Exhibit 10.1
DATED as of April 1, 2006
EMPLOYMENT AGREEMENT
METROMEDIA INTERNATIONAL
TELECOMMUNICATIONS SERVICES, INC.
AND
DAVID LEE
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DATED AS OF April 1, 2006
PARTIES
(1) Metromedia
International
Telecommunications
Services, Inc., a Delaware
corporation,
with its principal office at 8000 Tower Point Drive,
Charlotte, NC 28227 (the "Company"); and
(2) David Lee, a citizen of the United
Kingdom, residing at Copper Beeches
Field Road,
Stroud,
England
GL5 2JA, passport (1) 740130692 (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 April 1,
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;
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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 Gr
