Executive Employment Agreement between Cyxtera Management, Inc. and Carlos Sagasta dated February 10, 2020
This Employment Agreement (this Agreement) is entered into on February 10, 2020 by and between Cyxtera Management, Inc., a Delaware corporation (together with any successor thereto, the Company), and Carlos Sagasta (the Executive) (collectively referred to herein as the Parties), effective as of February18, 2020 (the Effective Date).
It is the desire of the Company to assure itself of the services of Executive effective as of the Effective Date and thereafter by entering into this Agreement.
Executive and the Company mutually desire that Executive provide services to the Company on the terms herein provided.
NOW, THEREFORE, in consideration of the foregoing and of the respective covenants and agreements set forth below, the Parties hereto agree as follows:
(a) General. Effective as of the Effective Date, the Company shall employ Executive and Executive shall remain in the employ of the Company, for the period and in the position set forth in this Section 1, and subject to the other terms and conditions herein provided.
(b) Employment Term. The term of employment under this Agreement (the Term) shall be for the period beginning on the Effective Date and ending on the third (3rd) anniversary of the Effective Date, subject to earlier termination as provided in Section 3. The Term shall automatically renew for additional 12 (twelve) month periods unless, no later than 60 (sixty) days prior to the end of the applicable Term, either party gives written notice of non-renewal (Notice of Non-Renewal) to the other, in which case Executives employment will terminate at the end of the then-applicable Term, subject to earlier termination as provided in Section 3. For the avoidance of doubt, in the event the Company provides a Notice of Non-Renewal and terminates the Executives employment without Cause upon or following the expiration of the Term, the Executive will be entitled to receive the payments and benefits set forth in Section 4(b) of this Agreement. The provisions of Section 5, 6, 7, 8, 9 and 11 shall survive any expiration or non-renewal of the Term.
(c) Position and Duties. Executive shall serve as Executive Vice President and Chief Financial Officer of the Company with such responsibilities, duties and authority normally associated with such positions and other duties consistent with such position as may from time to time be assigned to Executive by the Chief Executive Officer of the Company. Executive shall devote substantially all of Executives working time and efforts to the business and affairs of the Company (which shall include service to Cyxtera Technologies, Inc. and its direct and indirect subsidiaries and controlled affiliates) and shall not engage in outside business activities (including serving on outside boards or committees) without the consent of the board of directors of the Company, or its direct or indirect parent company (the Board), provided that Executive shall be permitted to (i) manage Executives personal, financial and legal affairs, (ii) participate in trade associations and (iii) serve on the board of directors of not-for-profit or tax-exempt charitable organizations, in each case, subject to compliance with this Agreement and provided that such activities do not materially interfere with Executives performance of Executives duties and responsibilities hereunder. Executive agrees to observe and comply with the rules and policies of the Company as adopted by the Board from time to time, in each case as amended from time to time, as set forth in writing and delivered to Executive (each, a Policy).
(d) Principal Location of Employment. Executives employment location will be at the Companys corporate headquarters, currently located at 2333 Ponce De Leon Blvd., Coral Gables, Florida 33134, or at such other location where such offices may be relocated from time to time; provided that the Executive may be required to travel on Company business during the Term. The Parties acknowledge and agree that (i) Executive will be relocating to Miami, Florida, with such relocation to be completed on a mutually agreed timeline, and (ii) prior to the completion of such relocation, Executive may work remotely so long as (A) such arrangement does not materially interfere with Executives performance of Executives duties and responsibilities hereunder and (B) prior to such relocation, Executive will travel to and work from the Companys headquarters from time to time as reasonably required by the Chief Executive Officer. Executives reasonable time for such travel shall be considered time devoted to the business and affairs of the Company under Section 1(c).
2. Compensation and Related Matters.
(a) Annual Base Salary. During the Term, Executive shall receive a base salary at a rate of $400,000 (four hundred thousand dollars) per annum, which shall be paid in accordance with the customary payroll practices of the Company and shall be pro-rated for partial years of employment. Such annual base salary shall be reviewed (and may be increased but not decreased) from time to time, but not less than annually, by the Board (such annual base salary, as it may be adjusted from time to time, the Annual Base Salary).
(b) Bonus. During the Term and beginning with calendar year 2020, Executive will be eligible to participate in an annual incentive program established by the Board. Executives annual incentive compensation under such incentive program (the Annual Bonus) shall be targeted at 80% (eighty percent) of his Annual Base Salary (the Target Bonus), with the expectation that the bonus will scale upward and downward based on actual performance, with respect to performance goals established at the start of each period by the Board in consultation with the Chief Executive Officer, as determined by the Board in good faith. The payment of any Annual Bonus pursuant to the incentive program shall be subject to Executives continued employment with the Company through the date of payment, except as otherwise provided in Section 4. For the avoidance of doubt, in the event the Executives employment terminates after the end of a calendar year for any reason other than by the Company for Cause or by the Executive without Good Reason, then Executive will remain entitled to receive any earned Annual Bonus for the prior completed year. Each earned Annual Bonus will be payable in the year following the year for which it is earned as soon as practicable after the end of the year for which it is earned (and, in all events, prior to the later of (i) date that is two and a half months after the end of the year for which it is earned or (ii) 30 (thirty) days after the completion of the audited financial statements for such year but not later than 120 (one hundred and twenty) days after the end of the year). It is agreed that the one year period for the Target Bonus with respect to the year 2020 begins January 1, 2020.
(c) Benefits. During the Term, Executive shall be eligible to participate in employee benefit plans, programs and arrangements of the Company (including medical, dental and 401(k) plans) available to similarly situated executives, consistent with the terms thereof and as such plans, programs and arrangements may be amended from time to time. In no event shall Executive be eligible to participate in any severance plan or program of the Company, except as set forth in Section 3(c) and Section 4 of this Agreement.
(d) Vacation. During the Term, Executive shall be entitled to paid personal leave in accordance with the Companys Policies. Any vacation shall be taken at the reasonable and mutual convenience of the Company and Executive.
