This
Employment Agreement (the “ Agreement ”)
is made between Global Telecom & Technology, Inc., a Delaware
corporation (the “ Company ”), and Eric
Swank (the “ Executive ”), is entered
into as of February 2, 2009 and shall become effective
immediately upon approval of this Agreement by the Compensation
Committee of the Company’s Board of Directors (the “
Effective Date ”).
|
|
1.
|
|
Employment; Scheduled
Term . Subject to the terms and conditions
of this Agreement, Company agrees to employ Executive, and
Executive accepts employment and agrees to be employed by Company
during the time period commencing on the Effective Date and ending
on the termination of this Agreement as provided in Section 7
below. The obligations of Executive set forth in the Executive
Assignment of Inventions and Confidentiality Agreement referred to
in Section 6 below shall survive the Scheduled Term and shall
survive the termination of Executive’s employment, regardless
of the cause of such termination. Executive hereby represents and
warrants to Company that Executive is free to enter into and fully
perform this Agreement and the agreements referred to herein
without breach or violation of any agreement or contract to which
Executive is a party or by which Executive is bound.
|
|
|
|
|
|
|
|
2.
|
|
Duties
.
Executive shall serve
as Chief Financial Officer of Company with such duties and
responsibilities as may from time to time be assigned to Executive
by the Chief Executive Officer and the Board of Directors of
Company (the “ Board ”), commensurate
with and customarily assigned to Executive’s title and
position described in this sentence. The duties and services to be
performed by Executive under this Agreement are collectively
referred to herein as the “Services” .
Executive shall report directly to the Chief Executive Officer.
Executive agrees that to the best of his ability and experience he
shall at all times conscientiously perform all of the duties and
obligations assigned to him under the terms of this Agreement. At
Company’s option, it will be entitled to reasonable use of
Executive’s name in promotional, advertising and other
materials used in the ordinary course of its business without
additional compensation unless prohibited by law. Executive
initially shall report to the offices located in McLean, Virginia;
provided that Executive’s duties will include
reasonable travel , including but not limited to travel to
offices of Company, its subsidiaries and affiliates and current and
prospective customers as is reasonably necessary and appropriate to
the performance of Executive’s duties hereunder. Executive
will comply with and be bound by Company’s operating
policies, procedures, and practices from time to time in effect
during Executive’s employment.
|
|
|
|
|
|
|
|
3.
|
|
Exclusive Service
. During the term of
employment, Executive will not perform services for any other
entity if such service would be in conflict with the
Company’s business interests. Executive will apply his skill
and experience to the performance of his duties and advancing
Company’s interests in accordance with Executive’s
experience and skills. Accordingly, Executive shall not engage in
any outside work, business, consulting activity or render any
commercial or professional services, directly or indirectly, for or
on behalf of himself or any other person or organization, whether
for compensation or otherwise, if such services would be in
conflict with the Company’s business interests, except with
the prior written approval of Company and Executive shall otherwise
do nothing inconsistent with the performance of Executive’s
duties hereunder.
|
|
|
|
|
|
|
|
4.
|
|
Non-Competition and Other
Covenants
|
4.1
Non-Competition Agreement .
Beginning the Effective Date and continuing for so long thereafter
as Executive is employed by Company or a subsidiary or affiliate of
Company, and for one (1) year following the termination of
Executive’s employment with Company (collectively, the
“Restricted Period”), Executive will not, directly or
indirectly, individually or as an employee, partner, officer,
director or shareholder (except to the extent permitted in
Section 3 above) or in any other capacity whatsoever of or for
any person, firm, partnership, company or corporation other than
Company or its subsidiaries:
(a) Own,
manage, operate, sell, control or participate in the ownership,
management, operation, sales or control of or be connected in any
manner with any business engaged, in the geographical areas
referred to in Section 4.2 below, in the design, research,
development, marketing, sale, or licensing of managed data network
services that are substantially similar to or competitive with the
business of Company and any of its affiliates; or
(b) Recruit,
attempt to hire, solicit, or assist others in recruiting or hiring,
in or with respect to the geographical areas referred to in
Section 4.2 below, any person who is an employee of Company or
any of its subsidiaries or induce or attempt to induce any such
employee to terminate his employment with Company or any of its
subsidiaries.
