EX-10.3 Employment Agreement



 






Exhibit
10.3




EMPLOYMENT AGREEMENT




     This Employment Agreement (“Agreement”) is made and entered into on this
8th day of November, 2006, effective as of the date set forth in paragraph 2.1 below,
and is by and between Terremark Worldwide, Inc., a Delaware corporation (the “Company”),
and Adam T. Smith (hereinafter called the “Executive”).



RECITALS




     A. The Executive possesses knowledge and skills which the Company believes will be of
substantial benefit to its operations and success, and the Company desires to employ the Executive
on the terms and conditions set forth below, on its behalf or on behalf of one or more of its
subsidiaries or affiliates.



     B. The Executive is willing to make his services available to the Company and its subsidiaries
and affiliates on the terms and conditions set forth below.



AGREEMENT




     NOW, THEREFORE, in consideration of the premises and mutual covenants set forth herein, the
parties agree as follows:



     1. Employment.



          1.1. Employment and Term. The Company hereby agrees to employ the Executive, and the
Executive hereby agrees to serve the Company, on the terms and conditions set forth herein.




          1.2. Duties of Executive. During the Term of Employment under this Agreement, the
Executive shall serve as the CHIEF LEGAL OFFICER for the Company, shall diligently perform all
services as may be assigned to her by the Board (provided that, such services shall not materially
differ from the services currently provided by the Executive), and shall exercise such power and
authority as may from time to time be delegated to her by the Board. The Executive shall devote
his full time and attention to the business and affairs of the Company, render such services to the
best of his ability, and use his best efforts to promote the interests of the Company. It shall
not be a violation of this Agreement for the Executive to (i) serve on corporate, civic or
charitable boards or committees, (ii) deliver lectures, fulfill speaking engagements or teach at
educational institutions, or (iii) manage personal investments, so long as such activities do not
significantly interfere with the performance of the Executive’s responsibilities to the Company in
accordance with this Agreement.




     2. Term.



          2.1. Commencement of Employment. The employment of the Executive under this Agreement
shall commence on October 20, 2006 (the “Commencement Date”).




          2.2. Termination of Employment. The period during which the Executive shall be employed by
the Company pursuant to the terms of this Agreement is sometimes referred to

 









 








in this Agreement as the “Term of Employment”. The Executive’s employment hereunder,
and the Term of Employment, shall continue until terminated upon notice by either the Company or
the Executive in accordance with Section 5, below.




     3. Compensation.



          3.1. Base Salary. The Executive shall receive a base salary at the annual rate of $185,000
(the “Base Salary”) during the Term of Employment, which such Base Salary shall be payable
in installments consistent with the Company’s normal payroll schedule, subject to applicable
withholding and other taxes. The Base Salary shall be reviewed, at least annually, for merit
increases and may, by action and in the sole discretion of the Board, be increased at any time or
from time to time.




          3.2. Bonuses. During the Term of Employment, the Executive shall be eligible to receive
bonuses in such amounts and at such times as the Board shall determine in its sold discretion.




     4. Expense Reimbursement and Other Benefits.



          4.1. Reimbursement of Expenses. Upon the submission of proper substantiation by the
Executive, and subject to such rules and guidelines as the Company may from time to time adopt, the
Company shall reimburse the Executive for all reasonable expenses actually paid or incurred by the
Executive during the Term of Employment in the course of and pursuant to the business of the
Company. The Executive shall account to the Company in writing for all expenses for which
reimbursement is sought and shall supply to the Company copies of all relevant invoices, receipts
or other evidence reasonably requested by the Company.




          4.2. Compensation/Benefit Programs. During the term of Employment, the Executive shall be
entitled to participate in all medical, dental, hospitalization, accidental death and
dismemberment, disability, travel and life insurance plans, and any and all other plans as are
presently and hereinafter offered by the Company to its executives, including savings, pension,
profit-sharing and deferred compensation plans, subject to the general eligibility and
participation provisions set forth in such plans.




