not be reduced by any compensation or
earnings the Executive may receive from a future employer following termination
of her employment with Employer. Notwithstanding the foregoing,
nothing in this Section 6(b) shall be construed to affect the Executive’s right
to receive COBRA continuation entirely at the Executive’s own cost to the extent
that the Executive may continue to be entitled to COBRA continuation after the
Executive’s right to cost sharing under Section 6(b)(iii) ceases. The
Executive shall be obligated to give prompt notice of the date of commencement
of any employment during the benefits continuation period and shall respond
promptly to any reasonable inquiries concerning any employment in which the
Executive engages during the benefits continuation period.
(c) Termination by the Employer
with Cause. If the Executive’s employment is terminated by the
Employer with Cause under Section 5(a), the Employer shall have no further
obligation to the Executive other than payment of her Accrued
Benefit.
(d) Termination by the Employer
without Cause or by the Executive for Good Reason following a Change of
Control. In the event of termination of the Executive’s
employment with the Employer pursuant to Section 5(b) or Section 5(c) above
within twelve (12) months following a Change of Control and subject to the
Executive’s agreement to a release of any and all legal claims in a form
satisfactory to the Employer and the Executive (excluding any indemnification or
other obligations hereunder which survive termination of this Agreement), the
Employer shall provide to the Executive the following termination benefits
(“Termination Benefits”):
(i) a
lump sum payment equal to twelve (12) months’ of the Executive’s Salary at the
rate then in effect pursuant to Section 3(a), payable within fourteen (14) days
of the date of termination;
(ii) a
lump sum payment equal to the bonus compensation paid to the Executive in the
immediately preceding fiscal year, payable within fourteen (14) days of the date
of termination;
(iii) an
amount equal to any employer contribution that would have been made by the
Employer pursuant to any retirement plan of the Employer on the Executive’s
behalf had the Executive remained employed by the Employer during the twelve
(12) month period following the date of termination, assuming the Executive
contributed the maximum amount to the plan; and
6
(iv) continuation
of group health plan benefits to the extent authorized by and consistent with 29
U.S.C. § 1161 et seq. (commonly known as “COBRA”) for twelve (12) months or
until the Executive commences employment, if earlier, subject to payment of
premiums by the Executive at the active employees’ rate.
Notwithstanding
the foregoing, the amounts paid to the Executive under Section 6(d)(iii) and
Section 6(d)(iv) shall not exceed Twenty-Five Thousand Dollars ($25,000) in the
aggregate. The Employer’s liability for severance pursuant to Section
6(d)(i) shall be reduced by the amount of any severance pay paid to the
Executive pursuant to any severance pay plan or stay bonus plan of the
Employer. However, the Executive shall not be obligated to mitigate
the amount of any payment provided for in this Agreement by seeking employment
or otherwise, and such amounts shall not be reduced by any compensation or
earnings the Executive may receive from a future employer following termination
of her employment with Employer. Notwithstanding the foregoing,
nothing in this Section 6(d) shall be construed to affect the Executive’s right
to receive COBRA continuation entirely at the Executive’s own cost to the extent
that the Executive may continue to be entitled to COBRA continuation after the
Executive’s right to cost sharing under Section 6(d)(iv) ceases. The
Executive shall be obligated to give prompt notice of the date of commencement
of any employment during the benefits continuation period and shall respond
promptly to any reasonable inquiries concerning any employment in which the
Executive engages during the benefits continuation period.
