{"id":38576,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/change-in-control-agreement-global-crossing-ltd.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"change-in-control-agreement-global-crossing-ltd","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/change-in-control-agreement-global-crossing-ltd.html","title":{"rendered":"Change in Control Agreement &#8211; Global Crossing Ltd."},"content":{"rendered":"<pre>\n                          CHANGE IN CONTROL AGREEMENT\n\n\n          This Agreement, dated __________________________, 2000,  is made by\nand between Global Crossing Ltd., a Bermuda Corporation (as hereinafter defined,\nthe 'Corporation'), and _____________  __________ (the 'Executive').\n\n          WHEREAS, the Board (as hereinafter defined) recognizes that the\npossibility of a Change in Control (as hereinafter defined) of the Corporation\nexists and that such possibility, and the uncertainty it may cause, may result\nin the departure or distraction of key management employees of the Corporation;\nand\n\n          WHEREAS, the Executive is a key management employee of the Corporation\nor of a Subsidiary; and\n\n          WHEREAS, the Board has determined that the Corporation should\nencourage the continued employment of the Executive by the Corporation or a\nSubsidiary and the continued dedication of the Executive to his assigned duties\nwithout distraction as a result of the circumstances arising from the\npossibility of a Change in Control;\n\n          NOW THEREFORE, in consideration of the premises and the mutual\ncovenants herein contained, the Corporation and the Executive hereby agree as\nfollows:\n\n          1.   Defined Terms.  For purposes of this Agreement, the following\n               -------------                                                \nterms shall have the meanings indicated below:\n\n          (A)  'Board' shall mean the Board of Directors of the Corporation, as\n     constituted from time to time.\n\n          (B)  'Cause' for termination by the Corporation of the Executive's\n     employment shall mean (i) the willful failure by the Executive\n     substantially to perform the Executive's duties with the Corporation or a\n     Subsidiary, other than any failure resulting from the Executive's\n     incapacity due to physical or mental illness or any actual or anticipated\n     failure after the issuance of a Notice of Termination for Good Reason by\n     the Executive in accordance with paragraph (A) of Section 6, that continues\n     for at least 30 days after the Board delivers to the Executive a written\n     demand for performance that identifies specifically and in detail the\n     manner in which the Board believes that the Executive willfully has failed\n     substantially to perform the Executive's duties, (ii) the willful engaging\n     by the Executive in misconduct that is demonstrably and materially\n     injurious to the Corporation or any Subsidiary, monetarily or otherwise or\n     (iii) an act or acts on Executive's part constituting (x) a felony under\n     the laws of the United States or any state thereof or (y) a misdemeanor\n     involving moral turpitude.\n\n          (C)  A 'Change in Control' shall mean, if subsequent to the date of\n     this Agreement:\n\n \n                                                                               2\n\n\n                    (i)   any Person (other than a Person holding securities\n          representing 10% or more of the combined voting power of the\n          Corporation's outstanding securities as of July 1, 1998, the\n          Corporation, any trustee or other fiduciary holding securities under\n          any of the Corporation's employee benefit plans, or any company owned,\n          directly or indirectly, by the Corporation's shareholders in\n          substantially the same proportions as their ownership of the stock of\n          the Corporation) becomes the Beneficial Owner (as such term is defined\n          in Rule 13d-3 under the Securities Exchange Act of 1934, as amended),\n          directly or indirectly, of the securities of the Corporation\n          representing 20% or more of the combined voting power of then\n          outstanding securities of the Corporation (the 'Voting Securities'),\n          provided that for purposes of this Section 1(C)(i), the Voting\n          Securities acquired directly from the Corporation by any Person shall\n          be excluded from the determination of such Person's Beneficial\n          Ownership of Voting Securities (but such Voting Securities shall be\n          included in the calculation of the total number of Voting Securities\n          then outstanding),\n\n                    (ii)  during any period of twenty-four months (not including\n          any period prior to July 1, 1998), individuals who at the beginning of\n          such period constitute the Board, and any new director (other than (A)\n          a director nominated by a Person who has entered into an agreement\n          with the Corporation to effect a transaction described in clause (i),\n          (iii) or (iv) of this definition, (B) a director nominated by a Person\n          (including the Corporation) who publicly announces an intention to\n          take or to consider taking actions (including, but not limited to, an\n          actual or threatened proxy contest) which if consummated would\n          constitute a Change in Control or (C) a director nominated by any\n          Person who is the Beneficial Owner, directly or indirectly, of the\n          securities of the Corporation representing 10% or more of the combined\n          voting power of the securities of the Corporation) whose election by\n          the Board or