          4.3. Working Facilities. During the Term of Employment, the Company shall furnish the
Executive with an office, administrative assistance and such other facilities and services suitable
to his/her position and adequate for the performance of his/her duties hereunder.




          4.4. Stock Options. During the Term of Employment, the Executive shall be eligible to be
granted options (the “Stock Options”) to purchase Common Stock under (and therefore subject
to all terms and conditions of) the Company’s 2000 Stock Option Plan, as amended, 2005 Executive
Incentive Compensation Plan, as amended, and any successor plan thereto (the “Stock Option
Plan”) and all rules of regulation of the Securities and Exchange Commission applicable to
stock option plans then in effect. The number of Stock Options and terms and conditions of the
Stock Options shall be determined by the Committee appointed pursuant to the Stock Option Plan, or
by the Board of Directors of the Company, in its sole discretion and pursuant to the Stock Option
Plan.




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          4.5. Other Benefits. The Executive shall be entitled to three weeks of vacation each
calendar year during the Term of Employment, (subject to the general eligibility provisions set
forth in Company’s personnel policy), to be taken at such times as the Executive and the Company
shall mutually determine and provided that no vacation time shall interfere with the duties
required to be rendered by the Executive hereunder. Any vacation time not taken by Executive
during any calendar year may not be carried forward into any succeeding calendar year, except in
accordance with general Company policy in effect from time to time. The Executive shall receive
such additional benefits, if any, as the Board of the Company shall from time to time determine.




     5. Termination.



          5.1. Termination for Cause. The Company shall at all times have the right, upon written
notice to the Executive, to terminate the Term of Employment, for Cause. For purposes of this
Agreement, the term “Cause” shall mean (i) an action or omission of the Executive which
constitutes a willful and material breach of, or failure or refusal (other than by reason of his
disability) to perform his duties under, this Agreement which is not cured within fifteen (15) days
after receipt by the Executive of written notice of same, (ii) fraud, embezzlement,
misappropriation of funds or breach of trust in connection with his services hereunder, (iii)
conviction of a felony or any other crime which involves dishonesty or a breach of trust, (iv)
gross negligence in connection with the performance of the Executive’s duties hereunder, which is
not cured within fifteen (15) days after receipt by the Executive of written notice of same.(v)
insubordination or other refusal to adhere to Company policy or the instructions of a superior, or
(vi) negligence by commission or omission that results in injury or damage to the Company. Any
termination for Cause shall be made in writing to the Executive, which notice shall set forth in
detail all acts or omissions upon which the Company is relying for such termination. The Executive
shall have the right to address the Company’s Board of Directors regarding the acts set forth in
the notice of termination. Upon any termination pursuant to this Section 5.1, the Company shall
only be obligated to pay to the Executive his Base Salary to the date of termination. The Company
shall have no further liability hereunder (other than for reimbursement for reasonable business
expenses incurred prior to the date of termination, subject, however, to the provisions of Section
4.1).




          5.2. Disability. The Company shall at all times have the right, upon written notice to the
Executive, to terminate the Term of Employment, if the Executive shall become entitled to benefits
under the Company’s group disability policy or any individual disability policy then in effect, or,
if the Executive shall as the result of mental or physical incapacity, illness or disability,
become unable to perform his obligations hereunder for a period of 90 days in any 12-month period.
The Company shall have sole discretion based upon competent medical advice to determine whether the
Executive continues to be disabled. Upon any termination pursuant to this Section 5.2, the Company
shall (i) pay to the Executive any unpaid Base Salary through the effective date of termination
specified in such notice, (ii) pay to the Executive a severance payment equal to one month of the
Executive’s Base Salary at the time of the termination of the Executive’s employment with the
Company. The Company shall have no further liability hereunder (other than for reimbursement for
reasonable business expenses incurred prior to the date of termination, subject, however to the
provisions of Section 4.1).




