Exhibit 10.1
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EXECUTIVE EMPLOYMENT AGREEMENT
(Jorge L. Escalona)
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is made and entered
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into effective as of March 3, 2000, by and between GlobeNet Communications Group
Limited, a Bermuda company (together with its successors and assigns, the
"Company"), and Jorge L. Escalona (the "Executive").
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WHEREAS, the Executive has special and unique knowledge, abilities and
expertise with respect to the business of the Company; and
WHEREAS, on the terms and conditions set forth herein, the Company desires
to employ the Executive and the Executive desires to be employed by the Company.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Employment Period. Subject to Section 3, the Company hereby agrees to
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employ the Executive, and the Executive hereby agrees to be employed by the
Company, in accordance with the terms and provisions of this Agreement, for the
period commencing effective as of March 3, 2000 (the "Effective Date") and
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ending on March 3, 2003 (the "Employment Period"); provided, however, that
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commencing on March 3, 2003 and on each anniversary of such date occurring
thereafter, the Employment Period shall automatically be extended for one
additional year unless at least three months prior to the ensuing anniversary
date, but no more than 12 months prior to such anniversary date, the Company or
the Executive shall have given written notice that it or he, as applicable, does
not wish to extend this Agreement (a "Non-Renewal Notice"). The term
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"Employment Period", as utilized in this Agreement, shall refer to the
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Employment Period as so automatically extended.
2. Terms of Employment.
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(a) Position and Duties.
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(i) During the term of the Executive's employment, the
Executive shall serve as Chief Executive Officer and President of the Company
and, in so doing, shall report to the Company's board of directors (the "Board")
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or any committee thereof as may be designated from time to time by the Board.
The Executive shall have supervision and control over, and responsibility for,
such management and operational functions of the Company currently assigned to
such position, and shall have such other powers and duties (including holding
officer positions with the Company and one or more subsidiaries of the Company)
as may from time to time be prescribed by the Board, so long as such powers and
duties are reasonable and customary for the chief executive officer of an
enterprise comparable to the Company.
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(ii) The Company shall, during the term of the Executive's
employment, use all reasonable efforts to cause the Executive to be elected or
appointed to the Board to the extent the Company has the right to so cause the
Executive to be elected or appointed. The Executive agrees to serve on the Board
if elected or appointed.
(iii) During the term of the Executive's employment, and
excluding any periods of vacation and sick leave to which the Executive is
entitled, the Executive agrees to devote substantially all of his business time
to the business and affairs of the Company and, to the extent necessary to
discharge the responsibilities assigned to the Executive hereunder, to use the
Executive's reasonable efforts to perform faithfully, effectively and
efficiently such responsibilities. Notwithstanding anything to the contrary in
Section 9, except as otherwise provided in this Section 2(a)(iii), during the
term of the Executive's employment and thereafter, it shall not be a violation
of this Agreement for the Executive to (1) serve on corporate, civic or
charitable boards or committees, (2) deliver lectures or fulfill speaking
engagements and (3) manage personal investments, so long as such activities do
not interfere with the performance of the Executive's responsibilities as a
member of the Board and as an employee of the Company in accordance with this
Agreement; provided, however, the right to serve on corporate boards or
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committees and the right to manage personal investments is subject to Section 9.
(b) Compensation.
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(i) Base Salary. During the term of the Executive's
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employment, the Executive shall receive an annual base salary ("Annual Base
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Salary"), which shall be paid in accordance with the customary payroll practices
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of the Company, at least equal to the amount specified on Exhibit A attached
hereto.
(ii) Bonuses. For each calendar year of the Company, the
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Executive shall be awarded an annual performance bonus (the "Bonus") payable on
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March 1st, subject to and in accordance with the terms and provisions of Exhibit
A attached hereto.
(iii) Expenses. During the term of the Executive's employment,
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the Executive shall be entitled to receive prompt reimbursement for all
reasonable employment expenses incurred by the Executive in accordance with the
policies, practices and procedures of the Company.