nomination for election by the Corporation's shareholders\n          was approved in advance by a vote of at least two-thirds (2\/3) of the\n          directors then still in office who either were directors at the\n          beginning of the period or whose election or nomination for election\n          was previously so approved, cease for any reason to constitute at\n          least a majority thereof,\n\n                    (iii) the consummation of any transaction or series of\n          transactions under which the Corporation is merged or consolidated\n          with any other company, other than a merger or consolidation which\n          would result in the Corporation's shareholders immediately prior\n          thereto continuing to own (either by remaining outstanding or by being\n          converted into voting securities of the surviving entity) more than\n          65% of the combined voting power of the voting securities of the\n          Corporation or such surviving entity outstanding immediately after\n          such merger or consolidation in the same proportion such shareholders\n          held \n\n \n                                                                               3\n\n          the voting securities of the Corporation immediately prior to the\n          merger or consolidation, or\n\n                    (iv) the Corporation's complete liquidation or the sale or\n          disposition by the Corporation of all or substantially all of the\n          Corporation's assets, other than the Corporation's liquidation into a\n          wholly--owned subsidiary.\n\n          (D)  'Code' shall mean the Internal Revenue Code of 1986, as amended\n     from time to time.\n\n          (E)  'Corporation' shall mean Global Crossing, Ltd. and any successor\n     to its business or assets, by operation of law or otherwise.\n\n          (F)  'Date of Termination' shall have the meaning stated in paragraph\n     (B) of Section 6 hereof.\n\n          (G)  'Disability' shall be deemed the reason for the termination by\n     the Corporation of the Executive's employment, if the Executive is unable\n     to engage in any substantial gainful activity by reason of a medically\n     determinable physical or mental impairment which constitutes a permanent\n     and total disability, as defined in Section 22(e)(3) of the Code (or any\n     successor section thereto).\n\n          (H)  'Executive' shall mean the individual named in the first\n     paragraph of this Agreement.\n\n          (I)  'Good Reason' for termination by the Executive of the Executive's\n     employment shall mean the occurrence, without the Executive's express\n     written consent, of any of the following:\n\n                    (i)  the assignment to the Executive of any duties\n          inconsistent with the Executive's status as a key management employee\n          of the Corporation or of a Subsidiary or a substantial adverse\n          alteration in the nature or status of the Executive's responsibilities\n          from those in effect immediately prior to the Change in Control;\n\n                    (ii) a reduction in the Executive's annual base salary,\n          target annual bonus, or long-term incentive opportunity to any amount\n          less than the Executive's annual base salary, target bonus, or long-\n          term incentive opportunity, respectively, as in effect immediately\n          prior to the Change in Control. For this purpose, long-term incentive\n          opportunities shall be measured as of the date of grant using a\n          methodology consistent with prior long-term incentive grant practices.\n\n \n                                                                               4\n\n                    (iii) the relocation of the Executive's principal place of\n          employment to a location more than 35 miles from the location of such\n          principal place of employment immediately prior to the Change in\n          Control, except for required business travel to an extent\n          substantially consistent with the Executive's business travel\n          obligations immediately prior to the Change in Control;\n\n                    (iv)  the failure to pay the Executive any portion of the\n          Executive's current compensation, or to pay or reimburse the Executive\n          for any expenses incurred by him for required business travel and\n          documented in accordance with reasonable Corporation policy;\n\n                    (v)   the failure by the Corporation to continue to provide\n          the Executive with benefits as favorable in the aggregate and in all\n          material respects as those enjoyed by the Executive under the\n          Corporation's retirement, life insurance, medical, health and\n          accident, disability, or other employee benefit plans in which the\n          Executive was participating immediately prior to the Change in\n          Control; or the failure by the Corporation to provide the Executive\n          with the number of paid vacation days to which the Executive was\n          entitled in accordance with the Corporation's normal vacation policy\n          in effect immediately prior to the Change in Control; or\n\n                    (vi)  any purported termination by the Corporation of the\n          Executive's employment that is not effected in accordance with a\n          Notice of Termination satisfying the requirements of paragraph (A) of\n          Section 6 hereof.\n\n          (J)  'Notice of Termination' shall have the meaning stated in\n     paragraph (A) of Section 6 hereof.