(e) Business Expenses. During the Term, the Company shall reimburse Executive for all reasonable travel (including, without limitation and subject to the Companys expense reimbursement policy, travel and expense policy and other applicable policies and procedures, in each case as in effect from time to time, meals, lodging, transportation and other related travel costs and expenses) and other business expenses incurred by Executive in the performance of Executives duties to the Company in accordance with the Companys expense reimbursement Policy. For the elimination of doubt, Executives allowed travel expenses will include Executives expenses for travel between his home and the Companys headquarters pending his relocation.
(f) Key Person Insurance. At any time during the Term, the Company shall have the right to insure the life of Executive for the Companys sole benefit. The Company shall have the right to determine the amount of insurance and the type of policy. Executive shall reasonably cooperate with the Company in obtaining such insurance by submitting to physical examinations, by supplying all information reasonably required by any insurance carrier, and by executing all necessary documents reasonably required by any insurance carrier; provided that any information provided to an insurance company or broker shall not be provided to the Company without the prior written authorization of Executive. Executive shall incur no financial obligation by executing any required document, and shall have no interest in any such policy.
(g) Class B Units of SIS Holdings LP. SIS Holdings LP, a Delaware limited partnership and the indirect parent company of the Company (Parent), shall grant to Executive an equity incentive award consisting of such number of Class B Units (the Class B Units) of Parent mutually agreed to by Executive and the Company as promptly as practicable following the Effective Date. Such Class B Units shall be granted as promptly as practicable following the parties agreement as to the number of Class B Units and the approval of the grant by Parents board of directors, but shall be effective as of the Effective Date. The Class B Units shall be granted under and shall be subject in all respects to the Class B Units Plan established by Parent (or any successor plan established by Parent on terms and conditions satisfactory to Parent in its discretion) (the Plan). The grant of the Class B Units to Executive shall be conditioned upon Executives commencement of employment hereunder as of the Effective Date and Executives execution of an award agreement (the Award Agreement) on terms and conditions acceptable to Parent. The Class B Units shall be subject in all respects to the terms and conditions to be set forth in the Plan and the Award Agreement (including vesting and exercisability terms, which are expected to include time-based vesting criteria providing for 25% (twenty-five percent) vesting on the first anniversary of the grant date, with the remainder vesting in ratable monthly installments for the 42 (forty two) months thereafter, with any unvested options accelerating upon certain liquidity events).
Executives employment hereunder may be terminated by the Company or Executive, as applicable, without any breach of this Agreement under the following circumstances:
(i) Death. Executives employment hereunder shall terminate upon Executives death.
(ii) Disability. If Executive has incurred a Disability, as defined below, the Company may terminate Executives employment.
(iii) Termination for Cause. The Company may terminate Executives employment for Cause, as defined below.
(iv) Termination without Cause. The Company may terminate Executives employment without Cause, which shall include termination without Cause as a result of the Company not renewing the Term pursuant to Section 1.
(v) Resignation from the Company for Good Reason. Executive may resign Executives employment with the Company for Good Reason, as defined below.
(vi) Resignation from the Company Without Good Reason. Executive may resign Executives employment with the Company for any reason other than Good Reason or for no reason, which shall include a termination of Executive as a result of Executive not renewing the Term pursuant to Section 1.
(b) Notice of Termination. Any termination of Executives employment by the Company or by Executive under this Section 3 (other than termination pursuant to paragraph (a)(i)) shall be communicated by a written notice to the other Party hereto (i) indicating the specific termination provision in this Agreement relied upon, (ii) setting forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Executives employment under the provision so indicated, if applicable, and (iii) specifying a Date of Termination which, if submitted by Executive, shall be at least 45 (forty five) days following the date of such notice (a Notice of Termination); provided, however, that in the event that Executive delivers a Notice of Termination to the Company, the Company may, in its sole discretion, change the Date of Termination to any date that occurs following the date of Companys receipt of such Notice of Termination and is prior to the date specified in such Notice of Termination (it being understood that the Company will provide pay in lieu of notice in an amount equal to the compensation that would be due to Executive for the period from the changed Date of Termination through the originally specified Date of Termination (not to exceed 45 (forty five) days)). The failure by the Company or Executive to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Cause or Good Reason shall not waive any right of such Party hereunder or preclude such Party from asserting such fact or circumstance in enforcing such Partys rights hereunder.
(c) Company Obligations upon Termination. Upon termination of Executives employment pursuant to any of the circumstances listed in Section 3(a), Executive (or Executives estate) shall be entitled to receive the sum of: (i) the portion of Executives Annual Base Salary earned through the Date of Termination, but not yet paid to Executive, (ii) any vacation time that has been accrued but unused in accordance with Companys Policies, (iii) any reimbursements owed to Executive pursuant to Section 2(e); (iv) any accrued bonus amounts with respect to the year prior to the year in which the Date of Termination occurs, to the extent then unpaid, provided, however, that Executive will not be entitled to receive the amount in this subclause (iv) upon termination of Executives employment pursuant to the circumstances listed in Section 3(a)(iii) or Section 3(a)(vi), and (v) any amount accrued and arising from Executives participation in, or benefits accrued under any employee benefit plans, programs or arrangements (including with respect to equity-based awards), which amounts shall be payable in accordance with the terms and conditions of such employee benefit plans, programs or arrangements (collectively, the Company Arrangements). Except as otherwise expressly required by law (e.g., COBRA (as defined below)) or as specifically provided in this Agreement, all of Executives rights to salary, severance, benefits, bonuses and other compensatory amounts hereunder (if any) shall cease upon the termination of Executives employment hereunder.
(d) Deemed Resignation. Upon termination of Executives employment for any reason, Executive shall be deemed to have resigned from all offices and directorships, if any, then held with the Company or any of its affiliates.