(iv) Stock Options. Contemporaneously with the execution of
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the parties hereto have executed that certain Executive Stock Option Agreement
and that certain Executive Supplemental Stock Option Agreement (collectively,
the "Option Agreements"), pursuant to which the Company grants to the Executive
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stock options (the "Executive Options") exercisable for shares of capital stock
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of the Company subject to and in accordance with the terms and provisions of the
Option Agreements.
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(v) Perquisites. During the term of the Executive's
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employment, the Executive shall be entitled to receive (in addition to the
benefits described above) such perquisites and fringe benefits appertaining to
the level of his position in accordance with any practice established by the
Board.
(vi) Initial Benefits Package. Commencing as of the
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Effective Date, and subject to subsection (vii)(B) below, the following benefits
shall be made available to the Executive and/or his family, as the case may be:
(A) the Executive shall be entitled to participate in all
incentive, savings and retirement plans, practices,
policies and programs applicable generally to other senior
executives of the Company ("Investment Plans");
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(B) the Executive and/or the Executive's family, as the case
may be, shall be eligible for participation in and shall
receive all benefits under welfare benefit plans,
practices, policies and programs ("Welfare Plans")
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provided by the Company (including medical, prescription,
dental, disability, salary continuance, employee life,
group life, accidental death and travel accident insurance
plans and programs) to the extent applicable generally to
other senior executives of the Company; and
(C) the Executive shall be entitled to paid vacation and paid
holidays in accordance with the plans, policies, programs
and practices of the Company for its senior executives.
(vii) Other Compensation Matters. The Company agrees that if
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neither an Evaluation Event or change of control (as each such term is defined
in the Executive Supplemental Stock Option Agreement) occurs within three (3)
months of the Effective Date; provided, however, that such three month period
shall be extended for up to an additional three (3) months to the extent the
Company has entered into definitive documentation to effect either such
Evaluation Event or change of control, the closing of which is subject only to
conditions that are customary for such transactions (e.g., regulatory and
shareholder approvals), then:
(A) the Executive shall receive a cash signing bonus of $350,000;
(B) it shall establish a benefits package for the Executive commensurate
with industry standards for a chief executive officer, including
incentive, savings and retirement plans, welfare benefit plans (e.g.,
medical, prescription, dental, disability, salary continuance,
employee life, group life, accidental death and travel accident
insurance plans and programs), and automobile and vacation policies;
(C) vesting of the Executive Stock Options granted under the Executive
Supplemental Stock Option Agreement shall be triggered in accordance
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with the terms and provisions of such supplemental stock option
agreement; and
(D) the Executive shall be reimbursed on a fully grossed up basis for his
actual and reasonable relocation expenses in moving his family to
Florida, including exploratory trips, closing costs associated with
selling his present home and purchasing a new home (including points
and reasonable attorney fees), and moving costs.
3. Termination of Employment.
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(a) Death or Disability. The Executive's employment shall terminate
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automatically upon the Executive's death during the Employment Period. If the
Disability of the Executive has occurred during the Employment Period (pursuant
to the definition of Disability set forth below), the Company may give to the
Executive written notice in accordance with Section 11(b) of its intention to
terminate the Executive's employment. In such event, the Executive's employment
with the Company shall terminate effective on the 30th day after receipt of such
notice by the Executive (the "Disability Effective Date"), provided that, within
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the 30 days after such receipt, the Executive shall not have returned to full-
time performance of the Executive's duties. For purposes of this Agreement,
"Disability" shall mean the Executive's inability to perform his duties and
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obligations hereunder for a period of 180 consecutive days due to mental or
physical incapacity as determined by a physician selected by the Company or its
insurers and acceptable to the Executive or the Executive's legal representative
(such agreement as to acceptability not to be withheld unreasonably).
(b) Cause or Board Termination. The Company may terminate the
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Executive's employment during the Employment Period for Cause or without Cause.
