EXHIBIT 10.24
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into on
this 1st day of November, 2002, effective as of the date set forth in paragraph
2.1 below, and is by and between Terremark Worldwide, Inc., a Delaware
corporation (the "Company"), and Marvin Wheeler (hereinafter called the
"Executive").
RECITALS
A. The Executive possesses knowledge and skills which the Company
believes will be of substantial benefit to its operations and success, and the
Company desires to employ the Executive on the terms and conditions set forth
below, on its behalf or on behalf of one or more of its subsidiaries or
affiliates.
B. The Executive is willing to make his services available to the
Company and its subsidiaries and affiliates on the terms and conditions set
forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein, the parties agree as follows:
1. Employment.
1.1 Employment and Term. The Company hereby agrees to
employ the Executive, and the Executive hereby agrees to serve the Company, on
the terms and conditions set forth herein.
1.2 Duties of Executive. During the Term of Employment
under this Agreement, the Executive shall serve as the Senior Vice President of
Operations for the Company, shall diligently perform all services as may be
assigned to him by the Board (provided that, such services shall not materially
differ from the services currently provided by the Executive), and shall
exercise such power and authority as may from time to time be delegated to him
by the Board. The Executive shall devote his full time and attention to the
business and affairs of the Company, render such services to the best of his
ability, and use his best efforts to promote the interests of the Company. It
shall not be a violation of this Agreement for the Executive to (i) serve on
corporate, civic or charitable boards or committees, (ii) deliver lectures,
fulfill speaking engagements or teach at educational institutions, or (iii)
manage personal investments, so long as such activities do not significantly
interfere with the performance of the Executive's responsibilities to the
Company in accordance with this Agreement.
2. Term.
2.1 Commencement of Employment. The employment of the
Executive under this Agreement shall commence on the date set forth above (the
"Commencement Date").
2.2 Termination of Employment. The period during which
the Executive shall be employed by the Company pursuant to the terms of this
Agreement is sometimes referred to in this Agreement as the "Term of
Employment". The Executive's employment hereunder, and the Term of
Employment, shall terminate upon notice by either the Company or the Executive
in accordance with Section 5, below.
3. Compensation.
3.1 Base Salary. The Executive shall receive a base
salary at the annual rate of $175,000.00 (the "Base Salary") during the Term of
Employment, which such Base Salary payable in installments consistent with the
Company's normal payroll schedule, subject to applicable withholding and other
taxes. The Base Salary shall be reviewed, at least annually, for merit
increases and may, by action and in the sole discretion of the Board, be
increased at any time or from time to time.
3.2 Bonuses. During the Term of Employment, the
Executive shall be eligible to receive bonuses in such amounts and at such
times as the Board shall determine in its sold discretion.
4. Expense Reimbursement and Other Benefits.
4.1 Reimbursement of Expenses. Upon the submission of
proper substantiation by the Executive, and subject to such rules and
guidelines as the Company may from time to time adopt, the Company shall
reimburse the Executive for all reasonable expenses actually paid or incurred
by the Executive during the Term of Employment in the course of and pursuant
to the business of the Company. The Executive shall account to the Company in
writing for all expenses for which reimbursement is sought and shall supply to
the Company copies of all relevant invoices, receipts or other evidence
reasonably requested by the Company.
4.2 Compensation/Benefit Programs. During the term of
Employment, the Executive shall be entitled to participate in all medical,
dental, hospitalization, accidental death and dismemberment, disability, travel
and life insurance plans, and any and all other plans as are presently and
hereinafter offered by the Company to its executives, including savings,
pension, profit-sharing and deferred compensation plans, subject to the
general eligibility and participation provisions set forth in such plans.
4.3 Working Facilities. During the Term of Employment,
the Company shall furnish the Executive with an office, administrative
assistance and such other facilities and services suitable to his/her position
and adequate for the performance of his/her duties hereunder.