4. Severance Payments.
(a) Termination for Cause, or Resignation from the Company Without Good Reason. If Executives employment shall terminate pursuant to Section 3(a)(iii) for Cause or pursuant to Section 3(a)(vi) for Executives resignation from the Company without Good Reason, then Executive shall not be entitled to any severance payments or benefits, except as provided in Section 3(c). Upon such termination, all unvested Class B Units issued to Executive under the Plan shall immediately be forfeited.
(b) Termination without Cause, or Resignation from the Company for Good Reason. If Executives employment terminates without Cause pursuant to Section 3(a)(iv), or pursuant to Section 3(a)(v) due to Executives resignation for Good Reason, then, subject to Executive signing on or before the 21st (twenty first) day following Executives Separation from Service (as defined below), and not revoking, a release of claims substantially in the form attached as Exhibit A to this Agreement (the Release), and Executives continued compliance with Sections 5 and 6, Executive shall receive, in addition to payments and benefits set forth in Section 3(c), the following:
(i) an amount in cash equal to one (1) times the sum of (A) Annual Base Salary and (B) the Target Bonus, payable in the form of salary continuation in regular installments over the 12 (twelve) month period following the date of Executives Separation from Service (the Severance Period) in accordance with the Companys normal payroll practices, commencing on the first payroll period occurring on or after the 28th (twenty eighth) day following Executives Separation from Service; if Executive elects to receive continued medical, dental or vision coverage under one or more of the Companys group healthcare plans pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (COBRA), the Company shall directly pay, or reimburse Executive for, the COBRA premiums for Executive and Executives covered dependents under such plans during the period commencing on Executives Separation from Service and ending upon the earliest of (X) the last day of the Severance Period, (Y) the date that Executive and/or Executives covered dependents become no longer eligible for COBRA or (Z) the date Executive becomes eligible to receive healthcare coverage from a subsequent employer (and Executive agrees to promptly notify the Company of such eligibility). Notwithstanding the foregoing, if the Company determines in its sole discretion that it cannot provide the foregoing benefit without potentially violating applicable law (including, without limitation, Section 2716 of the Public Health Service Act) or incurring an excise tax, the Company shall in lieu thereof provide to Executive a taxable monthly payment in an amount equal to the monthly COBRA premium that Executive would be required to pay to continue Executives and Executives covered dependents group health coverage in effect on the Date of Termination (which amount shall be based on the premium for the first month of COBRA coverage), less the amount Executive would have had to pay to receive group health coverage for Executive and his or her covered dependents based on the cost sharing levels in effect on the Date of Termination, which payments shall be made regardless of whether Executive elects COBRA continuation coverage and shall commence in the month following the month in which the Date of Termination occurs and shall end on the earlier of (X) the last day of the Severance Period, (Y) the date that Executive and/or Executives covered dependents become no longer eligible for COBRA or (Z) the date Executive becomes eligible to receive healthcare coverage from a subsequent employer (and Executive agrees to promptly notify the Company of such eligibility); and
(ii) to the extent unpaid as of the Date of Termination, an amount of cash equal to any Annual Bonus earned by Executive for the Companys fiscal year in which the Date of Termination occurs, as determined by the Board in its discretion based upon actual performance achieved, which Annual Bonus, if any, shall be prorated based on the days of the fiscal year prior to and including the Date of Termination, and paid to Executive when bonuses for such fiscal year are paid in the ordinary course to actively employed senior executives of the Company (but in no event later than the date that is two and half months into the following fiscal year).
(c) Termination Upon Death or Disability. If Executives employment shall terminate as a result of Executives death pursuant to Section 3(a)(i) or Disability pursuant to Section 3(a)(ii), then Executive, or Executives estate, as applicable, shall receive the payments and benefits set forth in Section 3(c) and Section 4(b)(ii).
(d) Survival. Notwithstanding anything to the contrary in this Agreement, the provisions of Sections 5 through 9 and Section 11 will survive the termination of Executives employment and the termination of the Term.
5. Competition. Executive acknowledges that Executive has been provided with Confidential Information (as defined below) and, during the Term, the Company from time to time will provide Executive with access to Confidential Information. Ancillary to the rights provided to Executive as set forth in this Agreement and the Companys provision of Confidential Information, and Executives agreements regarding the use of same, in order to protect the value of any Confidential Information, the Company and Executive agree to the following provisions against unfair competition, which Executive acknowledges represent a fair balance of the Companys rights to protect its business and Executives right to pursue employment:
(a) Executive shall not, at any time during the Restriction Period (as defined below), directly or indirectly engage in, have any equity interest in, interview for a potential employment or consulting relationship with or manage, provide services to or operate any person, firm, corporation, partnership or business (whether as director, officer, employee, agent, representative, partner, security holder, consultant or otherwise) that engages in any business which competes with the Business (as defined below) in any geographic region in which the Company is engaged. Nothing herein shall prohibit Executive from being a passive owner of not more than 5% of the outstanding equity interest in any entity that is publicly traded, so long as Executive has no active participation in the business of such entity.
(b) Executive shall not, at any time during the Restriction Period, directly or indirectly, (i) solicit, divert or take away any customers, clients, or business acquisition or other business opportunity of the Company in competition with Company, (ii) contact or solicit, with respect to hiring, or hire any employee of the Company or any person employed by the Company at any time during the 12 (twelve) month period immediately preceding the Date of Termination, (iii) induce or otherwise counsel, advise or encourage any employee of the Company to leave the employment of the Company, or (iv) induce any distributor, representative or agent of the Company to terminate or modify its relationship with the Company.
(c) In the event the terms of this Section 5 shall be determined by any court of competent jurisdiction to be unenforceable by reason of its extending for too great a period of time or over too great a geographical area or by reason of its being too extensive in any other respect, it will be interpreted to extend only over the maximum period of time for which it may be enforceable, over the maximum geographical area as to which it may be enforceable, or to the maximum extent in all other respects as to which it may be enforceable, all as determined by such court in such action.
