Exhibit 10.1
DATED as of April 1, 2006
EMPLOYMENT AGREEMENT
METROMEDIA INTERNATIONAL TELECOMMUNICATIONS SERVICES, INC.
AND
▇▇▇▇▇ ▇▇▇
Exhibit 10.1
DATED AS OF April 1, 2006
PARTIES
(1) Metromedia International Telecommunications Services, Inc., a Delaware
corporation, with its principal office at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Company"); and
(2) ▇▇▇▇▇ ▇▇▇, a citizen of the United Kingdom, residing at Copper Beeches
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, passport (▇) ▇▇▇▇▇▇▇▇▇ (the
"Employee").
INTERPRETATION
(1) In this Agreement, unless the context otherwise requires, the following
terms shall have the meanings set out below:
the Board the board of directors of the Company or the
board of directors of Metromedia International
Group, Inc., as the case may be (including any
committee of the Board);
the Commencement Date March 3, 2006;
Confidential Information shall have the meaning given in Section 7.2;
Designated Company shall have the meaning given in Section 1.3;
Documents documents, disks, memory, notebooks, tapes or any
other medium, whether or not eye-readable, on which
information may from time to time be recorded;
Group Company the Company and any company which directly or
indirectly controls, is controlled by, or is
under common control with the Company,
including without limitation, Metromedia
International Group, Inc., Metromedia
International Telecommunications Inc. ("MITI"),
Metromedia Georgia Holdings, Inc., and any of
their respective affiliates or subsidiaries;
Inventions shall have the meaning given in Section 8.2;
Key Employee any individual who is (or was in the 12 months
period prior to the Termination Date) employed
in either (a) an executive or management
capacity; or (b) a capacity in which he or she
has access to or obtained confidential
information, but (for the avoidance of doubt)
not including any employee whose duties are
purely administrative or clerical or who is
employed in a support capacity;
MIG Metromedia International Group, Inc.;
Net Salary shall mean the salary received by the Employee
pursuant to an employment agreement with an
individual Group Company or Designated Company
less any withholding taxes or other items
required to be deducted by such Group Company
or Designated Company pursuant to the laws of
the country in which he is rendering services.
The Employee hereby consents to the making of
all such deductions and agrees to repay to the
Company and/or any other Group Company or
Designated Company as applicable, promptly upon
demand any amount which the Company or such
other Group Company or Designated Company, as
the case may be, failed for any reason
whatsoever to deduct from any payment made to
the Employee;
Permitted Interest an interest in (i) any class of shares or other
securities of any company which are traded on a
recognized stock exchange which amounts to not
more than five percent of such class of issued
shares or securities or (ii) any regulated
mutual fund or authorized unit trust;
Place of Employment shall have the meaning given in Section 1.2;
Pre-Termination Period the period of six months immediately preceding
the Termination Date;
Prior Inventions shall have the meaning given in Section 8.1;
Supervisor the Chief Executive Officer of Metromedia
International Group, Inc.;
Term shall mean the term of this Agreement;
Termination Date the date of termination or expiration
of this Agreement howsoever occurring.
(2) The expressions "subsidiary" and "affiliate" have the meanings given to
them under the laws of the State of New York.
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(3) References to any legislation are to be construed as referring also to
any enactment or re-enactment thereof (whether before or after the date
hereof) and to any previous enactment which such enactment has replaced
(with or without amendment provided that the amendment does not change
the law as at the date hereof) and to any regulation or order made
thereunder.
OPERATIVE PROVISIONS
1 Title, Job Description, etc.
1.1 The Company shall employ the Employee and the Employee shall serve the
Company as its Vice President of Georgian Operations with the immediate
and exclusive duty being to serve as General Director of Magticom, Ltd.
The Company reserves the right to change the Employee's title and
duties from time to time.
1.2 The Employee shall be principally based at the offices of Magticom
Ltd., a subsidiary of Metromedia Georgia Holdings, Inc. located in
Tbilisi, Georgia ("Place of Employment") but shall be required to
attend and work at any location (whether within or outside the
Commonwealth of Independent States or the United States) on a
temporary basis as reasonably required of him from time to time.
1.3 The Company may require the Employee to enter into one or more separate
employment agreements with individual Group Companies, where this is
necessary to enable the Employee to more effectively perform services
for such Group Company (any such company a "Designated Company"). In
the event of any conflict between the terms of this Agreement and any
such other agreement, this Agreement shall control.