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          5.3 Death. Upon the death of the Executive during the Term of Employment, the Company
shall pay to the estate of the deceased Executive any unpaid Base Salary through the Executive’s
date of death. The Company shall have no further liability hereunder (other than for reimbursement
for reasonable business expenses incurred prior to the date of the Executive’s death, subject,
however to the provisions of Section 4.1).




          5.4. Termination Without Cause. At any time the Company shall have the right to terminate
the Term of Employment by written notice to the Executive. Upon any termination pursuant to this
Section 5.4 (that is not a termination under any of Sections 5.1, 5.2, 5.3, 5.5 or 5.6), the
Company shall (i) pay to the Executive any unpaid Base Salary through the effective date of
termination specified in such notice, (ii) continue to pay the Executive’s Base Salary for a period
(the “Continuation Period”) of six (6) months from the effective date of termination
hereunder, (iii) continue to provide the Executive with the benefits he/she was receiving under
Sections 4.2 and 4.4 hereof (the “Benefits”) through the end of the Continuation Period in
the manner and at such times as the Incentive Compensation or Benefits otherwise would have been
payable or provided to the Executive. In the event that the Company is unable to provide the
Executive with any Benefits required hereunder by reason of the termination of the Executive’s
employment pursuant to this Section 5.4, then the Company shall pay the Executive cash equal to the
value of the Benefit that otherwise would have accrued for the Executive’s benefit under the plan,
for the period during which such Benefits could not be provided under the plans. The Company’s
good faith determination of the amount that would have been contributed or the value of any
Benefits that would have accrued under any plan shall be binding and conclusive on the Executive.
For this purpose, the Company may use as the value of any Benefit the cost to the Company of
providing that Benefit to the Executive. Further, the vesting of the Executive’s Stock Options, if
any, shall be subject to the terms of the Stock Option Plan. The Company shall have no further
liability hereunder (other than for (x) reimbursement for reasonable business expenses incurred
prior to the date of termination, subject, however, to the provisions of Section 4.1, and (y)
payment of compensation for unused vacation days accumulated in accordance with the Company’s then
general policy).




          5.5. Termination by Executive.




               (a) The Executive shall at all times have the right, upon sixty (60) days written notice to
the Company, to terminate the Term of Employment.



               (b) Upon termination of the Term of Employment pursuant to this Section 5.5 (that is not a
termination under Section 5.6) by the Executive without Good Reason, the Company shall pay to the
Executive any unpaid Base Salary through the effective date of termination specified in such
notice. The Company shall have no further liability hereunder (other than for reimbursement for
reasonable business expenses incurred prior to the date of termination, subject, however, to the
provisions of Section 4.1). At the Company’s sole option, upon receipt of notice from the
Executive pursuant to this Section, the Company may immediately terminate the Term of Employment,
in which case, in addition to the covenants set forth above, the Company shall pay the Executive 60
days of Base Salary.



               (c) Upon termination of the Term of Employment pursuant to this Section 5.5 (that is not a
termination under Section 5.6) by the Executive for Good Reason, the



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Company shall pay to the Executive the same amounts that would have been payable by the
Company to the Executive under Section 5.4 of this Agreement if the Term of Employment had been
terminated by the Company without Cause. The Company shall have no further liability hereunder.




               (d) For purposes of this Agreement, “Good Reason” shall mean (i) the assignment to the
Executive of any duties or responsibilities inconsistent in any respect with the Executive’s
position or a similar position in the Company or one of its subsidiaries, as contemplated by
Section 1.2 of this Agreement, or any other action by the Company which results in a substantial
and compelling diminution in such position, authority, duties or responsibilities, excluding for
this purpose an isolated, insubstantial and inadvertent action not taken in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by the Executive; (ii) any
failure by the Company to comply with any of the provisions of Article 3 of this Agreement, other
than an isolated, insubstantial and inadvertent failure not occurring in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by the Executive; (iii) the
Company’s requiring the Executive to be based at any office or location outside of the area for
which Executive was originally hired to work except for travel reasonably required in the
performance of the Executive’s responsibilities. For purposes of this Section 5.5(d), any good
faith determination of “Good Reason” made by the Board shall be conclusive.