4.4 Stock Options. During the Term of Employment, the
Executive shall be eligible to be granted options (the "Stock Options") to
purchase common stock (the "Common Stock") of the Company under (and therefore
subject to all terms and conditions of) the Company's 2000 Stock Option Plan,
as amended, and any successor plan thereto (the "Stock Option Plan") and all
rules of regulation of the Securities and Exchange Commission applicable to
stock option plans then in effect. The number of Stock Options and terms and
conditions of the Stock Options shall be determined by the Committee appointed
pursuant to the Stock Option Plan, or by the Board of Directors of the Company,
in its sole discretion and pursuant to the Stock Option Plan.
4.5 Other Benefits. The Executive shall be entitled to
three weeks of vacation each calendar year during the Term of Employment,
(subject to the general eligibility provisions set forth in Company's personnel
policy), to be taken at such times as the Executive and the Company shall
mutually determine and provided that no vacation time shall interfere with the
duties required to be rendered by the Executive hereunder. Any vacation time
not taken by Executive during any calendar year may not be carried forward into
any succeeding calendar year, except in accordance with general Company policy
in
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effect from time to time. The Executive shall receive such additional benefits,
if any, as the Board of the Company shall from time to time determine.
5. Termination.
5.1 Termination for Cause. The Company shall at all times have the
right, without notice, to terminate the Term of Employment, for Cause.
For purposes of this Agreement, the term "Cause" shall mean (i) an
action or omission of the Executive which constitutes a willful and
material breach of, or failure or refusal (other than by reason of his
disability) to perform his duties under, (ii) fraud, embezzlement,
misappropriation of funds or breach of trust in connection with his
services hereunder, (iii) conviction of a felony or any other crime
which involves dishonesty or a breach of trust, (iv) gross negligence
in connection with the performance of the Executive's duties hereunder,
(v) insubordination or other refusal to adhere to Company policy or the
instructions of a superior, or (vi) negligence by commission or
omission that results in injury or damage to the Company. Any
termination for Cause shall be made in writing to the Executive, which
notice shall set forth in detail all acts or omissions upon which the
Company is relying for such termination. Upon any termination pursuant
to this Section 5.1, the Company shall only be obligated to pay to the
Executive his Base Salary to the date of termination. The Company shall
have no further liability hereunder (other than for reimbursement for
reasonable business expenses incurred prior to the date of termination,
subject, however, to the provisions of Section 4.1).
5.2 Disability. The Company shall at all times have the right, upon
written notice to the Executive, to terminate the Term of Employment,
if the Executive shall become entitled to benefits under the Company's
group disability policy or any individual disability policy then in
effect, or, if the Executive shall as the result of mental or physical
incapacity, illness or disability, become unable to perform his
obligations hereunder for a period of 90 days in any 12-month period.
The Company shall have sole discretion based upon competent medical
advice to determine whether the Executive continues to be disabled.
Upon any termination pursuant to this Section 5.2, the Company shall
(i) pay to the Executive any unpaid Base Salary through the effective
date of termination specified in such notice, (ii) pay to the Executive
a severance payment equal to one month of the Executive's Base Salary
at the time of the termination of the Executive's employment with the
Company. The Company shall have no further liability hereunder (other
than for reimbursement for reasonable business expenses incurred prior
to the date of termination, subject, however to the provisions of
Section 4.1).
5.3 Death. Upon the death of the Executive during the Term of
Employment, the Company shall pay to the estate of the deceased
Executive any unpaid Base Salary through the Executive's date of death.
The Company shall have no further liability hereunder (other than for
reimbursement for reasonable business expenses incurred prior to the
date of the Executive's death, subject, however to the provisions of
Section 4.1).