\n\n          (K)  'Payment Trigger' shall mean the occurrence of both of (i) a\n     Change in Control during the term of this Agreement and (ii) at any time on\n     or after such Change in Control, but before the end of the Protected\n     Period, the termination of the Executive's employment with the Corporation\n     or a Subsidiary for any reason other than (A) by the Executive without Good\n     Reason, (B) by the Corporation (or a Subsidiary) as a result of the\n     Disability of the Executive or with Cause or (C) as a result of the death\n     of the Executive; provided, however, that if the Executive's employment is\n     terminated prior to a Change in Control at the request of a Person engaged\n     in a transaction or series of transactions that would result in a Change in\n     Control, such termination shall be deemed to occur during the Protected\n     Period. Any transfer of the Executive's employment from the Corporation to\n     a Subsidiary, from a Subsidiary to the Corporation, or from one Subsidiary\n     to another Subsidiary shall not by itself constitute a termination of the\n     Executive's employment for purposes of this Agreement.\n\n          (L)  'Person' shall have the meaning used in Sections 13(d) and 14(d)\n     of the Securities Exchange Act of 1934, as amended from time to time.\n\n \n                                                                               5\n\n          (M)  'Protected Period' shall mean the 24-month period immediately\n     following the month in which a Change in Control occurs.\n\n          (N)  'Subsidiary' shall mean any corporation or other entity or\n     enterprise, whether incorporated or unincorporated, of which at least a\n     majority of the securities or other interests having by their terms\n     ordinary voting power to elect a majority of the board of directors or\n     others serving similar functions with respect to such corporation or other\n     entity or enterprise is owned by the Corporation, directly or indirectly.\n\n          2.   Term of Agreement.  This Agreement will become effective on the\n               -----------------                                              \ndate hereof and shall continue in effect through December 31, 2001 (the\n'Initial Term').\n\n          The Initial Term of this Agreement automatically shall be extended for\none (1) additional year at the end of the Initial Term, and then again after\neach successive one (1) year period thereafter (each such one (1) year period\nfollowing the Initial Term a 'Successive Period'). However, either party may\nterminate this Agreement at the end of the Initial Term, or at the end of any\nSuccessive Period thereafter, by giving the other party written notice of intent\nnot to renew, delivered at least one (1) year prior to the end of such Initial\nTerm or Successive Period. If such notice is properly delivered by either party,\nthis Agreement, along with all corresponding rights, duties, and covenants shall\nautomatically expire at the end of the Initial Term or Successive Period then in\nprogress.\n\n          In the event that a Change in Control of the Corporation occurs (as\nsuch term is herein defined) during the Initial Term or any Successive Period,\nupon the effective date of such Change in Control, the term of this Agreement\nshall automatically and irrevocably be renewed for a period of twenty-four (24)\nfull calendar months from the effective date of such Change in Control. This\nAgreement shall thereafter automatically terminate following the twenty-four\n(24) month Change-in-Control renewal period. Further, this Agreement shall be\nassigned to, and shall be assumed by the purchaser in such Change in Control, as\nfurther provided in Section 9 herein.\n\n          3.   General Provisions.\n               ------------------ \n\n          (A)  The Corporation hereby represents and warrants to the Executive\nas follows: The execution and delivery of this Agreement and the performance by\nthe Corporation of the actions contemplated hereby have been duly authorized by\nall necessary corporate action on the part of the Corporation. This Agreement is\na legal, valid and legally binding obligation of the Corporation enforceable in\naccordance with its terms. Neither the execution or delivery of this Agreement\nnor the consummation by the Corporation of the actions contemplated hereby (i)\nwill violate any provision of the certificate of incorporation or bye-laws (or\nother charter documents) of the Corporation, (ii) will violate or be in conflict\nwith any applicable law or any judgment, decree, injunction or order of any\ncourt or governmental agency or authority, or (iii) will violate or conflict\nwith or constitute a default (or an event which, with notice or lapse of time or\nboth, would constitute a default) under or will result in the termination of,\naccelerate the performance\n\n \n                                                                               6\n\nrequired by, or result in the creation of any lien, security interest, charge or\nencumbrance upon any of the assets or properties of the Corporation under, any\nterm or provision of the certificate of incorporation or bye-laws (or other\ncharter documents) of the Corporation or of any contract, commitment,\nunderstanding, arrangement, agreement or restriction of any kind or character to\nwhich the Corporation is a party or by which the Corporation or any of its\nproperties or assets may be bound or affected.\n\n          (B)  No amount or benefit shall be payable under this Agreement unless\nthere shall have occurred a Payment Trigger during the term of this Agreement.\nIn no event shall payments in accordance with this Agreement be made in respect\nof more than one Payment Trigger.