Exhibit 10.20
EMPLOYMENT
AGREEMENT
THIS AGREEMENT is
made and entered into as of the 15th day of September, 2005 by and
between Globix Corporation, a Delaware corporation (hereinafter
referred to as the “Company”), and Peter Stevenson, a
resident of the Commonwealth of Virginia (hereinafter referred to
as the “Executive”); Executive and Company, together
the “Parties” and each a
“Party”.
WHEREAS, the
Company wishes to retain the services of the Executive in the
capacities herein set forth, and the Executive wishes to be
employed by the Company in such capacities;
NOW, THEREFORE,
in consideration of the premises and the mutual covenants herein
contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Company and the Executive hereby agree as follows:
Section
1.
Employment. The Company hereby employs the Executive, and
the Executive hereby accepts employment with the Company, upon the
terms and conditions hereinafter set forth.
Section
2.
Term. Subject to the provisions for earlier termination
hereinafter set forth, the term of employment hereunder (the
“Term”) shall commence on the date hereof and shall
continue through December 31, 2006, unless otherwise extended in a
writing signed by both Parties. Such period or any subsequent
extension period is referred to herein as the “Employment
Period”.
Section
3.
Compensation. The Company agrees to provide the Executive
with salary and other benefits and perquisites for all services
rendered by the Executive under this Agreement in accordance with
Schedule A attached hereto.
Section
4.
Duties. Except as set forth in Section 6.3 hereof, during
the Term, the Executive shall serve as the President and Chief
Executive Officer of the Company, reporting to the Board of
Directors of the Company.
Section
5. Extent
of Service; Facilities. During the Term, the Executive shall be
required to devote substantially all of his professional time,
energy and attention to the business and affairs of the Company and
its subsidiaries, and to use his best efforts to perform faithfully
and efficiently his responsibilities hereunder. Executive will be
entitled to five (5) weeks of paid vacation and to paid
personal/sick/bereavement days in accordance with Company policy.
The Company will provide the Executive with a fully furnished
office, as well as all equipment, supplies and office personnel
reasonably required for the performance of his duties
hereunder.
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Section 6.
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Termination of
Employment.
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Section
6.1. For
Cause. The Company may immediately terminate the
Executive’s employment at any time during the Employment
Period for Cause, in which case the Company shall pay to the
Executive any compensation earned but not paid prior to the
effective date of such termination. Under such circumstances, such
payment will be in full and complete discharge of any and all
liabilities or obligations of the Company to the Executive
hereunder, and the Executive will be entitled to no further
benefits under this Agreement. Further, all stock options that have
not vested will be deemed forfeited, and any stock options that
have vested but have not been exercised shall remain exercisable
for a period of 30 days following termination and, if not
exercised, shall be deemed forfeited. For purposes of this
Agreement, Cause shall mean: (i) the Executive’s conviction
of a felony or misdemeanor that has a material adverse effect upon
the business or reputation of the Company or any affiliate of the
Company; (ii) that the Company has determined that Executive has
committed an act constituting a material breach of fiduciary duty,
gross negligence or gross misconduct, which has had an injurious
effect on the Company or its business; or (iii) Executive’s
willful failure or refusal to perform his assigned duties as
reasonably assigned by the Board of Directors or its authorized
designee, which willful refusal has had, or if continued, could
reasonably be expected to have, an injurious effect on the Company
or the subsidiaries of the Company or their respective businesses
or prospects, and which willful refusal has continued after the
Executive has received two written warnings, advising him of such
failure or refusal, and providing Executive with an opportunity to
resume performance in accordance with his assigned duties. Any
termination by the Company for Cause shall be communicated by
Notice of Termination to the Executive given in accordance with
Section 9.5 hereof. For purposes of this Agreement, a “Notice
of Termination” means a written notice which sets forth in
reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive’s employment
hereunder.