(e) Definition of Change of
Control. For purposes of this Agreement, a “Change of Control”
shall mean:
(i) a
merger, consolidation or other reorganization approved by the Employer’s
stockholders, unless securities representing more than fifty percent (50%) of
the total combined voting power of the voting securities of the successor
corporation are immediately thereafter beneficially owned, directly or
indirectly and in substantially the same proportion, by the persons who
beneficially owned the Employer’s outstanding voting securities immediately
prior to such transaction; or
(ii) a
stockholder-approved liquidation, dissolution, sale, transfer or other
disposition of all or substantially all of the Employer’s assets;
or
(iii) the
closing of any transaction or series of related transactions pursuant to which
any person or any group of persons comprising a “group” within the meaning of
Rule 13d-5(b)(1) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”) (other than the Employer or a person that, prior to such
transaction or series of related transactions, directly or indirectly controls,
is controlled by or is under common control with, the Employer) becomes directly
or indirectly the beneficial owner (within the meaning of Rule 13d-3 of the
Exchange Act) of securities possessing (or convertible into or exercisable for
securities possessing) more than fifty percent (50%) of the total combined
voting power of the Employer’s securities (as measured in terms of the power to
vote with respect to the election of Board members) outstanding immediately
after the consummation of such transaction or series of related transactions,
whether such transaction involves a direct issuance from the Employer or the
acquisition of outstanding securities held by one or more of the Employer’s
existing stockholders.
7
(f) Payment of Termination
Benefits. Anything in this Agreement to the contrary
notwithstanding, if at the time of the Executive’s termination of employment,
the Executive is considered a “specified employee” within the meaning of Section
409A(a)(2)(B)(i) of the Internal Revenue Code of 1986, as amended (the “Code”),
and if any payment that the Executive becomes entitled to under this Agreement
is considered deferred compensation subject to interest and additional tax
imposed pursuant to Section 409A(a) of the Code as a result of the application
of Section 409A(a)(2)(B)(i) of the Code, then no such payment shall be payable
prior to the date that is the earlier of (i) six (6) months after the
Executive’s separation from service, or (ii) the Executive’s death, and the
initial payment shall include a catch-up amount covering amounts that would
otherwise have been paid during the first six-month period but for the
application of this Section 6(f). Any such deferred payment shall
earn simple interest calculated at the short-term applicable federal rate in
effect on the date of the Executive’s separation from service. The
parties intend that this Agreement will be administered in accordance with
Section 409A of the Code. The parties agree that this Agreement may
be amended, as reasonably requested by either party, and as may be necessary to
fully comply with Section 409A of the Code and all related rules and regulations
in order to preserve the payments and benefits provided hereunder without
additional cost to either party.
7. Confidential Information,
Noncompetition and Cooperation.
(a) Confidential
Information. As used in this Agreement, “Confidential
Information” means information belonging to the Employer which is of value to
the Employer in the course of conducting its business and the disclosure of
which could result in a competitive or other disadvantage to the
Employer. Confidential Information includes, without limitation,
financial information, reports, and forecasts; inventions, improvements and
other intellectual property; trade secrets; know-how; designs, processes or
formulae; software; market or sales information or plans; customer lists; and
business plans, prospects and opportunities (such as possible acquisitions or
dispositions of businesses or facilities) which have been discussed or
considered by the management of the Employer. Confidential
Information includes information developed by the Executive in the course of the
Executive’s employment by the Employer, as well as other information to which
the Executive may have access in connection with the Executive’s
employment. Confidential Information also includes the confidential
information of others with which the Employer has a business
relationship. Notwithstanding the foregoing, Confidential Information
does not include (i) information in the public domain, unless due to breach of
the Executive’s duties under Section 7(b) or (ii) otherwise known by the
Executive other than by reason of her employment hereunder; provided that the source of
such information is not known by the Executive to have disclosed such
information in violation of an obligation of confidentiality owed to the
Employer.
(b) Confidentiality. The
Executive understands and agrees that the Executive’s employment creates a
relationship of confidence and trust between the Executive and the Employer with
respect to all Confidential Information. At all times, both during
the Executive’s employment with the Employer and after its termination, the
Executive will keep in confidence and trust all such Confidential Information,
and will not use or disclose any such Confidential Information without the
written consent of the Employer, except as may be necessary in the ordinary
course of performing the Executive’s duties to the Employer.