5.4 Termination Without Cause. At any time the Company shall have
the right to terminate the Term of Employment by written notice to the
Executive. Upon any termination pursuant to this Section 5.4 (that is
not a termination under any of Sections 5.1, 5.2, 5.3, 5.5 or 5.6), the
Company shall (i) pay to the Executive any unpaid Base Salary through
the effective date of termination specified in such notice, (ii)
continue to pay the Executive's Base Salary for a period (the
"Continuation Period") of six (6) months from the effective date of
termination hereunder, provided, however, Executive shall have been
employed by Company for a period of at least one hundred eighty (180)
days to be eligible for such payment, (iii) continue to provide the
Executive with the benefits he/she was receiving under Sections 4.2 and
4.4 hereof (the "Benefits") through the end of the Continuation Period
in the manner and at such times as the Incentive Compensation or
Benefits otherwise would have been payable or
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provided to the Executive, provided, however, Executive shall have been
employed by Company for a period of at least one hundred eighty (180) days to
be eligible for such Benefits or payment of the cash value of such Benefits, as
set forth below. In the event that the Company is unable to provide the
Executive with any Benefits required hereunder by reason of the termination of
the Executive's employment pursuant to this Section 5.4, then the Company shall
pay the Executive cash equal to the value of the Benefit that otherwise would
have accrued for the Executive's benefit under the plan, for the period during
which such Benefits could not be provided under the plans. The Company's good
faith determination of the amount that would have been contributed or the value
of any Benefits that would have accrued under any plan shall be binding and
conclusive on the Executive. For this purpose, the Company may use as the value
of any Benefit the cost to the Company of providing that Benefit to the
Executive. Further, the vesting of the Executive's Stock Options, if any, shall
be subject to the terms of the Stock Option Plan. The Company shall have no
further liability hereunder (other than for (x) reimbursement for reasonable
business expenses incurred prior to the date of termination, subject, however,
to the provisions of Section 4.1, and (y) payment of compensation for unused
vacation days accumulated in accordance with the Company's then general policy).
5.5 Termination by Executive.
(a) The Executive shall at all times have the right,
upon sixty (60) days written notice to the Company, to terminate the Term of
Employment.
(b) Upon termination of the Term of Employment pursuant
to this Section 5.5 (that is not a termination under Section 5.6) by the
Executive without Good Reason, the Company shall pay to the Executive any
unpaid Base Salary through the effective date of termination specified in such
notice. The Company shall have not further liability hereunder (other than for
reimbursement for reasonable business expenses incurred prior to the date of
termination, subject, however, to the provisions of Section 4.1). At the
Company's sole option, upon receipt of notice from the Executive pursuant to
this Section, the Company may immediately terminate the Term of Employment, in
which case, in addition to the covenants set forth above, the Company shall pay
the Executive 60 days of Base Salary.
(c) Upon termination of the Term of Employment pursuant
to this Section 5.5 (that is not a termination under Section 5.6) by the
Executive for Good Reason, the Company shall pay to the Executive the same
amounts that would have been payable by the Company to the Executive under
Section 5.4 of this Agreement if the Term of Employment had been terminated by
the Company without Cause. The Company shall have no further liability
hereunder.
(d) For purposes of this Agreement, "Good Reason" shall
mean (i) the assignment to the Executive of any duties or responsibilities
inconsistent in any respect with the Executive's position or a similar position
in the Company or one of its subsidiaries, as contemplated by Section 1.2 of
this Agreement, or any other action by the Company which results in a
substantial and compelling diminution in such position, authority, duties or
responsibilities, excluding for this purpose an isolated, insubstantial and
inadvertent action not taken in bad faith and which is remedied by the Company
promptly after receipt of notice thereof given by the Executive; (ii) any
failure by the Company to comply with any of the provisions of Article 3 of
this Agreement, other than an isolated, insubstantial and inadvertent failure
not occurring in bad faith and which is remedied by the Company promptly after
receipt of notice thereof given by the Executive; (iii) the Company's requiring
the Executive to be based at any office or location outside of the area for
which Executive was originally hired to work except for travel reasonably
required in the performance of the Executive's responsibilities. For purposes of
this Section 5.5(d), any good faith determination of "Good Reason" made by the
Board shall be conclusive.