For purposes of this Agreement, "Cause" shall mean (i) a breach by the Executive
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of the Executive's obligations under Section 2(a)(iii) (other than as a result
of physical or mental incapacity) which constitutes a continued material
nonperformance by the Executive of his obligations and duties thereunder, as
reasonably determined by the Board, and which is not remedied within 30 days
after receipt of written notice from the Company specifying such breach, (ii)
commission by the Executive of an act of fraud upon, or willful misconduct
toward, the Company or any Affiliate (as defined below in this Section 3(b)), as
reasonably determined by a majority of the disinterested members of the Board
(neither the Executive nor members of his family being deemed disinterested for
this purpose) after a hearing by the Board following fourteen days' notice to
the Executive of such hearing, (iii) a material breach by the Executive of
Section 6 or Section 9, (iv) the conviction of the Executive of any felony or
crime of moral turpitude (or a plea of nolo contendere thereto) or (v) the
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failure of the Executive to carry out, or comply with, in any material respect
any lawful directive of the Board consistent with the terms of this Agreement,
which is not remedied within 30 days after receipt of written notice from the
Company specifying such failure. As used in this Agreement, "Affiliate" means,
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with respect to a Person, any other Person controlling, controlled by or under
common control with the first Person; the term "control," and correlative terms,
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means
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the power, whether by contract, equity ownership or otherwise, to direct the
policies or management of a Person; and "Person" means an individual,
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partnership, corporation, limited liability company, trust or unincorporated
organization, or a government or agency or political subdivision thereof.
(c) Good Reason. The Executive's employment may be terminated during
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the Employment Period by the Executive for Good Reason or without Good Reason;
provided, however, that the Executive agrees not to terminate his employment for
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Good Reason unless (i) the Executive has given the Company at least 30 days'
prior written notice of his intent to terminate his employment for Good Reason,
which notice shall specify the facts and circumstances constituting Good Reason
and (ii) the Company has not remedied such facts and circumstances constituting
Good Reason within such 30-day period. For purposes of this Agreement, "Good
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Reason" shall mean:
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(i) the assignment to the Executive of any duties inconsistent
in any respect with the Executive's position (including status, offices, titles
and reporting requirements), 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 within ten business days after
receipt of notice thereof given by the Executive; provided, however, that Good
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Reason may not be asserted by the Executive under this clause (i) of Section
3(c) after a Non-Renewal Notice has been given by either the Company or the
Executive;
(ii) any termination or material reduction of the Executive's
compensation or benefits;
(iii) any failure by the Company to comply with any of the
provisions of Section 2(b), 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;
(iv) any failure by the Company to comply with and satisfy
Section 8(c);
(v) without limiting the generality of the foregoing, any
material breach by the Company or any of its subsidiaries or other Affiliates of
this Agreement.
(d) Notice of Termination. Any termination by the Company for Cause
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or without Cause, or by the Executive for Good Reason or without Good Reason,
shall be communicated by Notice of Termination to the other party hereto given
in accordance with Section 11(b). For purposes of this Agreement, a "Notice of
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Termination" means a written notice which (i) indicates the specific termination
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provision in this Agreement relied upon, (ii) to the extent applicable, sets
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the provision so
indicated and (iii) if the Date of
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Termination (as defined below) is other than the date of receipt of such notice,
specifies the termination date (which date shall not be more than 15 days after
the giving of such notice). The failure by the Executive or the Company to set
forth in the Notice of Termination any fact or circumstance which contributes to
a showing of Good Reason or Cause shall not waive any right of the Executive or
the Company hereunder or preclude the Executive or the Company from asserting
such fact or circumstance in enforcing the Executive's or the Company's rights
hereunder.
(e) Date of Termination. "Date of Termination" means (i) if the
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Executive's employment is terminated by the Company for Cause or without Cause,
or by the Executive for Good Reason or without Good Reason, the date of receipt
of the Notice of Termination or any later date specified therein pursuant to
Section 3(d), as the case may be and (ii) if the Executive's employment is
terminated by reason of death or Disability, the date of death of the Executive
or the Disability Effective Date, as the case may be.