\n\n          (C)  This Agreement shall not be constructed as creating an express or\nimplied contract of employment and, except as otherwise agreed in writing\nbetween the Executive and the Corporation, the Executive shall not have any\nright to be retained in the employ of the Corporation or of a Subsidiary.\nNotwithstanding the immediately preceding sentence or any other provision of\nthis Agreement, no purported termination of the Executive's employment that is\nnot effected in accordance with a Notice of Termination satisfying paragraph (A)\nof Section 6 shall be effective for purposes of this Agreement. The Executive's\nright, following the occurrence of a Change in Control, to terminate his\nemployment under this Agreement for Good Reason shall not be affected by the\nExecutive's Disability or incapacity. The Executive's continued employment shall\nnot constitute consent to, or a waiver of rights with respect to, any act or\nfailure to act constituting Good Reason under this Agreement.\n\n          4.   Payments Due Upon a Payment Trigger.\n               ----------------------------------- \n\n          (A)  The Corporation shall pay to the Executive the payments described\nin this Section 4 upon the occurrence of a Payment Trigger during the term of\nthis Agreement.\n\n          (B)  Upon the occurrence of a Payment Trigger during the term of this\nAgreement, the Corporation shall pay to the Executive a lump sum payment, in\ncash, equal to the product of:\n \n                    (i)  three multiplied by\n\n                   (ii)  the sum of --\n\n                              (a)  the higher of the Executive's (1) annual base\n                         salary in effect immediately prior to the occurrence of\n                         the Change in Control or (2) the Executive's annual\n                         base salary in effect immediately prior to the Payment\n                         Trigger, plus\n\n                              (b)  the higher of (1) the Executive's target\n                         annual bonus for the fiscal year (or other measuring\n                         period) prior to the fiscal \n\n \n                                                                               7\n\n                         year (or other measuring period) in which the Change in\n                         Control occurs or (2) the Executive's target annual\n                         bonus for the fiscal year (or other measuring period)\n                         in which the Payment Trigger occurs.\n\n          The amount determined under the foregoing provisions of this paragraph\n(B) shall be reduced by any cash severance benefit otherwise paid to the\nExecutive under any applicable severance plan or other severance arrangement.\nFor purposes of this paragraph (B), amounts payable to the Executive pursuant to\nan annual bonus plan for the fiscal year or other measuring period described in\n(1) or (2) above, as applicable (the 'applicable year\/period'), shall not\ninclude amounts attributable to a fiscal year or other measuring period that\ncommenced prior to the applicable year\/period and that become payable during the\napplicable year\/period.\n\n          (C)  Notwithstanding any provision of any incentive compensation plan,\nincluding, without limitation, any provision of any incentive compensation plan\nconditioning the receipt of any payment upon continued employment after the\ncompleted fiscal year or other measuring period, the Corporation shall pay to\nthe Executive a lump sum amount, in cash, equal to the amount of any incentive\ncompensation that has been allocated or awarded to the Executive for a completed\nfiscal year or other measuring period, preceding the occurrence of a Payment\nTrigger under any incentive compensation plan but has not yet been paid to the\nExecutive.\n\n          (D)  For the fiscal year or other measuring period during which the\nPayment Trigger occurs, the Executive shall be entitled to a pro rata bonus\nequal to the number of calendar days elapsed during the fiscal year or other\nmeasuring period prior to the Date of Termination divided by the total days in\nthe fiscal year or measuring period, as the case may be, and multiplied by the\ntarget bonus payable for such period.\n\n          (E)  The payments provided for in paragraphs (B), (C) and (D) of this\nSection 4 shall be made not later than the fifth day following the occurrence of\na Payment Trigger, unless the amounts of such payments cannot be finally\ndetermined on or before that day, in which case, the Corporation shall pay to\nthe Executive on that day an estimate, as reasonably determined in good faith by\nthe Corporation, of the minimum amount of the payments to which the Executive is\nclearly entitled and shall pay the remainder of the payments (together with\ninterest at the rate provided in section 1274(b)(2)(B) of the Code) as soon as\nthe amount thereof can be determined but in no event later than the thirtieth\nday after the occurrence of a Payment Trigger. In the event the amount of the\nestimated payments exceeds the amount subsequently determined to have been due,\nthe excess shall constitute a loan by the Corporation to the Executive, payable\non the fifth business day after demand by the Corporation (together with\ninterest at the rate provided in section 1274(b)(2)(B) of the Code). At the time\nthat payments are made under this Section 4, the Corporation shall provide the\nExecutive with a written statement setting forth the manner in which the\npayments were calculated and the basis for the calculations including, without\nlimitation, any opinions or other advice the Corporation has received from any\noutside counsel, auditors or consultants (and any opinions or advice that are in\nwriting shall be attached to the statement).