(d) As used in Sections 5, 6 and 7 (as applicable), (i) the term Company shall include Cyxtera Technologies, Inc. and its direct and indirect subsidiaries and controlled affiliates; (ii) the term Business shall mean the business of the Company as such business exists as of the date hereof and as such business may be expanded or altered by the Company during the Term and specifically includes providing (A) access and use rights to specified portions of the data centers to enable customers to locate and operate their customer colocation equipment therein, (B) access to electrical power necessary to operate such customer colocation equipment, (C) connectivity of such customer colocation equipment to external communication networks, and (D) ancillary services provided by Company during the Term in connection with the installation and use of their customer colocation equipment, the connection of such customer colocation equipment to power sources or external communications networks, and maintaining or optimizing the operation or performance of such customer colocation equipment; and (iii) the term Restriction Period shall mean the period beginning on the Effective Date and ending on the date 12 (twelve) months following the Date of Termination.
(e) Executive represents that Executives employment by the Company does not and will not breach any agreement with any former employer, including any non-compete agreement or any agreement to keep in confidence or refrain from using information acquired by Executive prior to Executives employment by the Company. During Executives employment by the Company, Executive agrees that Executive will not violate any non-solicitation agreements that Executive entered into with any former employer or improperly make use of, or disclose, any information or trade secrets of any former employer or other third party, nor will Executive bring onto the premises of the Company or its affiliates or use any unpublished documents or any property belonging to any former employer or other third party, in violation of any lawful agreements with that former employer or third party.
(f) Each Party (which, in the case of the Company, shall mean its officers and the members of the Board) agrees, during the Term and following the Date of Termination, to refrain from Disparaging (as defined below) the other Party and its affiliates, including, in the case of the Company, any of its services, technologies or practices, or any of its directors, officers, agents, representatives or stockholders, either orally or in writing. Nothing in this paragraph shall preclude any Party from making truthful statements that are reasonably necessary to comply with applicable law, regulation or legal process, or to defend or enforce a Partys rights under this Agreement. For purposes of this Agreement, Disparaging means making remarks, comments or statements, whether written or oral, that impugn the character, integrity, reputation or abilities of the Person being disparaged.
6. Nondisclosure of Proprietary Information.
(a) Except in connection with the faithful performance of Executives duties hereunder or pursuant to Section 6(c) and (e), Executive shall maintain in confidence and shall not directly, indirectly or otherwise, use, disseminate, disclose or publish, or use for Executives benefit or the benefit of any person, firm, corporation or other entity (other than the Company) any confidential or proprietary information or trade secrets of or relating to the Company (including, without limitation, business plans, business strategies and methods, acquisition targets, intellectual property in the form of patents, trademarks and copyrights and applications therefor, inventions, works, discoveries, improvements, information, documents, formulae, practices, processes, methods, developments, source code, modifications, technology, techniques, data, programs, other know-how or materials, owned, developed or possessed by the Company, whether in tangible or intangible form, information with respect to the Companys operations, processes, products, inventions, business practices, finances, principals, vendors, suppliers, customers, potential customers, marketing methods, costs, prices, contractual relationships, regulatory status, prospects and compensation paid to employees or other terms of employment) (collectively, the Confidential Information), or deliver to any person, firm, corporation or other entity any document, record, notebook, computer program or similar repository of or containing any such
Confidential Information. The Parties hereby stipulate and agree that, as between them, any item of Confidential Information is important, material and confidential and affects the successful conduct of the businesses of the Company (and any successor or assignee of the Company). Notwithstanding the foregoing, Confidential Information shall not include any information that has been published in a form generally available to the public or is publicly available or has become public knowledge prior to the date Executive proposes to disclose or use such information, provided, that such publishing or public availability or knowledge of the Confidential Information shall not have resulted from Executive directly or indirectly breaching Executives obligations under this Section 6(a). For the purposes of the previous sentence, Confidential Information will not be deemed to have been published or otherwise disclosed merely because individual portions of the information have been separately published, but only if material features comprising such information have been published or become publicly available.
(b) Upon termination of Executives employment with the Company for any reason, Executive will promptly deliver to the Company all correspondence, drawings, manuals, letters, notes, notebooks, reports, programs, plans, proposals, financial documents, or any other documents or property concerning the Companys customers, business plans, marketing strategies, products, property or processes.
(c) Executive may respond to a lawful and valid subpoena or other legal process but shall give the Company the earliest possible notice thereof, shall, as much in advance of the return date as possible, make available to the Company and its counsel the documents and other information sought and shall assist such counsel at Companys expense in resisting or otherwise responding to such process, in each case to the extent permitted by applicable laws or rules.
(d) Nothing in this Agreement shall prohibit Executive from (i) disclosing information and documents when required by law, subpoena or court order (subject to the requirements of Section 6(c) above), (ii) disclosing information and documents to Executives attorney, financial or tax adviser for the purpose of securing legal, financial or tax advice, (iii) disclosing Executives post-employment restrictions in this Agreement in confidence to any potential new employer, or (iv) retaining, at any time, Executives personal correspondence, Executives personal contacts and documents related to Executives own personal benefits, entitlements and obligations.
All rights to discoveries, inventions, improvements and innovations (including all data and records pertaining thereto) related to the business of the Company, whether or not patentable, copyrightable, registrable as a trademark, or reduced to writing, that Executive may discover, invent or originate during the Term, either during the course of performing work for the Companies or their clients or which are related in any manner to the business (commercial or experimental) of the Company or its clients, either alone or with others and whether or not during working hours or by the use of the facilities of the Company (Inventions), shall be the exclusive property of the Company. Executive shall promptly disclose all Inventions to the Company, shall execute at the request of the Company any assignments or other documents the Company may deem reasonably necessary to protect or perfect its rights therein, and shall assist the Company, upon reasonable request and at the Companys expense, in obtaining, defending and enforcing the Companys rights therein. Executive hereby appoints the Company as Executives attorney-in-fact to execute on Executives behalf any assignments or other documents reasonably deemed necessary by the Company to protect or perfect its rights to any Inventions.