1.4 The hours of work of the Employee are not fixed but are the usual
working hours at the location at which the Employee is principally
based or, if applicable, at which he may be working and such additional
hours as may be necessary to enable him to properly discharge his
duties.
1.5 The terms of this Agreement shall include and the Employee shall be
bound by the MIG Corporate Policies Handbook, as it may be amended or
supplemented from time to time, except to the extent inconsistent with
this Agreement. In the event of any inconsistency between the terms of
such Corporate Policies and this Agreement, the terms of this Agreement
shall govern.
1.6 The Employee hereby acknowledges that, because his compensation is
calculated based on the U.S. Dollar, it is not subject to indexation,
cost of living, exchange rate or any such other adjustments.
1.7 The Employee represents and warrants that he is not a party to any
agreement, contract (whether of employment or otherwise) or
understanding which would in any way restrict or prohibit the Employee
from entering into this Agreement or performing any of his duties in
accordance with this Agreement.
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2 Period of Engagement
2.1 The Term shall commence on the Commencement Date and will continue
until terminated: (i) by either party giving to the other not less than
one month's notice in writing or (ii) pursuant to the provisions of
Section 12.1 hereof. If the Employee gives notice under this Agreement,
he must also simultaneously give notice to and terminate his employment
relationship with any other Group Company with which he has signed an
employment agreement.
2.2 Neither the Company nor any other Group Company shall be obliged to
provide work for the Employee at any time after notice of termination
of this Agreement shall have been given by (i) either Party pursuant to
Section 2.1 or (ii) the Company pursuant to Section 12.1, and, in the
event such notice is given, the Company may, in its discretion, take
any one or more of the following steps:
(a) require the Employee to comply with such conditions as
it may specify in relation to remaining at, or remaining
away from, the place(s) of business of the Company or any
other Group Company;
(b) assign the Employee to other duties; or
(c) withdraw any powers vested in, or duties assigned to,
the Employee.
3 Duties
3.1 During the term of this Agreement, in addition to the specific
assignments set forth in Schedule I hereto, the Employee shall have the
following duties and obligations:
(a) to serve the Company and other Group Companies by
performing such services and carrying out such duties as
may be assigned to him from time to time by his
Supervisor;
(b) to use his best endeavors at all times to represent
the Company and other Group Companies and to promote the
interests and welfare and maintain the goodwill of the
Company and other Group Companies, and not to do, and to
exercise all reasonable endeavors to prevent there being
done, anything which may be prejudicial or detrimental to
the Company or any other Group Company;
(c) to faithfully and diligently perform his duties and to
exercise and carry out such powers and functions as may
from time to time be vested in him;
(d) to devote the whole of his working time and the full
benefit of his professional knowledge, expertise and
skills to the proper performance of his duties (unless on
vacation as permitted by this Agreement or prevented by
ill health or accident);
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(e) to give (in writing if so requested) to his Supervisor
or such other person(s) as may be notified to him, such
reports, information and explanations regarding (i) the
affairs of the Company and/or any other Group Company, or
(ii) other matters relating to this Agreement as may be
usual or may be specifically required of him; and
(f) to comply with (i) any applicable Company policy
relating to dealings in securities of the Company or
securities of any other Group Company, (ii) all applicable
rules and regulations from time to time laid down by the
Company concerning its employees generally with
prospective effect only, and (iii) all lawful directions
given to him from time to time by the his Supervisor or
the Board.
3.2 Subject to the provisions of Section 3.1, the Employee shall have such
powers and responsibilities in conducting the business of the Company
and/or any other Group Company in the ordinary course as may from time
to time be delegated to the Employee. These powers and responsibilities
may be changed or withdrawn from time to time and such changes shall be
immediately communicated to the Employee.
4 Salary, Benefits, Expenses and Foreign Allowance
4.1 The Company shall pay the Employee for the proper performance of his
duties during the term of this Agreement a monthly salary of $19,166.67
($230,000 on an annualized basis) (the "Salary"), adjusted as set forth
in this Section 4.1. Any Net Salary or other compensation, including
compensation as a director, that the Employee receives from any other
Group Company or Designated Company, including but not limited to
Magticom, Ltd., with which the Employee enters into an employment
agreement as contemplated by Section 1.4, will be offset against the
Salary receivable under this Agreement, thereby reducing the Salary
payable under this Agreement by the amount received from such other
Group Company or Designated Company. Notwithstanding the foregoing,
performance bonuses, if any, paid by Magticom Ltd. to the Employee
pursuant to an employment agreement between the Employee and Magticom
Ltd. will not be offset against Salary.