          5.6. Change in Control of the Company.




               (a) In the event that (i) a Change in Control (as defined in paragraph (b) of this Section
5.6) in the Company shall occur during the Term of Employment, and (ii) within one year after the
date of the Change in Control, either (x) the Term of Employment is terminated by the Company
without Cause, pursuant to Section 5.4 hereof or (y) the Executive terminates the Term of
Employment for Good Reason, the Company shall (1) pay to the Executive any unpaid Base Salary
through the effective date of termination, (2) pay to the Executive as a single lump sum payment,
within 30 days of the termination of his employment hereunder, a lump sum payment equal to the sum
of (x) two times the sum of Executive’s annual Base Salary, Incentive Compensation, and the value
of the annual fringe benefits (based upon their cost to the Company) required to be provided to the
Executive under Sections 4.2 and 4.4 hereof, for the year immediately preceding the year in which
his employment terminates, plus (y) the value of the portion of his benefits under any savings,
pension, profit sharing or deferred compensation plans that are forfeited under those plans by
reason of the termination of his employment hereunder. The Company shall have no further liability
hereunder (other than for (1) reimbursement for reasonable business expenses incurred prior to the
date of termination, subject, however, to the provisions of Section 4.1, and (2) payment of
compensation for unused vacation days that have accumulated during the calendar year in which such
termination occurs).



               (b) For purposes of this Agreement, the term “Change in Control” shall mean:




                    (i) Approval by the shareholders of the Company of (x) a reorganization, merger,
consolidation or other form of corporate transaction or series of transactions, in each
case, with respect to which persons who were the shareholders of the



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Company immediately prior to such reorganization, merger or consolidation or other
transaction do not, immediately thereafter, own more than 50% of the combined voting power
entitled to vote generally in the election of directors of the reorganized, merged or
consolidation company’s then outstanding voting securities, in substantially the same
proportions as their ownership immediately prior to such reorganization, merger,
consolidation or other transaction, or (y) a liquidation or dissolution of the Company or
(z) the sale of all or substantially all of the assets of the Company (unless such
reorganization, merger, consolidation or other corporate transaction, liquidation,
dissolution or sale is subsequently abandoned);




                    (ii) the acquisition (other than the Company) by any person or “group”, within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act, of more than 30%
of either the then outstanding shares of the Company’s Common Stock or the combined voting
power of the Company’s then outstanding voting securities entitled to vote generally in the
election of directors (hereinafter referred to as the ownership of a “Controlling
Interest”) excluding, for this purpose, any acquisitions by (1) the Company or its
Subsidiaries, (2) any person, entity or “group” that as of the Commencement Date of
this Agreement owns beneficial ownership (within the meaning of Rule 13d-3 promulgated under
the Securities Exchange Act) of a Controlling Interest or (3) any employee benefit plan of
the Company or its Subsidiaries.




                    (iii) The resignation of Manuel D. Medina as both Chairman and CEO of the Company, his
death, or his absence from the day to day business affairs of the Company for more than 90
consecutive days due to disability or incapacity.



          5.7. Resignation. Upon any notice or termination of employment pursuant to this Article 5,
the Executive shall automatically and without further action be deemed to have resigned as an
officer, and if he or she was then serving as a director of the Company, as a director, and if
required by the Board, the Executive hereby agrees to immediately execute a resignation letter to
the Board.




          5.8. Survival. The provisions of this Article 5 shall survive the termination of this
Agreement, as applicable.




     6. Restrictive Covenants.



          6.1 Non-competition. At all times while the Executive is employed by the Company and for
a one year period after the termination of the Executive’s employment with the Company for any
reason (other than by the Company without Cause (as defined in Section 5.1 hereof) or by the
Executive for Good Reason (as defined in Section 5.5(d) hereof)), the Executive shall not, directly
or indirectly, engage in or have any interest in any sole proprietorship, partnership, corporation
or business or any other person or entity (whether as an employee, officer, director, partner,
agent, security holder, creditor, consultant or otherwise) that directly or indirectly (or through
any affiliated entity) engages in competition with the Company (based on the business in which the
Company was engaged or was actively planning on being engaged as of the date of termination of the
Employee’s employment and in the geographic areas in which the Company operated or was actively
planning on operating as of date of termination