\n\n \n                                                                               8\n\n          (F)  (i)  In addition to the payments provided for above in this\nSection 4, the Corporation shall provide or arrange to provide, at the same cost\nto the Executive, and at the same coverage level as in effect as of the Date of\nTermination (subject to changes in coverage levels applicable to all employees\nwho are similarly situated to the Executive prior to the Date of Termination), a\ncontinuation of the Executive's (and the Executive's eligible dependents')\nhealth and life insurance coverages for [thirty-six (36)] [twenty-four (24)]\nmonths from the Date of Termination. The applicable COBRA health insurance\nbenefit continuation period shall commence at the beginning of this [thirty-six\n(36)] [twenty-four (24)] month benefit continuation period.\n\n          (ii) The providing of these health and life insurance benefits by the\nCorporation shall be discontinued prior to the end of the [thirty-six (36)]\n[twenty-four (24)] month continuation period to the extent that the Executive\nbecomes covered under the health and\/or life insurance coverages of a subsequent\nemployer; provided that such subsequent employer health insurance coverage does\nnot contain any exclusion or limitation with respect to any preexisting\ncondition of the Executive or the Executive's eligible dependents. For purposes\nof enforcing this offset provision, the Executive shall have a duty to promptly\ninform the Corporation in writing if the Executive becomes covered under the\nhealth and\/or life insurance coverages of a subsequent employer.\n\n          5.   Gross-Up Payments.\n               ----------------- \n\n          (A) In the event it shall be determined that any payment or\ndistribution by the Corporation or other amount with respect to the Corporation\nto or for the benefit of the Executive, whether paid or payable or distributed\nor distributable pursuant to the terms of this Agreement or otherwise, but\ndetermined without regard to any additional payments required under this \nSection 5 (a 'Payment'), is (or will be) subject to the excise tax imposed by\nSection 4999 of the Code or any interest or penalties are (or will be) incurred\nby the Executive with respect to the excise tax imposed by Section 4999 of the\nCode with respect to the Corporation (the excise tax, together with any interest\nand penalties, are hereinafter collectively referred to as the 'Excise Tax'),\nthe Executive shall be entitled to receive an additional cash payment (a 'Gross-\nUp Payment') from the Corporation in an amount equal to the sum of the Excise\nTax and an amount sufficient to pay the cumulative Excise Tax and all cumulative\nincome taxes (including any interest and penalties imposed with respect to such\ntaxes) relating to the Gross-Up Payment so that the net amount retained by the\nExecutive is equal to all payments to which Executive is entitled pursuant to\nthe terms of this Agreement (excluding the Gross-Up Payment) or otherwise less\nincome taxes (but not reduced by the Excise Tax or by income taxes attributable\nto the Gross-Up Payment).\n\n          (B)  Subject to the provisions of paragraph (C) of this Section 5, all\ndeterminations required to be made under this Section 5, including whether and\nwhen a Gross-Up Payment is required and the amount of such Gross-Up Payment and\nthe assumptions to be utilized in arriving at the determination, shall be made\nby a nationally recognized certified public accounting firm selected by the\nCorporation with the consent of the Executive, which should not unreasonably be\nwithheld (the 'Accounting Firm') which shall provide detailed supporting\ncalculations both to the Corporation and the Executive within 30 days after the\nreceipt of notice \n\n \n                                                                               9\n\nfrom the Executive that there has been a Payment, or such earlier time as is\nrequested by the Corporation. All fees and expenses of the Accounting Firm shall\nbe borne solely by the Corporation. The Corporation, as determined in accordance\nwith this Section 5, shall pay any Gross-Up Payment to the Executive within five\ndays after the receipt of the Accounting Firm's determination. If the Accounting\nFirm determines that no Excise Tax is payable by the Executive, it shall so\nindicate to the Executive in writing. Any determination by the Accounting Firm\nshall be binding upon the Corporation and the Executive. As a result of\nuncertainty in the application of Section 4999 of the Code at the time of the\ninitial determination by the Accounting Firm, it is possible that Gross-Up\nPayments that the Corporation should have made will not have been made (an\n'Underpayment'), consistent with the calculations required to be made hereunder.\nIn the event the Corporation exhausts its remedies in accordance with paragraph\n(C) of this Section 5 and the Executive thereafter is required to make a payment\nof any Excise Tax, the Accounting Firm shall determine the amount of\nUnderpayment that has occurred and the Underpayment shall be promptly paid by\nthe Corporation to or for the benefit of the Executive.