8. Injunctive Relief.
It is recognized and acknowledged by Executive that a breach of the covenants contained in Sections 5, 6 and 7 will cause irreparable damage to Company and its goodwill, the exact amount of which will be difficult or impossible to ascertain, and that the remedies at law for any such breach will be inadequate. Accordingly, Executive agrees that in the event of a breach of any of the covenants contained in Sections 5, 6 and 7, in addition to any other remedy which may be available at law or in equity, the Company will be entitled to specific performance and injunctive relief without the requirement to post bond.
9. Assignment and Successors.
The Company may assign its rights and obligations under this Agreement to any of its controlled affiliates or to any corporation or other entity with or into which the Company may hereafter merge or consolidate or to which the Company may transfer all or substantially all of its assets, and in any such case said corporation or other entity shall by operation of law or expressly in writing assume all obligations of the Company hereunder as fully as if it had been originally made a party hereto, but no assignment will release the Company from this Agreement or any of its obligations hereunder. The Company may not otherwise assign this Agreement or its rights and obligations hereunder. This Agreement shall be binding upon and inure to the benefit of the Company, Executive and their respective successors, assigns, personnel and legal representatives, executors, administrators, heirs, distributees, devisees, and legatees, as applicable. None of Executives rights or obligations may be assigned or transferred by Executive, other than Executives rights to payments hereunder, which may be transferred only by will or operation of law. Notwithstanding the foregoing, Executive shall be entitled, to the extent permitted under applicable law and applicable Company Arrangements, to select and change a beneficiary or beneficiaries to receive compensation hereunder following Executives death by giving written notice thereof to the Company.
10. Certain Definitions.
(a) Cause. The Company shall have Cause to terminate Executives employment hereunder upon:
(i) Executives intentional and continued failure to substantially perform Executives material duties with the Company (other than any such failure resulting from Executives Disability), which Executive fails to cure within 30 (thirty) days after receipt of notice of such failure (describing in reasonable detail, to the extent practicable, the facts and circumstances constituting such failure to perform) if such failure is capable of being cured;
(ii) Executives intentional breach (solely in Executives capacity as an executive of the Company) of a material provision of this Agreement resulting in material economic harm to the Company, which Executive fails to cure within 30 (thirty) days after receipt of notice of such breach (describing in reasonable detail, to the extent practicable, the facts and circumstances constituting such breach) if such breach is capable of being cured;
(iii) Executives conviction, plea of no contest or plea of nolo contendere for any felony involving dishonesty or a breach of trust; or
(iv) Executives habitual, unlawful use of illegal drugs on the Companys (or any of its affiliates) premises or while performing Executives duties and responsibilities under this Agreement.
(b) Date of Termination. Date of Termination shall mean (i) if Executives employment is terminated by Executives death, the date of Executives death; (ii) if Executives employment is terminated pursuant to Section 3(a)(ii)-(vi) either the date indicated in the Notice of Termination or the date specified by the Company pursuant to Section 3(b), whichever is earlier.
(c) Disability. Disability shall mean, at any time the Company or any of its affiliates sponsors a long-term disability plan for the Companys employees, disability as defined in such long-term disability plan for the purpose of determining a participants eligibility for benefits, provided, however, if the long-term disability plan contains multiple definitions of disability, Disability shall refer to that definition of disability which, if Executive qualified for such disability benefits, would provide coverage for the longest period of time. The determination of whether Executive has a Disability shall be made by the person or persons required to make disability determinations under the long-term disability plan. At any time the Company does not sponsor a long-term disability plan for its employees, Disability shall mean Executives inability to substantially perform his or her material duties for the Company as a result of incapacity due to mental or physical illness, which inability continues for at least 120 (one hundred and twenty) consecutive calendar days and is determined to be total and permanent by a physician mutually agreed by the executive and the Company. Any refusal by Executive to submit to a medical examination for the purpose of determining Disability shall be deemed to constitute conclusive evidence of Executives Disability.
(d) Good Reason. For the sole purpose of determining Executives right to severance payments as described above, Executives resignation will be for Good Reason if Executive resigns within ninety days after any of the following events, unless Executive consents in writing to the applicable event: (i) a decrease in Executives Annual Base Salary, other than a reduction in Annual Base Salary of less than 10% (ten percent) that is implemented in connection with a contemporaneous and substantially commensurate reduction in annual base salaries affecting other senior executives of the Company or a successor, (ii) a material decrease in Executives authority or areas of responsibility as are commensurate with Executives then-current title or position, (iii) Companys breach of this Agreement, (iv) Companys failure to timely pay amounts due under this Agreement, or (v) relocation of Executives principal work location to a location more than 30 (thirty) miles from Executives then-current principal location of employment. Notwithstanding the foregoing, no Good Reason will have occurred unless and until Executive has: (a) provided the Company, within 60 (sixty) days of Executives knowledge of the occurrence of the facts and circumstances underlying the Good Reason event, written-notice stating with specificity the applicable facts and circumstances underlying such finding of Good Reason; and (b) provided the Company with an opportunity to cure the same within 30 (thirty) days after the receipt of such notice (except in the case of an event described in Section 10(d)(iv), in which case the Company shall cure the payment default as promptly as practicable but in any event within such 30 (thirty) day cure period).
(e) Person. Person shall mean any individual, firm, corporation, partnership, limited liability company, incorporated or unincorporated association, joint venture, joint stock company, trust, governmental authority or other entity of any kind.
11. Miscellaneous Provisions.
(a) Governing Law. This Agreement shall be governed, construed, interpreted and enforced in accordance with its express terms, and otherwise in accordance with the substantive laws of the State of Florida without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the State of Florida.
(b) Validity. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.
(c) Notices. Any notice, request, claim, demand, document and other communication hereunder to any Party shall be effective upon receipt (or refusal of receipt) and shall be in writing and delivered personally or sent by facsimile or certified or registered mail, postage prepaid, as follows:
(i) If to the Company:
Cyxtera Management, Inc.