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5.6 Change in Control of the Company.
(a) In the event that (i) a Change in Control (as defined
in paragraph (b) of this Section 5.6) in the Company shall occur during the
Term of Employment, and (ii) within one year after the date of the Change in
Control, either (x) the Term of Employment is terminated by the Company without
Cause, pursuant to Section 5.4 hereof or (y) the Executive terminates the Term
of Employment for Good Reason, the Company shall (1) pay to the Executive any
unpaid Base Salary through the effective date of termination, (2) pay to the
Executive as a single lump sum payment, within 30 days of the termination of his
employment hereunder, a lump sum payment equal to the sum of (x) two times the
sum of Executive's annual Base Salary, Incentive Compensation, and the value of
the annual fringe benefits (based upon their cost to the Company) required to be
provided to the Executive under Sections 4.2 and 4.4 hereof, for the year
immediately preceding the year in which his employment terminates, plus (y) the
value of the portion of his benefits under any savings, pension, profit sharing
or deferred compensation plans that are forfeited under those plans by reason of
the termination of his employment hereunder. The Company shall have no further
liability hereunder (other than for (1) reimbursement for reasonable business
expenses incurred prior to the date of termination, subject, however, to the
provisions of Section 4.1, and (2) payment of compensation for unused vacation
days that have accumulated during the calendar year in which such termination
occurs).
(b) For purposes of this Agreement, the term "Change in
Control" shall mean:
(i) Approval by the shareholders of the Company
of (x) a reorganization, merger, consolidation or other form of corporate
transaction or series of transactions, in each case, with respect to which
persons who were the shareholders of the Company immediately prior to such
reorganization, merger or consolidation or other transaction do not,
immediately thereafter, own more than 50% of the combined voting power entitled
to vote generally in the election of directors of the reorganized, merged or
consolidation company's then outstanding voting securities, in substantially
the same proportions as their ownership immediately prior to such
reorganization, merger, consolidation or other transaction, or (y) a
liquidation or dissolution of the Company or (z) the sale of all or
substantially all of the assets of the Company (unless such reorganization,
merger, consolidation or other corporate transaction, liquidation, dissolution
or sale is subsequently abandoned);
(ii) the acquisition (other than the Company)
by any person or "group", within the meaning of Section 13(d)(3) or 14(d)(2)
of the Securities Exchange Act, of more than 30% of either the then outstanding
shares of the Company's Common Stock or the combined voting power of the
Company's then outstanding voting securities entitled to vote generally in the
election of directors (hereinafter referred to as the ownership of a
"Controlling Interest") excluding, for this purpose, any acquisitions by (1) the
Company or its Subsidiaries, (2) any person, entity or "group" that as of the
Commencement Date of this Agreement owns beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Securities Exchange Act) of a
Controlling Interest or (3) any employee benefit plan of the Company or its
Subsidiaries.
(iii) The resignation of Manuel D. Medina as both
Chairman and CEO of the Company, his death, or his absence from the day to day
business affairs of the Company for more than 90 consecutive days due to
disability or incapacity.
5.7 Resignation. Upon any notice or termination of employment
pursuant to this Article 5, the Executive shall automatically and without
further action be deemed to have resigned as an
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officer, and if he or she was then serving as a director of the Company, as a
director, and if required by the Board, the Executive hereby agrees to
immediately execute a resignation letter to the Board.
5.8. Survival. The provisions of this Article 5 shall survive
the termination of this Agreement, as applicable.