4. Obligations of the Company upon Termination.
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(a) Good Reason; Other Than for Cause, Death or Disability. If,
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during the Employment Period, the Company shall terminate the Executive's
employment other than for either Cause or Disability or the Executive shall
terminate his employment for Good Reason, and the termination of the Executive's
employment in any case is not due to his death or Disability:
(i) The Company shall (except as otherwise hereinafter
provided) pay to the Executive in a lump sum in cash within ten days after the
Date of Termination the aggregate of the following amounts:
(1) the portion of the Annual Base Salary through the Date
of Termination to the extent not theretofore paid and any
compensation previously deferred by the Executive ("Accrued
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Obligations");
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(2) the portion of the Executive's then current Annual
Base Salary for the then-remaining term of the Employment Period;
(3) a pro rata portion of the projected Bonus (based upon
the Company's actual performance for the calendar year in which
such termination occurs through the Date of Termination) that
would have been payable to the Executive pursuant to Section
2(b)(ii) hereof for such calendar year if such Executive had
remained in the employ of the Company through the end of such
calendar year, based upon the number of days during such calendar
year prior to the Date of Termination (the "Accrued Bonus"); and
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(ii) The Executive shall vest, as of the Date of Termination,
in the Executive Options that would otherwise vest after the Date of Termination
to the extent provided in the Option Agreements.
(b) Death or Disability. If the Executive's employment is terminated
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by reason of the Executive's death or Disability during the Employment Period,
the Company shall (except as otherwise hereinafter provided) pay to his legal
representatives in a lump sum in cash within ten days after the Date of
Termination the aggregate of the following amounts: (i) the Accrued Obligations;
(ii) the Accrued Bonus and (iii) the equivalent of three months Annual Base
Salary. Further, the Executive shall vest, as of the Date of Termination, in
the Executive Options that would otherwise vest after the Date of Termination to
the extent provided in the Option Agreements. The Company shall have no further
payment obligations to the Executive or his legal representatives under this
Agreement.
(c) Cause; Other than for Good Reason. If the Executive's employment
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shall be terminated by the Company for Cause or by the Executive without Good
Reason during the Employment Period, the Company shall have no further payment
obligations to the Executive other than for payment of the Accrued Obligations.
Further, (i) all unvested rights under or in respect of the Executive Options or
any stock option, stock appreciation right or similar agreement (including the
Option Agreements) that would otherwise vest after the Date of Termination shall
be canceled and of no further force or effect and (ii) the expiration date of
any Executive Options which have already vested shall be as provided in the
Option Agreements.
5. Full Settlement; Mitigation. In no event shall the Executive be
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obligated to seek other employment or take any other action by way of mitigation
of the amounts payable to the Executive under any of the provisions of this
Agreement and such amounts shall not be reduced whether or not the Executive
obtains other employment. Neither the Executive nor the Company shall be liable
to the other party for any damages in addition to the amounts payable under
Section 4 arising out of the termination of the Executive's employment prior to
the end of the Employment Period; provided, however, that the Company shall be
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entitled to seek damages for any breach by the Executive of Section 6, 7 or 9.
6. Confidential Information and Intellectual Property.
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(a) The Executive acknowledges that the Company and its Affiliates
have trade, business and financial secrets and other confidential and
proprietary information (collectively, the "Confidential Information").
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Confidential Information shall not include (i) information that is generally
known to other Persons who can obtain economic value from its disclosure or use
and (ii) information required to be disclosed by the Executive pursuant to a
subpoena or court order, or pursuant to a requirement of a governmental agency
or law of the United States of America or a state thereof or any governmental or
political subdivision thereof; provided, however, that the Executive shall
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(at the Company's sole cost and expense) take all reasonable steps to prohibit
disclosure pursuant to subsection (ii) above.
(b) The Executive agrees (i) to hold the Confidential Information in
confidence and (ii) not to release such information to any Person (other than
Company employees and other Persons to whom the Company has authorized the
Executive to disclose such information and then only to the extent that such
Company employees and other Persons authorized by the Company have a need for
such knowledge) or as required pursuant to Section 6(a)(ii) above.
(c) The Executive further agrees not to use any Confidential
Information for the benefit of any Person other than the Company and its
Affiliates.