\n\n          (C)  The Executive shall notify the Corporation in writing of any\nclaim by the Internal Revenue Service that, if successful, would require a\nGross-Up Payment (that has not already been paid by the Corporation). The\nnotification shall be given as soon as practicable but no later than ten\nbusiness days after the Executive is informed in writing of the claim and shall\napprise the Corporation of the nature of the claim and the date on which the\nclaim is requested to be paid. The Executive shall not pay the claim prior to\nthe expiration of the 30-day period following the date on which the Executive\ngives notice to the Corporation or any shorter period ending on the date that\nany payment of taxes with respect to the claim is due. If the Corporation\nnotifies the Executive in writing prior to the expiration of the 30-day period\nthat it desires to contest the claim, the Executive shall:\n\n                    (i)   give the Corporation any information reasonably\n          requested by the Corporation relating to the claim;\n\n                    (ii)  take any action in connection with contesting the\n          claim as the Corporation shall reasonably request in writing from time\n          to time, including, without limitation, accepting legal representation\n          with respect to the claim by an attorney reasonably selected by the\n          Corporation;\n\n                    (iii) cooperate with the Corporation in good faith in order\n          effectively to contest the claim; and\n\n                    (iv)  permit the Corporation to participate in any\n          proceedings relating to the claim.\n\n          The Corporation shall bear and pay directly all costs and expenses\n(including additional interest and penalties) incurred in connection with the\ncontest and shall indemnify and hold the Executive harmless, on an after-tax\nbasis, for any Excise Tax or income tax (including interest and penalties with\nrespect thereto) imposed as a result of the representation and payment \n\n \n                                                                              10\n\nof costs and expenses. Without limitation of the forgoing provisions of this\nSection 5, the Corporation shall control all proceedings taken in connection\nwith the contest and, at its sole option, may pursue or forego any and all\nadministrative appeals, proceedings, hearings, and conferences with the taxing\nauthority in respect of the claim and may, at its sole option, either direct the\nExecutive to pay the tax claimed and sue for a refund or contest the claim in\nany permissible manner, and the Executive agrees to prosecute the contest to a\ndetermination before any administrative tribunal, in a court of initial\njurisdiction and in one or more appellate courts, as the Corporation shall\ndetermine. If the Corporation directs the Executive to pay the claim and sue for\na refund, the Corporation shall advance the amount of the payment to the\nExecutive, on an interest-free basis, and shall indemnify and hold the Executive\nharmless, on an after-tax basis, from any Excise Tax or income tax (including\ninterest or penalties with respect thereto) imposed with respect to the advance\nor with respect to any imputed income with respect to the advance; and any\nextension of the statute of limitations relating to payment of taxes for the\ntaxable year of the Executive with respect to which the contested amount is\nclaimed to be due shall be limited solely to the contested amount. The\nCorporation's control of the contest shall be limited to issues with respect to\nwhich a Gross-Up Payment would be payable hereunder and the Executive shall be\nentitled to settle or contest, as the case may be, any other issue raised by the\nInternal Revenue Service or any other taxing authority.\n\n          (D)  If, after the receipt by the Executive of an amount advanced by\nthe Corporation pursuant to paragraph (C) of this Section 5, the Executive\nbecomes entitled to receive any refund with respect to the claim, the Executive\nshall, subject to the Corporation's compliance with the requirements of\nparagraph (C) of this Section 5, promptly pay to the Corporation the amount of\nthe refund (together with any interest paid or credited thereon after taxes\napplicable thereto). If, after the receipt by the Executive of an amount\nadvanced by the Corporation pursuant to paragraph (C) of this Section 5, a\ndetermination is made that the Executive shall not be entitled to any refund\nwith respect to the claim and the Corporation does not notify the Executive in\nwriting of its intent to contest the denial of refund prior to the expiration of\n30 days after the determination, then the advance shall be forgiven and shall\nnot be required to be repaid and the amount of the advance shall offset, to the\nextent thereof, the amount of Gross-Up Payment required to be paid.\n\n          6.   Termination Procedures.\n               ---------------------- \n\n          (A)  During the term of this Agreement, any purported termination of\nthe Executive's employment (other than by reason of death) shall be communicated\nby written Notice of Termination from one party hereto to the other party hereto\nin accordance with Section 10 hereof. For purposes of this Agreement, a 'Notice\nof Termination' shall mean a written notice that indicates the specific\ntermination provision in this Agreement relied upon, and, if applicable, the\nnotice shall set forth in reasonable detail the facts and circumstances claimed\nto provide a basis for termination of the Executive's employment under the\nprovision so indicated. Further, a Notice of Termination for Cause shall include\na copy of a resolution duly adopted by the affirmative vote of not less than a\nmajority of the entire membership of the Board at a meeting of the Board finding\nthat, in the informed, reasonable, good faith judgment of the Board, \n\n \n                                                                              11\n\nthe Executive was guilty of conduct set forth in the definition of Cause in\nSection 1(B), and specifying the particulars thereof in detail.