2333 Ponce De Leon Blvd., Suite 900
Coral Gables, FL 33134
Attention: Chief Legal Officer
and copies to:
BC Partners, Inc.
650 Madison Avenue
New York, NY 10022
Attention: Fahim Ahmed
Medina Capital Advisors, LLC
BAC Colonnade Office Towers
2333 Ponce De Leon Blvd, Suite 900
Coral Gables, FL, 33134
Attention: Nelson Fonseca
(ii) If to Executive, at the last address that the Company has in its personnel records for Executive, or
(iii) At any other address as any Party shall have specified by notice in writing to the other Party.
(d) Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed to be an original, but all of which together will constitute one and the same Agreement. Signatures delivered by facsimile shall be deemed effective for all purposes.
(e) Entire Agreement. The terms of this Agreement are intended by the Parties to be the final expression of their agreement with respect to the subject matter hereof and supersede all prior understandings and agreements, whether written or oral. The Parties further intend that this Agreement shall constitute the complete and exclusive statement of their terms and that no extrinsic evidence whatsoever may be introduced in any judicial, administrative, or other legal proceeding to vary the terms of this Agreement.
(f) Amendments; Waivers. This Agreement may not be modified, amended, or terminated except by an instrument in writing, signed by Executive and a duly authorized officer of Company. By an instrument in writing similarly executed, Executive or a duly authorized officer of the Company may waive compliance by the other Party with any specifically identified provision of this Agreement that
such other Party was or is obligated to comply with or perform; provided, however, that such waiver shall not operate as a waiver of, or estoppel with respect to, any other or subsequent failure. No failure to exercise and no delay in exercising any right, remedy, or power hereunder preclude any other or further exercise of any other right, remedy, or power provided herein or by law or in equity.
(g) No Inconsistent Actions. The Parties hereto shall not voluntarily undertake or fail to undertake any action or course of action inconsistent with the provisions or essential intent of this Agreement. Furthermore, it is the intent of the Parties hereto to act in a fair and reasonable manner with respect to the interpretation and application of the provisions of this Agreement.
(h) Construction. This Agreement shall be deemed drafted equally by both the Parties. Its language shall be construed as a whole and according to its fair meaning. Any presumption or principle that the language is to be construed against any Party shall not apply. The headings in this Agreement are only for convenience and are not intended to affect construction or interpretation. Any references to paragraphs, subparagraphs, sections or subsections are to those parts of this Agreement, unless the context clearly indicates to the contrary. Also, unless the context clearly indicates to the contrary, (a) the plural includes the singular and the singular includes the plural; (b) and and or are each used both conjunctively and disjunctively; (c) any, all, each, or every means any and all, and each and every; (d) includes and including are each without limitation; (e) herein, hereof, hereunder and other similar compounds of the word here refer to the entire Agreement and not to any particular paragraph, subparagraph, section or subsection; and (f) all pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural as the identity of the entities or persons referred to may require.
(i) Arbitration. Any controversy, claim or dispute arising out of or relating to this Agreement, shall be settled solely and exclusively by a binding arbitration process under the Florida Arbitration Code in Miami, Florida. Such arbitration shall be conducted: (a) by one arbitrator who is a retired judge shall be chosen by mutual consent of the parties or by the Court pursuant to the Florida Arbitration code (b) each Party to the arbitration will pay one-half of the expenses and fees of the arbitrator, together with other expenses of the arbitration incurred or approved by the arbitrator; and (c) arbitration may proceed in the absence of any Party if written notice of the proceedings has been given to such Party. Each Party shall bear its own attorneys fees and expenses; provided that the arbitrator may assess the prevailing Partys fees and costs (including the fees and costs incurred by the arbitrator) against the non-prevailing Party as part of the arbitrators award. The Parties agree to abide by all decisions and awards rendered in such proceedings. Such decisions and awards rendered by the arbitrator shall be final and conclusive. All such controversies, claims or disputes shall be settled in this manner in lieu of any action at law or equity; provided, however, that nothing in this subsection shall be construed as precluding the bringing an action for injunctive relief or specific performance as provided in this Agreement. This dispute resolution process and any arbitration hereunder shall be confidential and neither any Party nor the neutral arbitrator shall disclose the existence, contents or results of such process without the prior written consent of all Parties, except where necessary or compelled in a Court to enforce this arbitration provision or an award from such arbitration or otherwise in a legal proceeding. Notwithstanding the foregoing, Executive and the Company each have the right to resolve any issue or dispute over intellectual property rights by Court action instead of arbitration.
(j) Enforcement. If any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws effective during the Term, such provision shall be fully severable; this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a portion of this Agreement; and the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance from this Agreement. Furthermore, in lieu of such illegal, invalid or unenforceable provision there shall be added automatically as part of this Agreement a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.
(k) Indemnification; Insurance. The Company shall defend, indemnify and hold Executive harmless from any and all liabilities, obligations, claims or expenses which arise in connection with or as a result of Executives service as an officer of the Company to the greatest extent allowed by law. During the Term and for a period of at least six years thereafter, Executive shall be entitled to the same directors and officers liability insurance coverage that the Company provides generally to its other directors and officers, as may be amended from time to time.
(l) Withholding. The Company shall be entitled to withhold from any amounts payable under this Agreement any federal, state, local or foreign withholding or other taxes or charges which the Company is required to withhold. The Company shall be entitled to rely on an opinion of counsel if any questions as to the amount or requirement of withholding shall arise.
(m) Section 409A.
(i) General. The intent of the Parties is that the payments and benefits under this Agreement comply with or be exempt from Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and guidance promulgated thereunder (collectively, Section 409A) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith.
(ii) Separation from Service. Notwithstanding anything in this Agreement to the contrary, any compensation or benefits payable under this Agreement that is considered nonqualified deferred compensation under Section 409A and is designated under this Agreement as payable upon Executives termination of employment shall be payable only upon Executives separation from service with the Company within the meaning of Section 409A (a Separation from Service) and, except as provided below, any such compensation or benefits described in Section 4 shall not be paid, or, in the case of installments, shall not commence payment, until the thirtieth (30th) day following Executives Separation from Service (the First Payment Date). Any installment payments that would have been made to Executive during the thirty (30) day period immediately following Executives Separation from Service but for the preceding sentence shall be paid to Executive on the First Payment Date and the remaining payments shall be made as provided in this Agreement.