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of the Employee’s employment); provided that such provision shall not apply to the executive’s
ownership of: Common Stock of the Company or the acquisition by the Executive, solely as an
investment, of securities of any issuer that is registered under Section 12(b) or 12(g) of the
Securities Exchange Act of 1934, as amended, and that are listed or admitted for trading on any
United States national securities exchange or that are quoted on the National Association of
Securities Dealers Automated Quotations System, or any similar system or automated dissemination of
quotations of securities prices in common use, so long as the Executive does not control, acquire a
controlling interest in or become a member of a group which exercises direct or indirect control
or, more than five percent of any class of capital stock of such corporation.




          6.2. Nondisclosure. The Executive shall not at any time divulge, communicate, use to the
detriment of the Company or for the benefit of any other person or persons, or misuse in any way,
any Confidential Information (as hereinafter defined) pertaining to the business of the Company.
Any Confidential Information or data now or hereafter acquired by the Executive with respect to the
business of the Company (which shall include, but not be limited to, information concerning the
Company’s financial condition, prospects, technology, customers, suppliers, sources of leads and
methods of doing business) shall be deemed a valuable, special and unique asset of the Company that
is received by the Executive in confidence and as a fiduciary, and Executive shall remain a
fiduciary to the Company with respect to all of such information. For purposes of this Agreement,
“Confidential Information” means information disclosed to the Executive or known by the
Executive as a consequence of or through his employment by the Company (including information
conceived, originated, discovered or developed by the Executive) prior to or after the date hereof,
and not generally known, about the Company or its business. Notwithstanding the foregoing, nothing
herein shall be deemed to restrict the Executive from disclosing Confidential Information to the
extent required by law.




          6.3. Nonsolicitation of Employees and Clients. At all times while the Executive is
employed by the Company and for a two (2) year period after the termination of the Executive’s
employment with the Company for any reason, the Executive shall not, directly or indirectly, for
herself or for any other person, firm, corporation, partnership, association or other entity (a)
employ or attempt to employ or enter into any contractual arrangement with any employee or former
employee of the Company, unless such employee or former employee has not been employed by the
Company for a period in excess of six months, and/or (b) call on or solicit any of the actual or
targeted prospective clients of the Company on behalf of any person or entity in connection with
any business competitive with the business of the Company, nor shall the Executive make known the
names and addresses of such clients or any information relating in any manner to the Company’s
trade or business relationships with such customers, other than in connection with the performance
of Executive’s duties under this Agreement.




          6.4. Ownership of Developments. All copyrights, patents, trade secrets, or other
intellectual property rights associated with any ideas, concepts, techniques, inventions,
processes, or works of authorship developed or created by Executive during the course of performing
work for the Company or its clients (collectively, the “Work Product”) shall belong
exclusively to the Company and shall, to the extent possible, be considered a work made by the
Executive for hire for the Company within the meaning of Title 17 of the United States Code. To
the extent the Work Product may not be considered work made by the Executive for hire for

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the Company, the Executive agrees to assign, and automatically assign at the time of creation
of the Work Product, without any requirement of further consideration, any right, title, or
interest the Executive may have in such Work Product. Upon the request of the Company, the
Executive shall further actions, including execution and delivery of instruments of conveyance, as
may be appropriate to give full proper effect to such assignment.




          6.5. Books and Records. All books, records, and accounts relating in any manner to the
customers or clients of the Company, whether prepared by the Executive or otherwise coming into the
Executive’s possession, shall be exclusive property of the Company and shall be returned
immediately to the Company on termination of the Executive’s employment hereunder or on the
Company’s request at any time.