\n\n          (B)  'Date of Termination' with respect to any purported termination\nof the Executive's employment during the term of the Agreement (other than by\nreason of death) shall mean (i) if the Executive's employment is terminated for\nDisability, 20 business days after Notice of Termination is given (provided that\nthe Executive shall not have returned to the full-time performance of the\nExecutive's duties during that 20 business day period) and (ii) if the\nExecutive's employment is terminated for any other reason, the date specified in\nthe Notice of Termination, which, in the case of a termination by the\nCorporation, shall not be less than ten business days except in the case of a\ntermination for Cause, and, in the case of a termination by the Executive, shall\nnot be less than ten business days nor more than 20 business days, respectively,\nafter the date such notice of Termination is given.\n\n          7.   No Mitigation.  The Executive shall not be required to seek other\n               -------------                                                    \nemployment or to attempt in any way to reduce any amounts payable to the\nExecutive by the Corporation pursuant to this Agreement. Further, except as\nprovided in Section 4(E), the amount of any payment or benefit provided for in\nthis Agreement shall not be reduced by any compensation earned by the Executive\nas the result of employment by another employer, by retirement benefits, by\noffset against any amount claimed to be owed by the Executive to the Corporation\nor a Subsidiary, or otherwise.\n\n          8.   Disputes.\n               -------- \n\n          (A)  If a dispute or controversy arises out of or in connection with\nthis Agreement, the parties shall first attempt in good faith to settle the\ndispute or controversy by mediation under the Commercial Mediation Rules of the\nAmerican Arbitration Association before resorting to arbitration or litigation.\nThereafter, any remaining unresolved dispute or controversy arising out of or in\nconnection with this Agreement shall, upon a written notice from the Executive\nto the Corporation either before suit thereupon is filed or within 20 business\ndays thereafter, be settled exclusively by arbitration in accordance with the\nCommercial Arbitration Rules of the American Arbitration Association in a city\nlocated within the continental United States designated by the Executive.\nJudgment may be entered on the arbitrator's award in any court having\njurisdiction. The Executive shall, however, be entitled to seek specific\nperformance of the Corporation's obligations hereunder during the pendency of\nany dispute or controversy arising under or in connection with this Agreement.\n\n          (B)  Any legal action concerning this Agreement, other than a\nmediation or an arbitration described in paragraph (A) of this Section 8,\nwhether instituted by the Corporation or the Executive, shall be brought and\nresolved only in a state court of competent jurisdiction located in the\nterritory that encompasses the city, county, or parish in which the Executive's\nprincipal residence is located at the time such action is commenced. The\nCorporation hereby irrevocably consents and submits to and shall take any action\nnecessary to subject itself to the personal jurisdiction of that court and\nhereby irrevocably agrees that all claims in respect of the\n\n \n                                                                              12\n\naction shall be instituted, heard, and determined in that court. The Corporation\nagrees that such court is a convenient forum, and hereby irrevocably agrees that\nall claims in respect of the action shall be instituted, heard, and determined\nin that court, and hereby irrevocably waives, to the fullest extent it may\neffectively do so, the defense of an inconvenient forum to the maintenance of\nthe action. Any final judgment in the action may be enforced in other\njurisdictions by suit on the judgment or in any other manner provided by law.\n\n          (C)  The Corporation shall pay all costs and expenses, including\nattorneys' fees and disbursements, of the Corporation and, at least monthly, the\nExecutive in connection with any legal proceeding (including arbitration),\nwhether or not instituted by the Corporation or the Executive, relating to the\ninterpretation or enforcement of any provision of this Agreement, provided that\nif the Executive instituted the proceeding and the judge, arbitrator, or other\nindividual presiding over the proceeding affirmatively finds that the Executive\ninstituted the proceeding in bad faith, the Executive shall pay all costs and\nexpenses, including attorneys' fees and disbursements, of Executive and the\nCorporation. The Corporation shall pay prejudgment interest on any money\njudgment obtained by Executive as a result of such proceeding, calculated at the\nrate provided in Section 1274(b)(2) (B) of the Code.\n\n     9.   Successors: Binding Agreement.\n          -----------------------------\n\n          (A)  In addition to any obligations imposed by law upon any successor\nto the Corporation, the Corporation shall require any successor (whether direct\nor indirect, by purchase, merger, consolidation, or otherwise) to all or\nsubstantially all of the business or assets of the Corporation expressly to\nassume and agree to perform this Agreement in the same manner and to the same\nextent that the Corporation would be required to perform it if no such\nsuccession had taken place. Failure of the Corporation to obtain the assumption\nand agreement prior to the effectiveness of any succession shall be a breach of\nthis Agreement and shall entitle the Executive to compensation from the\nCorporation in the same amount and on the same terms as the Executive would be\nentitled to hereunder if the Executive were to terminate his employment for Good\nReason immediately after a Change in Control and during the term of this\nAgreement, except that, for purposes of implementing the foregoing, the date on\nwhich any succession becomes effective shall be deemed the Payment Trigger\noccasioned by the foregoing deemed termination of employment for Good Reason\nimmediately following a Change in Control. The provisions of this Section 9\nshall continue to apply to each subsequent employer of Executive bound by this\nAgreement in the event of any merger, consolidation, or transfer of all or\nsubstantially all of the business or assets of that subsequent employer.