If the Company gives notice to the Employee under Section 2.1 other
than for an event described in Section 12.1, the Company or MITI will
pay the Employee severance in the amount of US $230,000 offset for any
severance paid to the Employee by Magticom Ltd. or any other Group
Company or Designated Company in connection with the simultaneous
termination of his employment agreement with Magticom Ltd. or such
Group Company or Designated Company, as the case may be.
4.2 The Salary will:
(a) be payable in equal monthly installments in arrears by
not later than the last working day of each month;
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(b) be payable in lieu of any other fees or remuneration
of any description which the Employee might be entitled to
(or may in fact receive) from the Company (and the
Employee shall, at the discretion of the Board, either
waive his right to any such fees or remuneration or
deliver the same to the Company forthwith upon receipt);
and
(c) be subject to set-off by the Company from time to time
in respect of any liability of the Employee to the Company
or any other Group Company.
4.3 All payments to the Employee hereunder shall be subject to deduction
for withholding taxes or other items required to be deducted by an
employer pursuant to the laws of the country of which the Employee is a
citizen or resident and/or in which he is rendering services, as
applicable. The Employee hereby consents to the making of all such
deductions and agrees to repay to the Company and/or any other Group
Company as applicable, promptly upon demand any amount which the
Company or such other Group Company, as the case may be, failed for any
reason whatsoever to deduct from any payment made to the Employee.
4.4 The Employee shall be promptly reimbursed for all necessary and
reasonable business expenses he incurs in the performance of his duties
hereunder, including, without limitation, all business travel-related
expenses.
4.5 The Employee shall be eligible to receive awards of stock options under
an incentive stock option plan of MIG as may be determined by the Board
of MIG.
4.6 Except for the payment of Salary as described in Section 4.1, the
participation in the stock option plan as described in Section 4.6, the
payment of foreign living expenses as described in this Section 4.7 and
the payment of relocation expenses as described in Section 4.8 below,
the Employee shall not be entitled to any other compensation or
benefits from the Company during the term of this Agreement, including
benefits that are available to other employees of the Company or MITI.
For any period during the Term that the Company requires the Employee
to be domiciled in Tbilisi, Georgia, Company shall:
(a) shall pay the employee the amount of $1,500 per month
to cover the Employee's housing and other foreign living
expenses;
(b) shall reimburse the Employee, upon presentation of
appropriate documentation, for the Employee's medical
insurance, provided that such reimbursement shall not
materially exceed the cost incurred by the Company for
providing similar medical insurance;
(c) shall reimburse the Employee once every three months
of his employment hereunder, upon presentation of
appropriate documentation, for one round-trip coach class
airline ticket between Tbilisi and London.
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4.7 The Company shall not reimburse any expenses of the Employee in
connection with his relocation from Tbilisi, Georgia upon expiration of
the Term of this Agreement however occurring.
4.8 During the Term, the Company shall pay or otherwise offset the
Employee's personal tax obligations in respect of Salary and other
compensation payable hereunder in Georgia, plus the costs of making any
tax filings and returns of Georgia. To effect the foregoing provision,
the Company shall at its expense retain a tax specialist qualified in
Georgian taxes to prepare and file the Employee's Georgian tax return.
The Company shall promptly pay when due all actual Georgian taxes due
from the Employee for Salary and all other compensation hereunder,
including tax payments made to or on behalf of the Employee; provided,
however, that the Company shall not be required to pay any tax
penalties if the reason for the Company's failure to make timely
payments of Georgian taxes is attributable to the Employee's failure to
promptly provide the Company with the information needed to compute his
Georgian taxes. Any and all tax refunds received by the Employee from
the Georgian government in connection with such tax filings shall be
promptly returned by the Employee to the Company. At the end of the
Term, the Company shall, as described above, pay or otherwise offset
the Employee's personal tax obligations in Georgia in respect of Salary
and other compensation paid to him during the Term, but the Employee
shall be solely responsible for any and all personal tax obligations
incurred by him after the Term in Georgia or in any other tax
jurisdiction. For the avoidance of doubt, the Employee shall be solely
responsible for his personal taxes in the United Kingdom and in all
other tax jurisdictions.