(d) To the extent permitted by law, all rights worldwide with respect
to any and all intellectual or other property of any nature produced, created or
suggested by the Executive during the Employment Period or resulting from his
service shall be deemed to be a work for hire and shall be the sole and
exclusive property of the Company. The Executive agrees to execute, acknowledge
and deliver to the Company, at the Company's request, such further documents as
the Company finds appropriate to evidence the Company's rights in such property.
(e) The Executive agrees to sign the Company's standard form of
confidentiality agreement at the request of the Company.
7. Surrender of Materials Upon Termination. Upon any termination of the
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Executive's employment, the Executive shall immediately return to the Company
all copies, in whatever form, of any and all Confidential Information and other
properties of the Company and its Affiliates which are in the Executive's
possession, custody or control.
8. Successors and Assigns.
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(a) This Agreement is personal to the Executive and without the prior
written consent of the Company shall not be assignable by the Executive
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by the Executive's legal
representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns and the Company shall have the right
to assign this Agreement.
(c) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. As used in this Agreement,
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"Company" shall mean the Company as hereinbefore defined and any successor to
its business and/or assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law, or otherwise.
9. Non-Competition.
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(a) The Executive covenants and agrees with the Company that, while
he is an employee of the Company or any Affiliate thereof and thereafter, (1)
during the applicable Non-Compete Period with respect to the matters referred to
in clause (i) below, (2) for a period of two years after termination of
employment with respect to the matters referred to in clause (ii) below and (3)
for a period of one year after termination of employment with respect to the
matters referred to in (iii) below, he will not, without the prior written
consent of the Company, either directly or indirectly:
(i) solicit any contractors, customers or distributors of the
Company or any Affiliate thereof or endeavor to entice away from the Company or
any Affiliate thereof any such Person or otherwise interfere with the
relationship between such Person and the Company or any Affiliate thereof for
the purposes of competing with the Company or any Affiliate thereof; or
(ii) endeavor to entice away from the Company or any Affiliate
thereof any person who is employed by the Company or any Affiliate thereof,
either directly or indirectly, or interfere in any way with the
employer/employee relations between any such employee and the Company or any
Affiliate thereof; or
(iii) offer employment to any person who was employed by the
Company or any Affiliate thereof at any time within the 12-month period
preceding the date upon which the Executive ceases to be an employee of the
Company or any Affiliate thereof (but the Executive may offer employment to any
such person whose employment with the Company or any Affiliate thereof was
terminated by the Company or any Affiliate thereof without cause (with "cause"
having the meaning similar to Cause) or by such person for good reason (with
good reason having the meaning similar to Good Reason)).
(b) The Executive covenants and agrees with the Company and each
Affiliate thereof that:
(i) while he is an employee of the Company or any Affiliate
thereof, he shall not directly or indirectly compete in any manner against the
Company or any of its Affiliates; and
(ii) during the applicable Non-Compete Period, he will not,
directly or indirectly, in any manner whatsoever, including either individually
or in partnership or jointly or in conjunction with any other Person, as
principal, agent, shareholder, employee or in any other manner whatsoever, carry
on or be engaged in or
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concerned with or interested in or lend money to, guarantee the debts or
obligations of or permit his name to be used by a Competitive Business (as
defined below).
(c) (i) For the purposes of this Section 9, a "Competitive
Business" shall mean any business relating to or involving (A) the ownership (as
its principal business) and/or the construction (as its principal business)
and/or operation (as its principal business) of any submarine cable system which
is located or is to be located between (1) Bermuda and the United States of
America, (2) Bermuda and South America, (3) the United States of America and
South America or (4) any two or more countries or continents if the Company or
any Affiliate thereof is constructing, owning and/or operating or is to
construct, own and/or operate any submarine cable system between any such
countries or continents during the Executive's employment hereunder or (B)
telecommunication services (including electronic commerce) in Bermuda.