\n\n          (B)  This Agreement shall inure to the benefit of and be enforceable\nby the Executive's personal or legal representatives, executor, administrators,\nsuccessors, heirs, distributees, devisees, and legatees. If the Executive shall\ndie while any amount would be payable to the Executive hereunder (other than\namounts which, by their terms, terminate upon the death of the Executive) if the\nExecutive had continued to live, the amount, unless otherwise provided herein,\nshall be paid in accordance with the terms of this Agreement to the executors,\npersonal representatives, or administrators of the Executive's estate.\n\n \n                                                                              13\n\n          10.  Notices.  For the purpose of this Agreement, notices and all\n               -------                                                     \nother communications provided for in the Agreement shall be in writing and shall\nbe deemed to have been duly given when delivered or mailed by United States\nregistered mail, return receipt requested, postage prepaid, addressed to the\nrespective addressed set forth below, or to such other address as either party\nmay have furnished to the other in writing in accordance herewith, except that\nnotice of change of address shall be effective only upon actual receipt:\n\n          To the Corporation:\n\n               Global Crossing Ltd.\n               Wessex House\n               45 Reid Street\n               Hamilton HM12, Bermuda\n               Attn: Resident Representative\n\n               Copy to:\n\n               Global Crossing Ltd.\n               360 North Crescent Drive\n               Beverly Hills, California 90210\n               Attn: General Counsel\n\n               To the Executive:\n\n               To the most recent address of Executive set forth in the\n               personnel records of the Corporation.\n\n          11.  Miscellaneous .  No provision of this Agreement may be modified,\n               -------------                                                   \nwaived, or discharged unless such waiver, modification, or discharge is agreed\nto in writing and signed by the Executive and an officer of the Corporation\nspecifically designated by the Board. No waiver by either party hereto at any\ntime of any breach by the other party hereto of, or compliance with, any\ncondition or provision of this Agreement to be performed by such other party\nshall be deemed a waiver of similar or dissimilar provisions or conditions at\nthe same or at any prior or subsequent time. No agreements or representations,\noral or otherwise, express or implied, with respect to the subject matter hereof\nhave been made by either party which are not expressly set forth in this\nAgreement. The validity, interpretation, construction, and performance of this\nAgreement shall be governed by the laws of the State of California. All\nreferences to sections of the Securities Exchange Act of 1934 or the Code shall\nbe deemed also to refer to any successor provisions to such sections. Any\npayments provided for hereunder shall be paid net of any applicable withholding\nrequired under federal, state, or local law and any additional withholding to\nwhich the Executive has agreed.\n\n \n                                                                              14\n\n          12.  Validity.  The invalidity or unenforceability of any provision of\n               --------                                                         \nthis Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement, which shall remain in full force and effect.\n\n          13.  Counterparts.  This Agreement may be executed in several\n               ------------                                            \ncounterparts, each of which shall be deemed to be an original but all of which\ntogether will constitute one and the same instrument.\n\n \n                                                                              15\n\nIN WITNESS WHEREOF, the parties have signed this Agreement as of the date set\nforth above.\n\nAttest:                            GLOBAL CROSSING LTD.\n\n\n________________________           By:____________________________\nName:                                 Name:\nTitle:                                Title:\n\n\nWitness:                           EXECUTIVE:\n\n\n_________________________          _______________________________\n                                   Print Name:\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7648],"corporate_contracts_industries":[9519],"corporate_contracts_types":[9539,9551],"class_list":["post-38576","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-global-crossing-ltd","corporate_contracts_industries-telecommunications__telephone","corporate_contracts_types-compensation","corporate_contracts_types-compensation__severance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/38576","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=38576"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=38576"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=38576"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=38576"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}