5 Vacation and Holiday
A period of absence for vacation or holidays is not provided under this
Agreement. However, salary shall be paid for periods during which the
Employee performs no services on account of vacation, holidays and
personal days as shall be set forth in an employment agreement between
the Employee and a Designated Company.
6 Restrictions upon Other Activities
6.1. The Employee shall not (a) during the term of this Agreement carry on
or be concerned, engaged or interested directly or indirectly (whether
as a principal, shareholder, partner, financier, employee, consultant,
director, officer, agent or otherwise) in any trade or business other
than that of the Company or any other Group Company, and shall not
engage in any other activity which the Company reasonably considers
may impair his ability to perform his duties under this Agreement; and
(b) for a period of the greater of (i) six months following the
Termination Date and (ii) any period during which the Employee
receives remuneration hereunder following the Termination Date, carry
on or be concerned, engaged or interested directly or indirectly
(whether as a principal, shareholder, partner, financier, employee,
consultant, director, officer, agent or otherwise) in any trade or
business which is in competition with the business of the Company or
any other Group Company carried on at the Termination Date in any
country in which the Company or such Group Company (or any entity in
which such Group Company has a greater than 10% economic interest)
operates; provided that the foregoing shall not apply to the holding
of a Permitted Interest.
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6.2. The Employee shall not during the term of this Agreement and for a
period of six months thereafter (except in a purely social capacity,
for the legitimate business interests of his then-current employer or
with the prior written consent of the Board) make any contact, whether
formal or informal, written or oral, with any past, current or
prospective suppliers, customers or clients of the Company or any
other Group Company with whom the Employee has had business dealings
at any time during the term of this Agreement (including but not
limited to, for the purposes of setting up a competing business or
seeking employment).
6.3. The Employee shall not during the Term and for a period of six months
thereafter either on his own behalf or on behalf of any person, firm or
company:
(a) solicit, approach or deal with, offer goods or
services to, accept custom from, or entice away any
person, firm or company who was a client or customer of
the Company or any other Group Company during the term of
this Agreement, and with whom the Employee has been
actively engaged or involved by virtue of his duties
hereunder during the Pre-Termination Period; or
(b) solicit, approach or deal with, or offer goods or
services to, or entice away from the Company or any other
Group Company, or interfere with any person, firm or
company who was a supplier, sales agent or distributor of
the Company or any other Group Company during the term of
this Agreement and in each case with whom the Employee has
been actively engaged or involved by virtue of his duties
hereunder during the Pre-Termination Period;
provided that nothing contained in sub-sections (a) and (b) above shall
prohibit the Employee from carrying out any activities which are not in
direct competition with any part of the business of any Group Company
with which the Employee was involved in during the Pre-Termination
Period.
6.4 The Employee shall not during the term of this Agreement and for a
period of six months thereafter either on his own behalf or on behalf
of any person, firm or company:
(a) approach, solicit, hire or endeavor to entice away
from the Company or any other Group Company any Key
Employee of the Company or such Group Company, or
discourage from being employed by the Company or such
Group Company any person who, to the knowledge of the
Employee, is a prospective Key Employee of the Company or
such Group Company; or
(b) employ or procure another person to employ any such
person.
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6.5. The Employee (who acknowledges that, in the Term, he is likely to have
dealings with the clients, customers, suppliers and other contacts of
the Company and the other Group Companies) agrees that each of the
restrictions in this Section 6 is separate and distinct, is to be
construed separately from the other restrictions, and is reasonable as
regards its duration, extent and application for the legitimate
business interests of the Company and the other Group Companies.
However, in the event that any such restriction shall be found to be
void or unenforceable but would be valid and enforceable if some part
or parts of it were deleted or revised, the Employee agrees that such
restriction shall apply with such deletions and/or revisions as may be
necessary to make it valid and effective.
7 Confidential Information
7.1 "Confidential Information" is used herein to mean any information that
pertains to or is in any way connected with the Company or any Group
Company, including explicitly and without limitation any such
information created or discovered by the Employee during the Term.
Confidential Information shall include but not be limited to items set
forth in clauses (a) through (d) immediately following.