(iii) Specified Employee. Notwithstanding anything in this Agreement to the contrary, if Executive is deemed by the Company at the time of Executives Separation from Service to be a specified employee for purposes of Section 409A, to the extent delayed commencement of any portion of the benefits to which Executive is entitled under this Agreement is required in order to avoid a prohibited distribution under Section 409A, such portion of Executives benefits shall not be provided to Executive prior to the earlier of (i) the expiration of the six-month period measured from the date of Executives Separation from Service with the Company or (ii) the date of Executives death. Upon the first business day following the expiration of the applicable Section 409A period, all payments deferred pursuant to the preceding sentence shall be paid in a lump sum to Executive (or Executives estate or beneficiaries), and any remaining payments due to Executive under this Agreement shall be paid as otherwise provided herein.
(iv) Expense Reimbursements. To the extent that any reimbursements under this Agreement are subject to Section 409A, any such reimbursements payable to Executive shall be paid to Executive no later than December 31 of the year following the year in which the expense was incurred; provided, that Executive submits Executives reimbursement request promptly following the date the expense is incurred, the amount of expenses reimbursed in one year shall not affect the amount eligible for reimbursement in any subsequent year, other than medical expenses referred to in Section 105(b) of the Code, and Executives right to reimbursement under this Agreement will not be subject to liquidation or exchange for another benefit.
(v) Installments. Executives right to receive any installment payments under this Agreement, including without limitation any continuation salary payments that are payable on Company payroll dates, shall be treated as a right to receive a series of separate payments and, accordingly, each such installment payment shall at all times be considered a separate and distinct payment as permitted under Section 409A. Except as otherwise permitted under Section 409A, no payment hereunder shall be accelerated or deferred unless such acceleration or deferral would not result in additional tax or interest pursuant to Section 409A.
12. Executive Acknowledgement.
Executive acknowledges that Executive has read and understands this Agreement, is fully aware of its legal effect, has not acted in reliance upon any representations or promises made by the Company other than those contained in writing herein, and has entered into this Agreement freely based on Executives own judgment.
[Signature Page Follows]
IN WITNESS WHEREOF, the Parties have executed this Agreement on the date and year first above written.
|CYXTERA MANAGEMENT, INC.|
|Name: Nelson Fonseca|
|(Solely for purposes of Section 2(g))|
|SIS Holdings LP|
|By:||SIS Holdings GP, LLC its General Partner|
|Name: Nelson Fonseca|
[Signature Page to Employment Agreement]
Separation Agreement and Release
This Separation Agreement and Release (Agreement) is made by and between Carlos Sagasta (Executive) and Cyxtera Management, Inc., a Delaware corporation (the Company) (collectively, referred to as the Parties or individually referred to as a Party). Capitalized terms used but not defined in this Agreement shall have the meanings set forth in the Employment Agreement (as defined below).
WHEREAS, the Parties have previously entered into that certain Employment Agreement, dated as of February [ ], 2020 (the Employment Agreement); and
WHEREAS, in connection with Executives termination of employment with the Company or a subsidiary or affiliate of the Company effective , 20 , the Parties wish to resolve any and all disputes, claims, complaints, grievances, charges, actions, petitions, and demands that Executive may have against the Company and any of the Releasees as defined below, including, but not limited to, any and all claims arising out of or in any way related to Executives employment with or separation from the Company or its subsidiaries or affiliates but, for the avoidance of doubt, nothing herein will be deemed to release any rights or remedies in connection with Executives ownership of vested equity securities of the Company or one of its affiliates or Executives right to indemnification by the Company or any of its affiliates pursuant to contract or applicable law (collectively, the Retained Claims).
NOW, THEREFORE, in consideration of the severance payments and benefits described in Section 4(b) of the Employment Agreement, which, pursuant to the Employment Agreement, are conditioned on Executives execution and non-revocation of this Agreement, and in consideration of the mutual promises made herein, the Company and Executive hereby agree as follows:
1. Severance Payments; Salary and Benefits. The Company agrees to provide Executive with the severance payments and benefits described in Section 4(b) of the Employment Agreement, payable at the times set forth in, and subject to the terms and conditions of, the Employment Agreement. In addition, to the extent not already paid, and subject to the terms and conditions of the Employment Agreement, the Company shall pay or provide to Executive all other payments or benefits described in Section 3(c) of the Employment Agreement, subject to and in accordance with the terms thereof.