(ii) For purposes of this Agreement, the term "Non-Compete
Period" shall mean, in the case of:
(1) termination of employment by the Company for Cause,
two years following such termination;
(2) termination of employment by the Company due to the
Executive's Disability or without Cause, (A) the period of time
following such termination and continuing until the expiration of
the Employment Period plus (B) such additional period of time (if
any) that the Company continues (in its sole discretion) to pay
the Executive the Annual Base Salary in accordance with its
customary practices for paying executive salary (but the
aggregate time under (A) and (B) of this clause (2) shall not
exceed two years);
(3) termination of employment by the Company as a result
of it providing a Non-Renewal Notice under Section 1, that period
of time (if any) following termination and continuing for as long
as the Company continues (in its sole discretion) to pay the
Executive the Annual Base Salary in accordance with its customary
practices for paying executive salary (not to exceed two years);
(4) termination of employment by the Executive for Good
Reason, the period of time following such termination and
continuing until the expiration of the Employment Period (but in
no event to exceed two years);
(5) termination of employment by the Executive without
Good Reason, two years following such termination; and
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(6) termination of employment by the Executive as a
result of the Executive providing a Non-Renewal Notice under
Section 1, one year from the date of termination plus such
additional period (which additional period may not exceed one
year) for as long as the Company in its sole discretion pays,
during any such additional period, the Executive the Annual Base
Salary in accordance with its customary practices for paying
executive salary, provided that the Company shall notify the
Executive of the Company's intention not later than 60 days prior
to the expiration of the Employment Period if the Company intends
to pay the Executive as aforesaid during such additional period.
(d) The Executive covenants and agrees that until the expiration of
his covenants set out in Sections 9(a) and (b), he shall use his reasonable best
efforts to ensure that any and all current and future opportunities relating to
the telecommunications businesses and electronic commerce business of the
Company and its Affiliates and any businesses ancillary thereto shall be carried
out through the Company and its Affiliates.
(e) The foregoing covenants are given by the Executive acknowledging
that he has specific knowledge of the affairs of the Company and its Affiliates.
(f) The Executive acknowledges and agrees that the nature of the
Confidential Information to which he will have access during his employment by
the Company or any Affiliate thereof would make it difficult, if not impossible,
for him to perform in a similar capacity for a Competitive Business within the
two year period following his termination for any reason from the Company,
without disclosing or utilizing the Confidential Information and that if he were
to perform in a similar capacity for a Competitive Business it would be
inevitable that he would disclose and/or use Confidential Information.
(g) The Executive acknowledges that during and limited only to the
two year period following his termination for any reason from the Company,
violations of the provisions of Section 6 or 9 will cause immediate and
irreparable harm to the Company, entitling the Company to an injunction in or by
a court of competent jurisdiction or arbitration in addition to any other
remedies the Company may have at law or in equity, including recovery of
reasonable attorneys' fees and costs incurred by the Company in enforcing the
provisions of Section 6 or 9. In the event that any covenant contained in
Section 9 or portion of any such covenant should be unenforceable or be declared
invalid for any reason whatsoever, such unenforceability or invalidity shall not
affect the enforceability or validity of the remaining portions of the covenants
and such unenforceable or invalid portions shall be severable from the remainder
of this Agreement. The Executive hereby acknowledges and agrees that, during and
limited only to the two year period following his termination for any reason
from the Company, all restrictions contained in this Section 9 are reasonable
and valid and all defenses to the strict enforcement thereof by the Company and
are hereby waived by him.
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(h) Nothing in Section 9 shall be deemed to prevent or prohibit the
Executive from making investments in his personal capacity unless such
investments are of a type that may conflict with the efficient performance of
his duties or with any of his obligations to the Company or any Affiliate
thereof; provided further that nothing contained herein shall preclude the
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Executive from purchasing or owning equity interests in any Person engaged in a
Competitive Business whose shares are traded on a recognized stock exchange or
over-the-counter market, so long as the Executive's holdings therein do not
exceed five percent (5%) of the issued and outstanding capital of the Person in
question.
(i) The Executive acknowledges and agrees that he has received good
and valuable consideration in exchange for his covenants and obligations under
this Agreement.