Section
6.2. Without
Cause. If the Company terminates the employment of the
Executive without Cause prior to the end of any Employment Period,
the Company shall pay to the Executive any compensation due through
the end of said Employment Period, plus reimbursement of any cost
incurred by the Executive under COBRA in connection with continuing
health care coverage for the Executive and the Executive’s
dependents through the end of said Employment Period. Under such
circumstances, such payment will be in full and complete discharge
of any and all liabilities or obligations of the Company to the
Executive hereunder, and the Executive will be entitled to no
further benefits under this Agreement. Additionally, all stock
options issued to the Executive that are scheduled to vest over the
180 day period following such termination shall immediately become
vested and exercisable. The Parties agree that, because there can
be no exact measure of the damage that would occur to the Executive
as a result of a termination by the Company of the
Executive’s employment without Cause, the payments and
benefits paid and provided pursuant to this
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Agreement will be
deemed to constitute, in part, liquidated damages and not a
penalty. Further, the Company agrees that any and all payments
required to be made to the Executive hereunder are not and shall
not be subject to any duty of mitigation.
Section
6.3
Voluntary Termination with Good Reason. The Executive may
terminate his employment for Good Reason, as set forth below, upon
the giving of thirty (30) days prior written notice to the Company.
In such event, the Executive shall be entitled to the identical
termination rights specified in Section 6.2 hereof. The Executive
may only terminate his employment for “Good Reason” in
the event of a material diminishment by the Company of the
Executive’s rights hereunder, including a reduction in base
salary, a material reduction in fringe benefits (except as such
shall apply generally to all of the Company’s senior
management), a relocation of the Executive’s principal place
of business by more than 60 miles, or another material breach of
this Agreement by the Company.
Section
6.4
Resignation without Good Reason. The Executive may resign
upon the giving of thirty (30) days prior written notice to the
Company (in which case the Company will have the right to relieve
the Executive, in whole or in part, of his duties under this
Agreement, without any reduction in the compensation to be paid to
the Executive through the termination date). It is understood that
in the case of Resignation without Good Reason, the Executive will
not be entitled to those termination rights specified in Section
6.2 hereof, and the sole obligation of the Company will be the
payment of compensation through the termination date as referred to
above.
Section
6.5 Death,
Illness or Incapacity. The Company has agreed to maintain the
life insurance policy specified in Schedule A hereof, and it is
therefore understood that if the Executive dies during the
Employment Period, the Executive’s estate shall receive no
further compensation pursuant to this Agreement. During any period
of disability, illness or incapacity during the Employment Period
which renders the Executive at least temporarily unable to perform
the services required hereunder for a period which does not exceed
forty-five (45) continuous days in any one-year period, the
Executive will receive the compensation payable under Schedule A of
this Agreement plus any pro rated bonus for such period, less any
benefits received by him under any disability insurance carried by
or provided by the Company. Upon the Executive’s permanent
disability (as defined below), the Executive will be subject to
termination as set forth below, and if so terminated the Company
will pay to the Executive any and all compensation (including Base
Salary, bonus and options) earned but not paid to the Executive
prior to the effective date of such termination and will not be
responsible for any additional payments hereunder. Notwithstanding
any such termination, the Executive will continue to receive any
disability benefits to which he may be entitled under any
disability income insurance which may be carried by or provided by
the Company from time to time.
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The term
“permanent disability” as used in this Agreement will
mean the inability of the Executive, as determined by the Board of
Directors of the Company, by reason of physical or mental
disability to perform the duties required of him under this
Agreement for a period of ninety (90) days in any one-year period.
Successive periods of disability, illness or incapacity will be
considered separate periods unless the later period of disability,
illness or incapacity is due to the same or related cause and
commences less than six months from the ending of the previous
period of disability. Upon such determination, the Board of
Directors may terminate the Executive’s employment under this
Agreement upon ten (10) days’ prior written notice. If any
determination of the Board of Directors with respect to permanent
disability is disputed by the Executive, the Parties hereto agree
to abide by the decision of a panel of three physicians. The
Executive and the Company will each appoint one member, and the
third member of the panel will be appointed by the other two
members. The Executive agrees to make himself available for and to
submit to examinations by such physicians as may be directed by the
Company. Failure to submit to any such examination will constitute
acceptance by the Executive of the determination made by the Board
of Directors.
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Section 7.
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Covenants of
Executive.
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Section
7.1
Executive Cooperation. The Executive agrees, in the exercise
of his fiduciary duties as officer and director, to assist and
cooperate with the Company in connection with the defense or
prosecution of any claim that may be made against or by the
Company, or in connection with any investigation or dispute or
claim of any kind involving the Company, except in each case a
dispute or claim brought by the Executive.
Section
7.2 Rights
and Remedies upon Breach. The Executive agrees that any breach
of this Agreement would cause irreparable harm to the Co