(a) Business plans, trade secrets, processes, formulas,
data, know-how, inventions, improvements, techniques,
plans, strategies, forecasts, contracts, agreements,
employee lists, customer lists and suppliers lists.
(b) Information and data pertaining to any aspect of the
Company's or any Group Company's developmental,
financial, technical, marketing, sales or operating
activities, or to the Company's or any Group Company's
organization, results, performance, costs, revenues,
procedures, processes, systems or employees.
(c) Computer programs and data bases and any information
pertinent to the design or operation of computer
programs and data bases acquired, developed, sold or
used by the Company or any Group Company or its
employees; and information or data pertinent to any
programming techniques or processes connected with
these computer programs or data bases.
(d) Documentation, samples, models or prototypes, or parts
thereof developed by or in conjunction with any
marketing, sales or operational program undertaken by
the Company or any Group Company.
Without limitation to the foregoing, information or data shall be
considered as Confidential Information in connection herewith whenever
the confidential or proprietary status of the information or data is
indicated orally or in writing by the disclosing party, or in any
context in which the disclosing party reasonably communicated or the
receiving party should reasonably have understood that the information
or data should be treated as confidential, whether or not the specific
words "confidential" or "proprietary" are used.
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7.2 The Employee acknowledges that:
(a) He holds a senior management position with the Company
and, in connection with his performance of the services
hereunder, he will acquire and make use of Confidential
Information;
(b) Such Confidential Information constitutes a unique and
valuable asset of the Company;
(c) Maintenance of the proprietary character of the
Confidential Information, to the full extent feasible, is
important to the Company;
(d) The Confidential Information is sufficiently secret as
to derive economic value from not being generally known to
others who could obtain economic value from its disclosure
or use; and
(e) The Confidential Information is currently the subject of
efforts by the Company to maintain its secrecy or
confidentiality.
7.3 In order to protect the Confidential Information, the Employee agrees
and covenants to perform as set forth in clauses (a) through (c)
immediately following.
(a) The Employee shall hold the Confidential Information
that is within his personal control in strictest
confidence and shall not use or disclose such
Confidential Information for so long as any such
Confidential Information may remain confidential,
secret or otherwise wholly or partially subject to
protection, except:
(i) In connection with his performance of the Services;
(ii) As required by a court of law, by any governmental
agency having supervisory authority over the business
of the Company or by any administrative or legislative
body (including a committee thereof) with apparent
jurisdiction to order the Employee to divulge, disclose
or make accessible such information, provided, however,
Employee shall promptly provide notice of a request for
same to the Company;
(iii) In confidence to an attorney for the purpose of
obtaining legal advice; or (iv) If such Confidential
Information becomes generally known to the public or
trade without Employee's breach of this Section 7.
7.4 The Employee shall take all reasonable and appropriate steps to:
(a) Safeguard any Confidential Information within his
personal control for so long as any such Confidential
Information may remain confidential, secret or otherwise
wholly or partially subject to protection, and
(b) Protect it against disclosure, misuse, espionage, loss
and theft. 7.5 The Employee shall return to the Company
upon termination of employment all materials then in
his possession, custody or control belonging to the
Company, including all Confidential Information that is
in tangible form and that has come into his possession
during his employment with the Company; provided,
however, that nothing shall prevent the Employee's
retaining personal correspondence files, personal
diaries, calendars and rolodexes or information
relating to compensation, equity positions or
reimbursement of expenses, information he reasonably
believes to be needed for tax purposes, or copies of
plans, programs, agreements and arrangements relating
to his employment, and other comparable materials.
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8 Rights to Inventions and Licenses
8.1 The Employee represents that there are no inventions, original works of
authorship, developments, improvements and trade secrets made by the
Employee prior to the Commencement Date (collectively referred to as
"Prior Inventions"), which belong solely to the Employee or belong to
the Employee jointly with another, which relate in any way to any of
the Company's actual or proposed businesses, products or research and
development and which are not assigned to the Company hereunder. If, in
the course of Employee's employment with the Company, the Employee
incorporates into a product, service or process of the Company a Prior
Invention owned by the Employee or in which the Employee has an
interest, the Company is hereby granted and shall have a non-exclusive,
royalty-free, irrevocable, perpetual, worldwide license (with the right
to sublicense) to make, have made, copy, modify, make derivative works
of, use, sell and otherwise distribute such Prior Invention as part of
or in connection with such product, service or process.