2. Release of Claims. Executive agrees that, other than with respect to the Retained Claims, the foregoing consideration represents settlement in full of all outstanding obligations owed to Executive by the Company, any of its direct or indirect subsidiaries and affiliates (including, without limitation, BC Partners Limited and its affiliated entities), and any of their current and former officers, directors, equity holders, managers, employees, agents, investors, attorneys, shareholders, administrators, affiliates, benefit plans, plan administrators, insurers, trustees, divisions, and subsidiaries and predecessor and successor corporations and assigns (collectively, the Releasees). Executive, on his own behalf and on behalf of any of Executives affiliated companies or entities and any of their respective heirs, family members, executors, agents, and assigns, other than with respect to the Retained Claims, hereby and forever releases the Releasees from, and agrees not to sue concerning, or in any manner to institute, prosecute, or pursue, any claim, complaint, charge, duty, obligation, or cause of action relating to any matters of any kind, whether presently known or unknown, suspected or unsuspected, that Executive may possess against any of the Releasees arising from any omissions, acts, facts, or damages that have occurred up until and including the Effective Date of this Agreement (as defined in Section 7 below), including, without limitation:
(a) any and all claims relating to or arising from Executives employment or service relationship with the Company or any of its direct or indirect subsidiaries or affiliates and the termination of that relationship;
(b) any and all claims relating to, or arising from, Executives right to purchase, or actual purchase of any shares of stock or other equity interests of the Company or any of its affiliates, including, without limitation, any claims for fraud, misrepresentation, breach of fiduciary duty, breach of duty under applicable state corporate law, and securities fraud under any state or federal law;
(c) any and all claims for wrongful discharge of employment; termination in violation of public policy; discrimination; harassment; retaliation; breach of contract, both express and implied; breach of covenant of good faith and fair dealing, both express and implied; promissory estoppel; negligent or intentional infliction of emotional distress; fraud; negligent or intentional misrepresentation; negligent or intentional interference with contract or prospective economic advantage; unfair business practices; defamation; libel; slander; negligence; personal injury; assault; battery; invasion of privacy; false imprisonment; conversion; and disability benefits;
(d) any and all claims for violation of any federal, state, or municipal statute, including, but not limited to, Title VII of the Civil Rights Act of 1964; the Civil Rights Act of 1991; the Rehabilitation Act of 1973; the Americans with Disabilities Act of 1990; the Equal Pay Act; the Fair Credit Reporting Act; the Age Discrimination in Employment Act of 1967; the Older Workers Benefit Protection Act; the Employee Retirement Income Security Act of 1974; the Worker Adjustment and Retraining Notification Act; the Family and Medical Leave Act; and the Sarbanes-Oxley Act of 2002;
(e) any and all claims for violation of the federal or any state constitution;
(f) any and all claims arising out of any other laws and regulations relating to employment or employment discrimination;
(g) any claim for any loss, cost, damage, or expense arising out of any dispute over the non-withholding or other tax treatment of any of the proceeds received by Executive as a result of this Agreement; and
(h) any and all claims for attorneys fees and costs.
Executive agrees that the release set forth in this section shall be and remain in effect in all respects as a complete general release as to the matters released. This release does not release claims that cannot be released as a matter of law, including, but not limited to, Executives right to file a charge with or participate in a charge by the Equal Employment Opportunity Commission, or any other local, state, or federal administrative body or government agency that is authorized to enforce or administer laws related to employment, against the Company (with the understanding that Executives release of claims herein bars Executive from recovering such monetary relief from the Company or any Releasee), claims for unemployment compensation or any state disability insurance benefits pursuant to the terms of applicable state law, claims to continued participation in certain of the Companys group benefit plans pursuant to the terms and conditions of COBRA, claims to any benefit entitlements vested as the date of separation of Executives employment, pursuant to written terms of any employee benefit plan of the Company or its affiliates, Executives right to report possible violations of federal law or regulation to any governmental agency or entity in accordance with the whistleblower protection provisions of state or United States federal law or regulation (including the right to receive an award for information provided to any such government agencies) and Executives right under applicable law and any Retained Claims. This release further does not release claims for breach of Section 3(c) or Section 4 (b) of the Employment Agreement.
3. Acknowledgment of Waiver of Claims under ADEA. Executive understands and acknowledges that Executive is waiving and releasing any rights Executive may have under the Age Discrimination in Employment Act of 1967 (ADEA), and that this waiver and release is knowing and voluntary. Executive understands and agrees that this waiver and release does not apply to any rights or claims that may arise under the ADEA after the Effective Date of this Agreement. Executive understands and acknowledges that the consideration given for this waiver and release is in addition to anything of value to which Executive was already entitled. Executive further understands and acknowledges that Executive has been advised by this writing that: (a) Executive should consult with an attorney prior to executing this Agreement; (b) Executive has 21 days within which to consider this Agreement; (c) Executive has 7 days following Executives execution of this Agreement to revoke this Agreement pursuant to written notice to the General Counsel of the Company; (d) this Agreement shall not be effective until after the revocation period has expired; and (e) nothing in this Agreement prevents or precludes Executive from challenging or seeking a determination in good faith of the validity of this waiver under the ADEA, nor does it impose any condition precedent, penalties, or costs for doing so, unless specifically authorized by federal law. In the event Executive signs this Agreement and returns it to the Company in less than the 21 day period identified above, Executive hereby acknowledges that Executive has freely and voluntarily chosen to waive the time period allotted for considering this Agreement.
4. Severability. In the event that any provision or any portion of any provision hereof or any surviving agreement made a part hereof becomes or is declared by a court of competent jurisdiction or arbitrator to be illegal, unenforceable, or void, this Agreement shall continue in full force and effect without said provision or portion of provision.
5. No Oral Modification. This Agreement may only be amended in a writing signed by Executive and a duly authorized officer of the Company.
6. Governing Law; Dispute Resolution. This Agreement shall be subject to the provisions of Sections 11(a), 11(c) and 11(i) of the Employment Agreement.
7. Effective Date. If Executive has attained or is over the age of 40 (forty) as of the date of Executives termination of employment, then each Party has seven days after that Party signs this Agreement to revoke it and this Agreement will become effective on the eighth day after Executive signed this Agreement, so long as it has been signed by the Parties and has not been revoked by either Party before that date (the Effective Date). If Executive has not attained the age of 40 (forty) as of the date of Executives termination of employment, then the Effective Date shall be the date on which Executive signs this Agreement.
8. Voluntary Execution of Agreement. Executive understands and agrees that Executive executed this Agreement voluntarily, without any duress or undue influence on the part or behalf of the Company or any third party, with the full intent of releasing all of Executives claims against the Company and any of the other Releasees. Executive acknowledges that: (a) Executive has read this Agreement; (b) Executive has not relied upon any representations or statements made by the Company that are not specifically set forth in this Agreement; (c) Executive has been represented in the preparation, negotiation, and execution of this Agreement by legal counsel of his own choice or has elected not to retain legal counsel; (d) Executive understands the terms and consequences of this Agreement and of the releases it contains; and (e) Executive is fully aware of the legal and binding effect of this Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the Parties have executed this Agreement on the respective dates set forth below.
|CYXTERA MANAGEMENT, INC.|