6. Restrictive Covenants
6.1 Non-competition. At all times while the Executive is
employed by the Company and for a one year period after the termination of the
Executive's employment with the Company for any reason (other than by the
Company without Cause (as defined in Section 5.1 hereof) or by the Executive
for Good Reason (as defined in Section 5.5(d) hereof)), the Executive shall not,
directly or indirectly, engage in or have any interest in any sole
proprietorship, partnership, corporation or business or any other person or
entity (whether as an employee, officer, director, partner, agent, security
holder, creditor, consultant or otherwise) that directly or indirectly (or
through any affiliated entity) engages in competition with the Company (based on
the business in which the Company was engaged or was actively planning on being
engaged as of the date of termination of the Employee's employment and in
the geographic areas in which the Company operated or was actively planning on
operating as of date of termination of the Employee's employment); provided that
such provision shall not apply to the executive's ownership of: Common Stock of
the Company or the acquisition by the Executive, solely as an investment,
of securities of any issuer that is registered under Section 12(b) or 12(g) of
the Securities Exchange Act of 1934, as amended, and that are listed or admitted
for trading on any United States national securities exchange or that are quoted
on the National Association of Securities Dealers Automated Quotations System,
or any similar system or automated dissemination of quotations of securities
prices in common use, so long as the Executive does not control, acquire a
controlling interest in or become a member of a group which exercises direct or
indirect control or, more than five percent of any class of capital stock of
such corporation.
6.2 Nondisclosure. The Executive shall not at any time divulge,
communicate, use to the detriment of the Company or for the benefit of any other
person or persons, or misuse in any way, any Confidential Information (as
hereinafter defined) pertaining to the business of the Company. Any Confidential
Information or data now or hereafter acquired by the Executive with respect to
the business of the Company (which shall include, but not be limited to,
information concerning the Company's financial condition, prospects, technology,
customers, suppliers, sources of leads and methods of doing business) shall be
deemed a valuable, special and unique asset of the Company that is received by
the Executive in confidence and as a fiduciary, and Executive shall remain a
fiduciary to the Company with respect to all of such information. For purposes
of this Agreement, "Confidential Information" means information disclosed to the
Executive or known by the Executive as a consequence of or through his
employment by the Company (including information conceived, originated,
discovered or developed by the Executive) prior to or after the date hereof, and
not generally known, about the Company or its business. Notwithstanding the
foregoing, nothing herein shall be deemed to restrict the Executive from
disclosing Confidential Information to the extent required by law.
6.3 Nonsolicitation of Employees and Clients. At all times
while the Executive is employed by the Company and for a two (2) year period
after the termination of the Executive's employment with the Company for any
reason, the Executive shall not, directly or indirectly, for himself or for any
other person, firm, corporation, partnership, association or other entity (a)
employ or attempt to employ or enter into any contractual arrangement with any
employee or former employee of the Company, unless such employee or former
employee has not been employed by the Company for a period in excess of six
months, and/or (b) call on or solicit any of the actual or targeted prospective
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clients of the Company on behalf of any person or entity in connection with any
business competitive with the business of the Company, nor shall the Executive
make known the names and addresses of such clients or any information relating
in any manner to the Company's trade or business relationships with such
customers, other than in connection with the performance of Executive's duties
under this Agreement.
6.4 Ownership of Developments. All copyrights, patents, trade
secrets, or other intellectual property rights associated with any ideas,
concepts, techniques, inventions, processes, or works of authorship developed
or created by Executive during the course of performing work for the Company or
its clients (collectively, the "Work Product") shall belong exclusively to the
Company and shall, to the extent possible, be considered a work made by the
Executive for hire for the Company within the meaning of Title 17 of the United
States Code. To the extent the Work Product may not be considered work made by
the Executive for hire for the Company, the Executive agrees to assign, and
automatically assign at the time of creation of the Work Product, without any
requirement of further consideration, any right, title, or interest the
Executive may have in such Work Product. Upon the request of the Company, the
Executive shall further actions, including execution and delivery of
instruments of conveyance, as may be appropriate to give full proper effect to
such assignment.
6.5 Books and Records. All books, records, and accounts relating in
any manner to the customers or clients of the Company, whether prepared by the
Executive or otherwise coming into the Executive's possession, shall be
exclusive property of the Company and shall be returned immediately to the
Company on termination of the Executive's employment hereunder or on the
Company's request at any time.