          6.6. Definition of Company. Solely for purposes of this Article 6, the term
“Company” also shall include any existing or future subsidiaries of the Company that are
operating during the time periods described herein and any other entities that directly or
indirectly, through one or more intermediaries, control, are controlled by or are under common
control with the Company during the periods described herein.




          6.7. Acknowledgment by Executive. The Executive acknowledges and confirms that (a) the
restrictive covenants contained in this Article 6 are reasonably necessary to protect the
legitimate business interest of the Company, and (b) the restrictions contained in this Article 6
(including without limitation the length of the term of the provisions of this Article 6) are not
overbroad, overlong, or unfair and are not the result of overreaching, duress or coercion of any
kind. The Executive further acknowledges and confirms that this full, uninhibited and faithful
observance of each of the covenants contained in this Article 6 will not cause her any undue
hardship, financial or otherwise, and that enforcement of each of the covenants contained herein
will not impair his ability to obtain employment commensurate with his abilities and on terms fully
acceptable to her or otherwise to obtain income required for the comfortable support of her and his
family and the satisfaction of the needs of his creditors. The Executive acknowledges and confirms
that his special knowledge of the business of the Company is such as would cause the Company
serious injury or loss if he were to use such ability and knowledge to the benefit of a competitor
or were to compete with the Company in violation of the terms of this Article 6. The Executive
further acknowledges that the restrictions contained in this Article 6 are intended to be, and
shall be, for the benefit of and shall be enforceable by, the Company’s successors and assigns.




          6.8. Reformation by Court. In the event that a court of competent jurisdiction shall
determine that any provision of this Article 6 is invalid or more restrictive than permitted under
the governing law of such jurisdiction, then only as to enforcement of this Article 6 within the
jurisdiction of such court, such provision shall be interpreted and enforced as if it provided for
the maximum restriction permitted under such governing law.




          6.9. Extension of Time. If the Executive shall be in violation of any provision of this
Article 6, then each time limitation set forth in this Article 6 shall be extended for a period of
time equal to the period of time during which such violation or violations occur. If the Company
seeks injunctive relief from such violation in any court, then the covenants set forth in

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this Article 6 shall be extended for a period of time equal to the pendency of such proceeding
including all appeals by the Executive.




          6.10. Survival. The provisions of this Article 6 shall survive the termination of this
Agreement, as applicable.




     7. Injunction. It is recognized and hereby acknowledged by the parties hereto that a
breach by the Executive of any of the covenants contained in Article 6 of this Agreement will cause
irreparable harm and damage to the Company, the monetary amount of which may be virtually
impossible to ascertain. As a result, the Executive recognizes and hereby acknowledges that the
Company shall be entitled to an injunction from any court of competent jurisdiction enjoining and
restraining any violation of any or all of the covenants contained in Article 6 of this Agreement
by the Executive or any of his affiliates, associates, partners or agents, either directly or
indirectly, and that such right to injunction shall be cumulative and in addition to whatever other
remedies the Company may possess.



     8. Assignment. Neither party shall have the right to assign or delegate his rights or
obligations hereunder, or any portion thereof, to any other person.



     9. Governing Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of Florida.



     10. Section 162(m) Limits. Notwithstanding any other provision of this Agreement to the
contrary, if and to the extent that any remuneration payable by the Company to the Executive for
any year would exceed the maximum amount of remuneration that the Company may deduct for that year
under Section 162(m) (“Section 162(m)”) of the Internal Revenue Code of 1986, as amended
(the “Code”), payment of the portion of the remuneration for that year that would not be so
deductible under Section 162(m) shall, in the sole discretion of the Board, be deferred and become
payable at such time or times as the Board determines that it first would be deductible by the
Company under Section 162(m), with interest at the “short-term applicable rate” as such
term is defined in Section 1274(d) of the Code. The limitation set forth under this Section 10
shall not apply with respect to any amounts payable to the Executive pursuant to Article 5 hereof.



     11. Entire Agreement. This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and, upon its effectiveness, shall supersede all
prior agreements, understandings and arrangements, both oral and written, between the Executive and
the Company (or any of its affiliates) with respect to such subject matter. This Agreement may not
be modified in any way unless by a written instrument signed by both the Company and the Executive.