8.2 The Employee agrees to promptly make full written disclosure to the
Company and to hold in trust for the sole right and benefit of the
Company any and all inventions, original works of authorship,
developments, concepts, know-how, improvements and trade secrets,
whether or not patentable or subject to registration under copyright or
similar laws, which the Employee may solely or jointly conceive or
develop or reduce to practice, or cause to be conceived or developed or
reduced to practice, during the course of his employment with the
Company that:
(a) Relate at the time of conception or development to the
actual or demonstrably proposed business or research and
development activities of the Company;
(b) Result from or relate to any work performed for the
Company, whether or not during normal business hours;
(c) Are developed on Company work time; or
(d) Are developed through the use of Confidential Information
or the Company's equipment, software or other facilities or
resources (items (a) through (d) being collectively referred
to herein as "Inventions").
The Employee hereby assigns to the Company or its designee all of the
Employee's right, title and interest throughout the world in and to all
Inventions, and the Employee acknowledges that all Inventions are
"works made for hire" (to the greatest extent permitted by applicable
law) and are fully compensated by the Employee's Salary, unless
regulated otherwise by law.
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8.3 The Employee agrees to keep and maintain adequate and current written
records of all Inventions made by the Employee (solely or jointly with
others) during the course of his employment with the Company. The
records may be in the form of notes, sketches, drawings, flow charts,
electronic data or recordings, laboratory notebooks and any other
format. The records will be available to and remain the sole property
of the Company at all times. The Employee agrees not to remove such
records from the Company's place of business except as expressly
permitted by Company policy which may, from time to time, be revised at
the sole election of the Company for the purpose of furthering the
Company's business.
8.4 The Employee agrees to assist the Company or its designee, at the
Company's expense, in every way to secure the Company's rights in the
Inventions and any copyrights, patents, trademarks, mask-work rights,
moral rights or other intellectual property rights relating thereto in
any and all countries, including the disclosure to the Company of all
pertinent information and data with respect thereto, the execution of
all applications, specifications, oaths, assignments, recordings and
all other documents and instruments which the Company shall deem
necessary in order to apply for, obtain, maintain and transfer such
rights and in order to assign and convey to the Company, its
successors, assigns and nominees the sole and exclusive right, title
and interest in and to such Inventions and any copyrights, patents,
mask-work rights or other intellectual property rights relating
thereto. The Employee further agrees that the obligation to execute or
cause to be executed any such documents and instruments shall continue
after the termination of Employee's employment with the Company until
the expiration of the last such intellectual property right to expire
in any country of the world. If the Company is unable, because of the
Employee's mental or physical incapacity or unavailability for any
other reason, to secure the Employee's signature to apply for or to
pursue any application for any United States or foreign patents or
copyright registrations covering Inventions assigned to the Company as
set forth above, then the Employee hereby irrevocably designates and
appoints the Company (through its duly authorized officers and agents)
as the Employee's agent and attorney in fact, to act for and on the
Employee's behalf, to execute and file any such applications and to do
all other lawfully permitted acts to further the application for,
prosecution, issuance, maintenance or transfer of letters patent or
copyright registrations thereon with the same legal force and effect as
if originally executed by the Employee. The Employee hereby waives and
irrevocably quitclaims to the Company any and all claims, of any nature
whatsoever, which the Employee now or hereafter has for infringement of
any and all proprietary rights assigned to the Company.
9 Essential Covenants
The restrictions set out in Sections 6, 7 and 8 above are without
prejudice to any other fiduciary duties owed to the Company or any
other Group Company, whether express or implied. The Employee
acknowledges that the covenants and undertakings in Sections 6, 7 and 8
are made for the benefit of the Company and all other Group Companies,
and each of them shall be considered to be a third party beneficiary of
such covenants and undertakings and, in the event of any breach thereof
in relation to any such company, the applicable Group Company shall be
entitled to enforce such breached covenant or undertaking directly
against the Employee.
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10 Employee Conduct
The Employee hereby acknowledges that he has received, read and
understands and agrees to comply in all respects with the Company's
Corporate Policies Handbook, as it may be amended and supplemented from
time to time, to the extent not inconsistent with the terms of this
Agreement.