4.2
Geographical Areas . The
geographical areas in which the restrictions provided for in this
Section 4 apply include all cities, counties and states of the
United States, and all other countries in which Company (or any of
its subsidiaries) are conducting business or are contemplating
conducting business at the time. Executive acknowledges that the
scope and period of restrictions and the geographical area to which
the restrictions imposed in this Section 4 applies are fair
and reasonable and are reasonably required for the protection of
Company and that this Agreement accurately describes the business
to which the restrictions are intended to apply. Executive
acknowledges that the covenants set forth in this Section 4
have been granted in consideration for his employment by the
Company.
4.3
Non-Solicitation of Customers . In
addition to, and not in limitation of, the non-competition
covenants of Executive set forth above in this Section 4,
Executive agrees with Company that, for the Restricted Period,
Executive will not, either for Executive or for any other person or
entity, directly or indirectly (other than for Company and any of
its subsidiaries or affiliates), solicit business from, or attempt
to sell, license or provide the same or similar products or
services as are then provided, or are then contemplated of being
provided, by Company or any subsidiary or affiliate of Company to
any customer of Company.
4.4
Non-Solicitation of Executives or Consultants
In addition
to, and not in limitation of, the non-competition covenants of
Executive set forth above in this Section 4, Executive agrees
with Company that, for the Restricted Period, Executive will not,
either for Executive or for any other person or entity, directly or
indirectly, solicit, induce or attempt to induce any employee,
consultant or contractor of Company or any affiliate of Company, to
terminate his or her employment or his, her or its services with,
Company or any subsidiary or affiliate of Company or to take
employment with another party.
4.5
Amendment to Retain Enforceability . It is
the intent of the parties that the provisions of this
Section 4 will be enforced to the fullest extent permissible
under applicable law. If any particular provision or portion of
this Section is adjudicated to be invalid or unenforceable, this
Agreement will be deemed amended to revise that provision or
portion to the minimum extent necessary to render it enforceable.
Such amendment will apply only with respect to the operation of
this paragraph in the particular jurisdiction in which such
adjudication was made.
4.6
Injunctive Relief .
Executive acknowledges that any breach of the covenants of this
Section 4 will result in immediate and irreparable injury to
Company and, accordingly, consents that the Company shall have the
right to seek injunctive relief and such other equitable remedies
for the benefit of Company as may be appropriate in the event such
a breach occurs or is threatened. The foregoing remedies will be in
addition to all other legal remedies to which Company may be
entitled hereunder, including, without limitation, monetary
damages.
4.7
Indemnification Except
with respect to breaches of the Agreement, the Company will
indemnify and hold Executive harmless, to the fullest extent
allowed by applicable law, for any and all claims brought by a
third party which result from Executive’s employment with the
Company, including payment of legal costs and reasonable
attorneys’ fees.
|
5.
|
|
Compensation and
Benefits
|
5.1
Salary . During
the term of this Agreement, Company shall pay Executive an initial
salary of $200,000 per annum. Executive’s salary shall be
payable as earned at Company’s customary payroll periods in
accordance with Company’s customary payroll practices.
Executive’s salary shall be subject to review and adjustment
in accordance with Company’ customary practices concerning
salary review for similarly situated employees of Company or its
subsidiaries.
5.2
Benefits Executive
will be eligible to participate in Company’s employee benefit
plans of general application as they may exist from time to time,
including without limitation those plans covering pension and
profit sharing, executive bonuses, stock purchases, stock options,
and those plans covering life, health, and dental insurance in
accordance with the rules established for individual participation
in any such plan and applicable law. Executive will receive such
other benefits, including vacation, holidays and sick leave, as
Company generally provides to its employees holding similar
positions as that of Executive.
Executive
has received a summary of Company’s standard employee
benefits policies in effect a
|