10. Effect of Agreement on Other Benefits. The existence of this
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Agreement shall not prohibit or restrict the Executive's entitlement to full
participation in the executive compensation, employee benefit and other plans or
programs in which senior executives of the Company are eligible to participate.
11. Miscellaneous.
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(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF NEW YORK WITHOUT REFERENCE TO PRINCIPLES OF CONFLICT OF LAWS.
The captions of this Agreement are not part of the provisions hereof and shall
have no force or effect. Whenever the terms "hereof", "hereby", "herein", or
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words of similar import are used in this Agreement they shall be construed as
referring to this Agreement in its entirety rather than to a particular section
or provision, unless the context specifically indicates to the contrary. Any
reference to a particular "Section" or "paragraph" shall be construed as
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referring to the indicated section or paragraph of this Agreement unless the
context indicates to the contrary. The use of the term "including" herein shall
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be construed as meaning "including without limitation." This Agreement may not
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be amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive: Mr. Jorge Escalona
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54 Skyline Drive
Morristown, NJ 07960
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If to the Company: GlobeNet Communications
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Group Limited
2 Carter's Bay Road, Southside
St. David's DD BX
Bermuda
Attn: Office of General Counsel
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notices and communications shall be effective
when actually received by the addressee.
(c) If any provision of this Agreement is held to be illegal, invalid
or unenforceable under present or future laws effective during the term of this
Agreement, such provision shall be fully severable; this Agreement shall be
construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a portion of this Agreement; and the remaining provisions of
this Agreement shall remain in full force and effect and shall not be affected
by the illegal, invalid or unenforceable provision or by its severance from this
Agreement. Furthermore, in lieu of such illegal, invalid or unenforceable
provision there shall be added automatically as part of this Agreement a
provision as similar in terms and scope to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid and enforceable.
(d) The Company shall obtain and maintain a director's and officer's
liability insurance policy during the term of the Executive's employment
covering the Executive on commercially reasonable terms, and the amount of
coverage shall be reasonable in relation to the Executive's position and
responsibilities hereunder; provided, however, that such coverage may be reduced
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or eliminated to the extent that the Company reduces or eliminates coverage for
its directors and executives generally.
(e) The Company may withhold from any amounts payable under this
Agreement such federal, state or local taxes as shall be required to be withheld
pursuant to any applicable law or regulation.
(f) The Executive's or the Company's failure to insist upon strict
compliance with any provision of this Agreement or the failure to assert any
right the Executive or the Company may have hereunder, shall not be deemed to be
a waiver of such provision or right or any other provision or right of this
Agreement.
(g) The Executive acknowledges that money damages would be both
incalculable and an insufficient remedy for a breach of Section 6 or 9 by the
Executive and that any such breach would cause the Company irreparable harm.
Accordingly, the Company, in addition to any other remedies at law or in equity
it may have, and shall be entitled, without the requirement of posting of bond
or other security, to equitable relief, including injunctive relief and specific
performance, in connection with a breach of Section 6 or 9 by the Executive.
The Company shall be entitled to obtain such remedies from any court of
competent jurisdiction on a provisional basis pending the resolution of
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a Dispute involving an alleged breach of Section 6 or 9, and without first
obtaining a provisional award authorizing such remedies from an arbitral panel.
(h) The provisions of this Agreement constitute the complete
understanding and agreement between the parties with respect to the subject
matter hereof.
(i) This Agreement may be executed in two or more counterparts.
(j) (i) The Executive and the Company shall endeavor initially to
resolve amicably any dispute, difference, claim, or controversy arising out of
or relating to this Agreement, or the breach thereof (a "Dispute") first by
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negotiation. The party claiming the existence of a Dispute shall provide
written notice to the other party specifying the nature and basis of the
Dispute. In the event that no agreement is reached within 30 days after notice
of the existence of a Dispute has been provided, either party shall have the
right to have such Dispute determined by arbitration as provided in this Section
11(j).