11 Remedies
The Employee expressly acknowledges that the remedy at law for any
breach of Sections 6, 7 and 8 may be inadequate and that upon any
breach or threatened breach, the Company or any other Group Company
affected by such breach shall be entitled as a matter of right to
injunctive relief in any court of competent jurisdiction, in equity or
otherwise, and to enforce the specific performance of the Employee's
obligations under those provisions without the necessity of proving the
actual damage or the inadequacy of a legal remedy. The rights conferred
by the preceding sentence shall not be exclusive of, but shall be in
addition to, any other rights or remedies which such company may have
at law, in equity or otherwise.
12 Termination
12.1 The Company may at any time terminate this Agreement with immediate
effect (or any such longer period of notice as the Company shall see
fit) by giving the Employee written notice in any of the following
events:
(a) If the Employee at the time the notice is given is
prevented by reason of incapacity from appearing at his
customary place of work and/or fully and properly
performing his duties, and has been so prevented for at
least a continuous period of 120 days or for an
aggregate period of at least 120 days (whether or not,
in either case, working days) in the preceding twelve
months;
(b) If the Employee shall have
(i) committed an act of fraud or dishonesty, been convicted
of a serious crime or been guilty of gross misconduct
(whether or not in any such case connected with the
employment hereunder),
(ii) committed any material breach of, or, after having been
given warning in writing, any repeated or continued
breaches of, any of his duties hereunder or any of his
express or implied obligations arising from this
Agreement, including refusing to comply with any proper
instructions given to him,
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(iii) been guilty of conduct or permitted or suffered to
occur events or actions by others tending to bring the
Company or any other Group Company into disrepute,
(iv) committed any act which materially and adversely
affects his ability to properly carry out his material
duties hereunder,
(v) failed, after having been given warning in writing and
an opportunity to cure, to have performed the material
part of his duties to the satisfaction of his
Supervisor, or
(vi) become bankrupt, claimed the benefit of any legislation
for the time being in force for the relief of insolvent
debtors, or proposed or made any arrangement or
composition with his creditors.
12.2 Upon termination of the Agreement however arising:
(a) The Employee shall as soon as practicable upon the request of the
Board:
(i) resign from all offices held by him in the Company or
any other Group Company and from all other
appointments or offices which he holds as nominee or
representative of the Company or any other Group
Company, and
(ii) terminate any powers of attorney, signatory powers or
other authorizations which he may have received from
the Company or any other Group Company, and, if he
fails so to do, the Company is irrevocably authorized
by the Employee to appoint some person in his name
and on his behalf to execute such documents and to do
such other things as are reasonably necessary to give
effect to such resignations and terminations.
(b) The Employee (or, if he shall be dead, of unsound mind or
bankrupt, his personal representatives or such other persons as
shall be appointed to administer his estate and affairs) shall
deliver to the Company in accordance with the directions of the
Board all computers, cell phones and other equipment belonging to
the Company or any other Group Company, and all keys, security
passes, credit cards, Documents and other property belonging to
or relating to the businesses or affairs of the Company or any
other Group Company, including all copies of all Company and
Group Company Documents containing confidential information (and
all copies, extracts or notes of any of the same) which may be in
his possession or under his control (or that of his personal
representatives or such other persons).
(c) The Employee shall cooperate to the extent requested by the Board
in the transfer of his duties and responsibilities to the person
designated as his successor.
(d) The Employee shall have no separate entitlement to any severance
or similar payment in respect of the termination of his
employment, however arising.
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12.3 The Employee shall have no claim against the Company or any other Group
Company:
(a) by reason of the merger, consolidation, continuation,
dissolution or liquidation of the Company, or the sale of all
or substantially all of the assets of the Company, provided
that the Employee shall have first been offered in writing a
new appointment with the successor or surviving company (or,
in the case of a Designated Company, with the Company or any
other Group Company) on terms no less favorable to him than
under this Agreement; or
(b) in relation to any provision of the charter or other
constituent documents of any Group Company, or any agreement,
plan or arrangement, which (i) has the effect of requiring the
Employee to sell or give up any shares, securities, options or
rights at any price, or (ii) causes any options or other
rights granted to him to become prematurely exercisable or
lapse.