6.6 Definition of Company. Solely for purposes of this Article 6,
the term "Company" also shall include any existing or future subsidiaries of
the Company that are operating during the time periods described herein and any
other entities that directly or indirectly, through one or more intermediaries,
control, are controlled by or are under common control with the Company during
the periods described herein.
6.7 Acknowledgment by Executive. The Executive acknowledges and
confirms that (a) the restrictive covenants contained in this Article 6 are
reasonably necessary to protect the legitimate business interest of the
Company, and (b) the restrictions contained in this Article 6 (including
without limitation the length of the term of the provisions of this Article 6)
are not overbroad, overlong, or unfair and are not the result of overreaching,
duress or coercion of any kind. The Executive further acknowledges and
confirms that this full, uninhibited and faithful observance of each of the
covenants contained in this Article 6 will not cause him any undue hardship,
financial or otherwise, and that enforcement of each of the covenants contained
herein will not impair his ability to obtain employment commensurate with his
abilities and on terms fully acceptable to him or otherwise to obtain income
required for the comfortable support of him and his family and the satisfaction
of the needs of his creditors. The Executive acknowledges and confirms that his
special knowledge of the business of the Company is such as would cause the
Company serious injury or loss if he were to use such ability and knowledge to
the benefit of a competitor or were to compete with the Company in violation of
the terms of this Article 6. The Executive further acknowledges that the
restrictions contained in this Article 6 are intended to be, and shall be, for
the benefit of and shall be enforceable by, the Company's successors and
assigns.
6.8 Reformation by Court. In the event that a court of competent
jurisdiction shall determine that any provision of this Article 6 is invalid or
more restrictive than permitted under the governing law of such jurisdiction,
then only as to enforcement of this Article 6 within the jurisdiction of
such court, such provision shall be interpreted and enforced as if it provided
for the maximum restriction permitted under such governing law.
6.9 Extension of Time. If the Executive shall be in
violation of any provision of this Article 6, then each time limitation set
forth in this Article 6 shall be extended for a period of time equal to the
period of time during which such violation or violations occur. If the Company
seeks injunctive relief from such violation in any court, then the covenants set
forth in this Article 6 shall be extended for a period of time equal to the
pendency of such proceeding including all appeals by the Executive.
6.10 Survival. The provisions of this Article 6 shall
survive the termination of this Agreement, as applicable.
7. Injunction. It is recognized and hereby acknowledged by the
parties hereto that a breach by the Executive of any of the covenants contained
in Article 6 of this Agreement will cause irreparable harm and damage to the
Company, the monetary amount of which may be virtually impossible to ascertain.
As a result, the Executive recognizes and hereby acknowledges that the
Company shall be entitled to an injunction from any court of competent
jurisdiction enjoining and restraining any violation of any or all of the
covenants contained in Article 6 of this Agreement by the Executive or any of
his affiliates, associates, partners or agents, either directly or indirectly,
and that such right to injunction shall be cumulative and in addition to
whatever other remedies the Company may possess.
8. Assignment. Neither party shall have the right to assign or
delegate his rights or obligations hereunder, or any portion thereof, to any
other person.
9. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida.
10. Section 162(m) Limits. Notwithstanding any other provision of
this Agreement to the contrary, if and to the extent that any remuneration
payable by the Company to the Executive for any year would exceed the maximum
amount of remuneration that the Company may deduct for that year under Section
162(m) ("Section 162(m)") of the Internal Revenue Code of 1986, as amended (the
"Code"), payment of the portion of the remuneration for that year that would
not be so deductible under Section 162(m) shall, in the sole discretion of the
Board, be deferred and become payable at such time or times as the Board
determines that it first would be deductible by the Company under Section
162(m), with interest at the "short-term applicable rate" as such term is
defined in Section 1274(d) of the Code. The limitation set forth under this
Section 10 shall not apply with respect to any amounts payable to the Executive
pursuant to Article 5 hereof.
11. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and, upon its effectiveness, shall supersede all prior agreements,
understandings and arrangements, both oral and written, between the Executive
and the Company (or any of its affiliates) with respect to such subject matter.
This Agreement may not be modified in any way unless by a written instrument
signed by both the Company and the Executive.
12. Notices: All notices required or permitted to be given
hereunder shall be in writing and shall be personally delivered by courier,
sent by registered or certified mail, return receipt requested or sent by
confirmed facsimile transmission addressed as set forth herein. Notices
personally delivered, sent by facsimile or sent by overnight courier shall be
deemed given on the date of delivery and notices mailed in accordance with the
foregoing shall be deemed given upon the earlier of receipt by the addressee,
as evidenced by the return receipt thereof, or three (3) days after deposit in
the U.S. mail.
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Notice shall be sent (i) if to the Company, addressed to Terremark Worldwide,
Inc., 2601 S. Bayshore Drive, 9th Floor, Miami, Florida 33133, Attn: Brian K.
Goodkind, Executive Vice-President and Chief Operating Officer, and (ii) if to
the Executive, to his address as reflected on the payroll records of the
Company, or to such other address as either party hereto may from time to time
give notice of to the other.
13. Benefits: Binding Effect. This Agreement shall be for the benefit
of and binding upon the parties hereto and their respective heirs, personal
representatives, legal representatives, successors and, where applicable,
assigns, including, without limitation, any successor to the Company, whether by
merger, consolidation, sale of stock, sale of assets or otherwise.
14. Severability. The invalidity of any one or more of the words,
phrases, sentences, clauses or sections contained in this Agreement shall not
affect the enforceability of the remaining portions of this Agreement or any
part thereof, all of which are inserted conditionally on their being valid in
law, and, in the event that any one or more of the words, phrases, sentences,
clauses or sections contained in this Agreement shall be declared invalid, this
Agreement shall be construed as if such invalid word or words, phrase or
phrases, sentence or sentences, clause or clauses, or section or sections had
not been inserted. If such invalidity is caused by length of time or size of
area, or both, the otherwise invalid provision will be considered to be
reduced to a period or area which would cure such invalidity.
15. Waivers. The waiver by either party hereto of a breach or violation
of any term or provision of this Agreement shall not operate nor be construed as
a waiver of any subsequent breach or violation.
16. Damages. Nothing contained herein shall be construed to prevent the
Company or the Executive from seeking and recovering from the other damages
sustained by either or both of them as a result of its or his breach of any term
or provision of this Agreement. In the event that either party hereto brings
suit for the collection of any damages resulting from, or the injunction of any
action constituting, a breach of any of the terms or provisions of this
Agreement, then the party found to be at fault shall pay all reasonable court
costs and attorneys' fees of the other.
17. Section Headings. The section headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
18. No Third Party Beneficiary. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give any person
other than the Company, the parties hereto and their respective heirs, personal
representatives, legal representatives, successors and assigns, any rights or
remedies under or by reason of this Agreement.
19. Indemnification. The indemnification obligations of the Company to
Executive shall be in accordance with the Company's standard indemnity
agreement.
20. Attorneys' Fees. In the event of any litigation arising out of or
in any way related to this Agreement, the prevailing party shall be entitled to
an award of reasonable attorneys' fees and costs incurred in connection
therewith.
21. Controlling Agreement. This Agreement shall supercede, replace and
be considered a novation of any prior agreements, contracts, offer letters, oral
promises and the like regarding compensation, employment, benefits or any other
subject addressed herein.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
COMPANY:
TERREMARK WORLDWIDE, INC.
By: /s/ Brian K. Goodkind
-------------------------------------
Name: Brian K. Goodkind
Title: Chief Operating Officer
EXECUTIVE:
/s/ Marvin Wheeler
-----------------------------------------
Name: Marvin Wheeler
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