8
(c) Documents, Records,
etc. All documents, records, data, apparatus, equipment and
other physical property, whether or not pertaining to Confidential Information,
which are furnished to the Executive by the Employer or are produced by the
Executive in connection with the Executive’s employment will be and remain the
sole property of the Employer. The Executive will return to the
Employer all such materials and property as and when requested by the
Employer. In any event, the Executive will return all such materials
and property immediately upon termination of the Executive’s employment for any
reason. The Executive will not retain any such material or property
or any copies thereof after such termination.
(d) Noncompetition and
Nonsolicitation. During the term of this Agreement and for one
(1) year thereafter, the Executive (i) will not, directly or indirectly, whether
as owner, partner, shareholder, consultant, agent, employee, co-venturer or
otherwise, engage, participate, assist or invest in any Competing Business (as
defined below); (ii) will refrain from directly or indirectly employing,
attempting to employ, recruiting or otherwise soliciting, inducing or
influencing any person to leave employment with the Employer (other than
terminations of employment of subordinate employees undertaken in the course of
the Executive’s employment with the Employer); and (iii) will refrain from
soliciting or encouraging any customer or supplier to terminate or otherwise
modify adversely its business relationship with the Employer. The
Executive understands that the restrictions set forth in this Section 7(d) are
intended to protect the Employer’s interest in its Confidential Information and
established employee, customer and supplier relationships and goodwill, and
agrees that such restrictions are reasonable and appropriate for this
purpose. For purposes of this Agreement, the term “Competing
Business” shall mean a business conducted anywhere in any jurisdiction where the
Employer and/or its affiliates conduct such business as of the date Executive’s
employment terminates, and shall be deemed to include, without limitation, any
business activity or jurisdiction which is covered by or included in a written
proposal or business plan existing on the date of the termination of the
Executive’s employment with the Employer, which is directly competitive with any
business which the Employer or any of its affiliates conducts or has
documentable plans to conduct at any time during the employment of the
Executive. Notwithstanding the foregoing, (i) the Executive may own
up to one percent (1%) of the outstanding stock of a publicly held corporation
which constitutes or is affiliated with a Competing Business.
(e) Third-Party Agreements and
Rights. The Executive hereby confirms that the Executive is
not bound by the terms of any agreement with any previous employer or other
party which restricts in any way the Executive’s use or disclosure of
information or the Executive’s engagement in any business. The
Executive represents to the Employer that the Executive’s execution of this
Agreement, the Executive’s employment with the Employer and the performance of
the Executive’s proposed duties for the Employer will not violate any
obligations the Executive may have to any such previous employer or other
party. In the Executive’s work for the Employer, the Executive will
not disclose or make use of any information in violation of any agreements with
or rights of any such previous employer or other party, and the Executive will
not bring to the premises of the Employer any copies or other tangible
embodiments of non-public information belonging to or obtained from any such
previous employment or other party.
9
(f) Litigation and Regulatory
Cooperation. During and for a one (1) year period after the
Executive’s employment, the Executive shall cooperate fully with the Employer in
the defense or prosecution of any claims or actions now in existence or which
may be brought in the future against or on behalf of the Employer which relate
to events or occurrences that transpired while the Executive was employed by the
Employer. The Executive’s full cooperation in connection with such
claims or actions shall include, but not be limited to, being available to meet
with counsel to prepare for discovery or trial and to act as a witness on behalf
of the Employer at mutually convenient times. During and after the
Executive’s employment, the Executive also shall cooperate fully with the
Employer in connection with any investigation or review of any federal, state or
local regulatory authority as any such investigation or review relates to events
or occurrences that transpired while the Executive was employed by the
Employer. The Employer shall reimburse the Executive for any
reasonable out-of-pocket expenses incurred in connection with the Executive’s
performance of obligations pursuant to this Section 7(f).