(ii) Any and all Disputes that are not resolved through
negotiation as set forth above shall be finally settled in a binding arbitration
administered by the American Arbitration Association under its Commercial
Arbitration Rules then in effect. The place of arbitration shall be New York,
New York. If the parties are unable to agree on the appointment of a single
arbitrator to conduct the arbitration within 20 days after the claimant has
filed its demand for arbitration, then the arbitration shall be conducted by a
panel of three arbitrators, appointed as follows: The Company and the Executive
each shall appoint one arbitrator, and the two arbitrators so appointed shall
appoint the third arbitrator, who shall chair the panel. No arbitrator may be
affiliated, associated, or related to the Company, any Affiliate, employee or
executive of the Company, or the Executive in any manner whatsoever.
(iii) The award of the arbitrators shall be final and binding,
and judgment upon any such award may be entered by any court of competent
jurisdiction. The arbitrators shall have no authority to award damages in excess
of compensatory damages, and each party hereby irrevocably waives any right to
recover such non-compensatory damages (including exemplary damages, treble
damages, and any other penalty or type of punitive damages) with respect to any
Dispute arising hereunder. Each party shall bear such party's own expenses
related to any arbitration, but the parties shall share equally the expenses of
the arbitration tribunal and the AAA.
(k) This Section 11 and Sections 4, 5, 6, 7 and 9 of this Agreement
shall survive the termination of this Agreement and termination of this
Agreement shall not release any party hereto from any liability arising out of
its breach of this Agreement prior to termination.
(l) The Executive represents and warrants to the Company that, to the
best of his personal knowledge and belief, neither the execution and delivery of
this
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Agreement, his commencement of employment hereunder nor the performance of his
duties hereunder conflicts with any contractual commitment on his part owed to
any third party or violates or interferes with any rights of any third party. In
this regard, the Company has been provided a copy of the relevant provisions of
the Executive's agreement with AT&T dated September 1, 1999.
(m) The Company shall have the right to secure, in its own name or
otherwise, and at its own expense, life, disability, accident or other insurance
covering the Executive and the Executive shall have no right, title or interest
in or to such insurance. The Executive shall assist the Company in procuring
such insurance by submitting to reasonable examinations and signing such
applications and other instruments as may be required by the insurance carriers
to which applications is made for any such insurance.
(n) At the request of the Company, the Executive shall execute the
necessary documents to become a party to (i) the Amended and Restated
Securityholders' Agreement dated July 14, 1999, by and among the Company and
various other parties including various shareholders of the Company (the "SHA")
---
and (ii) the Registration Rights Agreement referred to therein.
(o) The Executive represents and warrants to the Company that he does
not hold any interest in any of the following New Investors (as that term is
defined in the Amended and Restated Securityholders' Agreement referred to in
the SHA): Boston Ventures Limited Partnership V, L.P., Kelso Investment
Associates VI, L.P., KEP VI, L.L.C., Providence Equity Partners III L.P.,
Providence Equity Operating Partners III L.P., Spectrum Equity Investor III,
L.P., SEI III Entrepreneurs' Fund, L.P., Spectrum III Investment Managers' Fund,
L.P., Sandler Capital Partners IV, L.P., or Sandler Capital Partners IV FTE,
L.P., and covenants that he will not acquire an interest in the foregoing New
Investors during the Employment Period.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand and,
pursuant to the authorization from the Board, the Company has caused this
Agreement to be executed in its name on its behalf, all as of the day and year
first above written.
EXECUTIVE
/s/ JORGE L. ESCALONA
---------------------
Jorge L. Escalona
GLOBENET COMMUNICATIONS
GROUP LIMITED
By: MICHAEL KEDAR
--------------
Name: Michael Kedar
Title: Chairman & Acting CEO
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Exhibit A
Attached to and made a part of that certain Executive Employment Agreement
dated effective as of March 3, 2000, between GlobeNet Communications Group
Limited and Jorge L. Escalona.
1. Annual Base Salary: $600,000 per calendar year (to be prorated in
------------------
respect of calendar year 2000), which shall be
increased annually at an amount at least equal to
CPI plus 2%.
2. Bonus: $250,000 per calendar year (to be prorated in
-----
respect of calendar year 2000 commencing as of
February 1st ), subject to approval by the Board.
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