12.4 The Board may at any time suspend the Employee pending the making and
completion of such investigation regarding the conduct of the Employee
as it thinks fit. While the suspension continues, unless specifically
otherwise provided in this Agreement, the Employee shall continue to
receive the Salary and other benefits set out in this Agreement. During
the period of suspension, neither the Company nor any other Group
Company shall be obliged to provide work to the Employee and the
Employee shall be required to comply with such conditions as the
Company may reasonably specify in relation to remaining at or remaining
away from the places of business of the Company and/or any other Group
Company. Nothing in this Section 12.4 shall be deemed to prevent the
Agreement from being terminated for cause pursuant to the terms of this
Agreement during or after any such investigation, whether on the
grounds of the matter being investigated or otherwise.
13 Notices
Notices by either party:
(a) must be in writing addressed to the Company or the Employee at
their respective addresses set out at the commencement of this
Agreement, or such other address as either may notify to the
other from time to time; and
(b) will be effectively served:
(i) on the day of receipt, where any hand-delivered
letter (including any delivery by recognized
overnight courier) or facsimile transmission is
received on a business day before or during normal
working hours;
(ii) on the following business day, where any
hand-delivered letter (including any delivery by
recognized overnight courier) or facsimile
transmission is received either on a business day
after normal working hours or on any other day; or
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(iii) on the fifth business day following the day of
mailing to an overseas address of any letter sent
registered or certified mail.
14 General
14.1 This Agreement is in substitution for all contracts between the Company
and any other Group Company and the Employee (whether written, oral or
governed by a course of dealings) prior to the date hereof, each of
which shall be deemed to have terminated with effect from the
Commencement Date.
14.2 Unless the context of this Agreement clearly requires otherwise, (a)
references to the plural include the singular, the singular the plural,
and the part the whole, and (b) references to one gender include all
other genders.
14.3 The section and other headings contained in this Agreement are for
reference purposes only and shall not control or affect the
construction of this Agreement or the interpretation thereof in any
respect.
14.4 The waiver, express or implied, by either party of any right under this
Agreement or any breach by the other shall not constitute or be deemed
a waiver of any other right or breach under this Agreement or of the
same right or breach on another occasion.
14.5 No amendment, change or addition to the terms of this Agreement shall
be effective or binding on either the Company or the Employee unless
reduced to writing and executed by both the Company and the Employee.
14.6 During the term of the Agreement, the Employee undertakes not to
disclose or communicate any terms of this Agreement to any other
employee of any Group Company or to any third party (other than for the
purpose of obtaining professional advice or other than as required by
applicable law, including the tax and securities laws and regulations
of the United States).
14.7 Unless otherwise provided to the contrary herein, any provision of this
Agreement that contemplates operation after the termination of the
Agreement shall apply notwithstanding termination of the Agreement
howsoever arising.
14.8 If any provision of this Agreement or application thereof to anyone
under any circumstances is adjudicated to be invalid or unenforceable
in any jurisdiction, such invalidity or unenforceability shall not
affect any other provisions or applications of this Agreement which can
be given effect without the invalid or unenforceable provision or
application and shall not invalidate or render unenforceable such
provision in any jurisdiction.
14.9 This Agreement is governed by and is to be construed in accordance with
the laws of the State of New York, U.S.A., without regard to the
conflict of laws principles thereof, and the Company and the Employee
hereby submit to the non-exclusive jurisdiction of the courts of New
York with respect to all matters relating to this Agreement.
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14.10 In order to keep and maintain accurate records relating to the
Employee's employment, it will be necessary for the Company to record,
keep and process personal data relating to the Employee. This data may
be recorded, kept and processed on computer and/or in hard copy form.
To the extent that it is reasonably necessary in connection with the
Employee's employment and the performance of the Company's
responsibilities as an employer, it may be necessary for the Company to
disclose this data to others.
By signing this Agreement, the Employee consents to the recording,
processing, use, disclosure, and transfer by the Company of personal
data relating to him. This does not affect the Employee's rights to
request copies of the personal data, information about how that data is
processed and the names of the parties to whom the information may be
properly disclosed in compliance with all applicable laws.
For all purposes required by law, the Company has nominated the chief
legal officer of the Company as its representative.
IN WITNESS WHEREOF the Parties have executed this Employment Agreement.
METROMEDIA INTERNATIONAL
TELECOMMUNICATIONS SERVICES, INC.
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇
President
▇▇▇▇▇ ▇▇▇
/S/ ▇▇▇▇▇ ▇▇▇
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17