(g) Injunction. The
Executive agrees that it would be difficult to measure any damages caused to the
Employer which might result from any breach by the Executive of the promises set
forth in this Section 7, and that in any event money damages would be an
inadequate remedy for any such breach. Accordingly, the Executive
agrees that if the Executive breaches, or proposes to breach, any portion of
this Agreement, the Employer shall be entitled, in addition to all other
remedies that it may have, to an injunction or other appropriate equitable
relief to restrain any such breach without showing or proving any actual damage
to the Employer.
8. Consent to
Jurisdiction. The parties hereby consent to the jurisdiction
of the Circuit Court of the Commonwealth of Virginia located in Fairfax County
and the United States District Court for the Eastern District of
Virginia. Accordingly, with respect to any such court action, the
parties (a) submit to the personal jurisdiction of such courts; (b) consent to
service of process; and (c) waive any other requirement (whether imposed by
statute, rule of court, or otherwise) with respect to personal jurisdiction or
service of process.
9. Integration. This
Agreement constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all prior agreements between the
parties with respect to any related subject matter.
10. Assignment; Successors and
Assigns, etc. Neither the Employer nor the Executive may make
any assignment of this Agreement or any interest herein, by operation of law or
otherwise, without the prior written consent of the other party; provided that the Employer
may assign its rights under this Agreement without the consent of the Executive
in the event that the Employer shall effect a reorganization, consolidate with
or merge into any other corporation, partnership, organization or other entity,
or transfer all or substantially all of its properties or assets to any other
corporation, partnership, organization or other entity. This
Agreement shall inure to the benefit of and be binding upon the Employer and the
Executive, their respective successors, executors, administrators, heirs and
permitted assigns.
10
11. Enforceability. If
any portion or provision of this Agreement (including, without limitation, any
portion or provision of any section of this Agreement) shall to any extent be
declared illegal or unenforceable by a court of competent jurisdiction, then the
remainder of this Agreement, or the application of such portion or provision in
circumstances other than those as to which it is so declared illegal or
unenforceable, shall not be affected thereby, and each portion and provision of
this Agreement shall be valid and enforceable to the fullest extent permitted by
law.
12. Waiver. No
waiver of any provision hereof shall be effective unless made in writing and
signed by the waiving party. The failure of any party to require the
performance of any term or obligation of this Agreement, or the waiver by any
party of any breach of this Agreement, shall not prevent any subsequent
enforcement of such term or obligation or be deemed a waiver of any subsequent
breach.
13. Notices. Any
notices, requests, demands and other communications provided for by this
Agreement shall be sufficient if in writing and delivered in person or sent by a
nationally recognized overnight courier service or by registered or certified
mail, postage prepaid, return receipt requested, to the Executive at the last
address the Executive has filed in writing with the Employer or, in the case of
the Employer, at its main offices, attention of the CEO, and shall be effective
on the date of delivery in person or by courier or three (3) days after the date
mailed.
14. Amendment. This
Agreement may be amended or modified only by a written instrument signed by the
Executive and by a duly authorized representative of the Employer.
15. Governing
Law. This is a Virginia contract and shall be construed under
and be governed in all respects by the laws of the Commonwealth of Virginia,
without giving effect to its conflict of laws principles With respect
to any disputes concerning federal law, such disputes shall be determined in
accordance with the law as it would be interpreted and applied by the United
States Court of Appeals for the Fourth Circuit.
16. Counterparts. This
Agreement may be executed in any number of counterparts, each of which when so
executed and delivered shall be taken to be an original; but such counterparts
shall together constitute one and the same document.
*remainder
of page has intentionally been left blank*
11
IN
WITNESS WHEREOF, this Employment Agreement has been executed as a sealed
instrument by the Employer, by its duly authorized officer, and by the
Executive.
ARBINET
CORPORATION
|
||
By:
|
/s/ Xxxxx X. X’Xxxxxxx
|
|
Name: Xxxxx
X. X’Xxxxxxx
|
||
Title:
President and Chief Executive Officer
|
||
/s/ Xxxxxxxx Xxxx
|
||
Xxxxxxxx
Xxxx
|
EXHIBIT
A
Equity Agreement