     12. Notices. All notices required or permitted to be given hereunder shall be in writing
and shall be personally delivered by courier, sent by registered or certified mail, return receipt
requested or sent by confirmed facsimile transmission addressed as set forth herein. Notices
personally delivered, sent by facsimile or sent by overnight courier shall be deemed given on the
date of delivery and notices mailed in accordance with the foregoing shall be deemed given upon the
earlier of receipt by the addressee, as evidenced by the return receipt thereof, or three (3) days
after deposit in the U.S. mail. Notice shall be sent (i) if to the



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Company, addressed to Terremark Worldwide, Inc., 2601 S. Bayshore Drive, 9th Floor, Miami,
Florida 33133, Attn: Jose Segrera, Executive Vice-President and Chief Financial Officer, and (ii)
if to the Executive, to her address as reflected on the payroll records of the Company, or to such
other address as either party hereto may from time to time give notice of to the other.




     13. Benefits; Binding Effect. This Agreement shall be for the benefit of and binding upon
the parties hereto and their respective heirs, personal representatives, legal representatives,
successors and, where applicable, assigns, including, without limitation, any successor to the
Company, whether by merger, consolidation, sale of stock, sale of assets or otherwise.



     14. Severability. The invalidity of any one or more of the words, phrases, sentences,
clauses or sections contained in this Agreement shall not affect the enforceability of the
remaining portions of this Agreement or any part thereof, all of which are inserted conditionally
on their being valid in law, and, in the event that any one or more of the words, phrases,
sentences, clauses or sections contained in this Agreement shall be declared invalid, this
Agreement shall be construed as if such invalid word or words, phrase or phrases, sentence or
sentences, clause or clauses, or section or sections had not been inserted. If such invalidity is
caused by length of time or size of area, or both, the otherwise invalid provision will be
considered to be reduced to a period or area which would cure such invalidity.



     15. Waivers. The waiver by either party hereto of a breach or violation of any term or
provision of this Agreement shall not operate nor be construed as a waiver of any subsequent breach
or violation.



     16. Damages. Nothing contained herein shall be construed to prevent the Company or the
Executive from seeking and recovering from the other damages sustained by either or both of them as
a result of its or his breach of any term or provision of this Agreement. In the event that either
party hereto brings suit for the collection of any damages resulting from, or the injunction of any
action constituting, a breach of any of the terms or provisions of this Agreement, then the party
found to be at fault shall pay all reasonable court costs and attorneys’ fees of the other.



     17. Section Headings. The section headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of this Agreement.



     18. No Third Party Beneficiary. Nothing expressed or implied in this Agreement is
intended, or shall be construed, to confer upon or give any person other than the Company, the
parties hereto and their respective heirs, personal representatives, legal representatives,
successors and assigns, any rights or remedies under or by reason of this Agreement.



     19. Indemnification. The indemnification obligations of the Company to Executive shall be
in accordance with the Company’s standard indemnity agreement.



     20. Attorneys’ Fees. In the event of any litigation arising out of or in any way related
to this Agreement, the prevailing party shall be entitled to an award of reasonable attorneys’ fees
and costs incurred in connection therewith.



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     21. Controlling Agreement. This Agreement shall supersede, replace and be considered a
novation of any prior agreements, contracts, offer letters, oral promises and the like regarding
compensation, employment, benefits or any other subject addressed herein.



     IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above
written.



	 	 	 	 	 
	 	COMPANY:





TERREMARK WORLDWIDE, INC.

 	 
	 	By:  	/s/ Manuel D. Medina
 	 
	 	 	Name:  	Manuel D. Medina 	 
	 	 	Title:  	Chief Executive Officer 	 
	 
	 	EXECUTIVE:

 	 
	 	By:  	/s/ Adam T. Smith
 	 
	 	 	Name:  	Adam T. Smith 	 
	 	 	 	 
	 




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