EMPLOYMENT AGREEMENT
AGREEMENT, executed on this 15th day of October, 1996 and
effective as of August 1, 1996 between Telscape International,
Ltd., a Texas corporation (the "Company"), and Xxxxxx Xxxxx
Xxxxx, a resident of Texas (the "Employee").
W I T N E S S E T H:
WHEREAS, the Employee is a highly valued and trusted employee of the
Company; and
WHEREAS, the Company desires to offer the Employee continued employment
upon the terms and conditions set forth herein and the Employee desires to
accept such employment; and
NOW THEREFORE in consideration of the mutual benefits to be derived
from this Agreement, the Company and the Employee hereby agree as follows:
Term of Employment; Office and Duties.
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(a) During the Period of Employment (as hereinafter defined),
the Company, shall employ the Employee with the titles of President and Chief
Executive Officer, with the duties and responsibilities prescribed for such
offices in the Bylaws of the Company and such subsidiaries, and with such
additional duties and responsibilities consistent with such positions as may
from time to time be assigned to the Employee by the Board of Directors of the
Company (the "Board of Directors"). Employee agrees to perform such duties
and discharge such responsibilities in accordance with the terms of this
Agreement.
(b) During the Period of Employment, the Employee shall devote
substantially all of his working time and attention to the business and
affairs of the Company and its subsidiaries, other than during vacations
(which shall be of a duration that is consistent with the policies of the
Company) and periods of illness or incapacity;
provided, however, that nothing
in this Agreement shall preclude the Employee from devoting time required:
(i) for serving as a director or officer of any organization or entity
involving no conflict of interest with the Company; (ii) delivering lectures,
fulfilling speaking engagements or participating in activities of professional
associations including xxxxxxxx of commerce; and (iii) engaging in charitable
and community activities; provided that, such activities do not interfere with
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the performance of his duties hereunder and attention to the business and
affairs of the Company.
Term; Period of Employment
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The period of employment hereunder (the "Period of Employment") shall
commence on the date hereof (the "Effective Date") and, unless sooner
terminated pursuant to this Agreement, shall terminate on the third
anniversary of the Effective Date. The Period of Employment may be extended
by the written agreement of the Company and Employee.
Compensation and Benefits.
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For all services rendered by the Employee in any capacity during the
Period of Employment, including without limitation, services as an executive
officer, director, or member of any committee of the Company or any
subsidiary, affiliate or division thereof, the Employee shall be compensated
as follows:
(a) Base Salary. The Company shall pay the Employee a fixed
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salary ("Base Salary") at a rate of Ninety-five Thousand Dollars (US $95,000)
per year. The Board of Directors will periodically review, at least annually,
the Employee's Base Salary with a view to increasing such Base Salary if, in
the judgment of the Board of Directors, the earnings of the Company or the
services of the Employee merit such an increase. Annual increases in Base
Salary, once granted, shall not be subject to revocation and shall become a
part of the Base Salary. Base Salary will be payable in accordance with the
customary payroll practices of the Company, but in no event less frequently
than monthly.
(b) Bonus. The Company may pay the Employee a bonus if, in the
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judgment of the Board of Directors, the earnings of the Company or the
services of the Employee merit such bonus.
(c) Fringe Benefits. During the Period of Employment, the
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Employee shall be entitled to participate in such fringe benefit, insurance,
deferred compensation and stock option plans or programs of the Company, if
any, to the extent that his position, tenure, salary, age, health and other
qualifications make him eligible to participate, subject to the rules and
regulations applicable thereto. Such additional benefits shall include, but
not be limited to, paid sick leave and individual health insurance, all in
accordance with the policies of the Company. Except as specifically set forth
herein, the terms of, and participation by the Employee in, any such plan or
program shall be determined by the Board of Directors in its sole discretion.
In the event of the Employee's disability, the Employee and his family shall
continue to be covered by all of the Company's life, medical, health and
dental plans, at the Company's expense, for lesser of the term of such
disability or the remaining term of the Period of Employment. In the event of
the Employee's death, the Employee's family shall continue to be covered by
all of the Company's medical, health and dental plans, at the Company's
expense, for twenty-four (24) months following the Employee's death.
(d) Withholding and Employment Tax. Payment of all compensation
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hereunder shall be subject to customary withholding tax and other employment
taxes and deductions as may be required with respect to compensation paid by
an employer/corporation to an employee.
(e) Vacations. Employee shall be entitled to annual vacations
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in accordance with the policies of the Company.
Business Expenses.
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The Company shall pay or reimburse the Employee for all reasonable
travel or other expenses incurred by the Employee in connection with the
performance of his duties under this Agreement, including reimbursement for
attending meetings of the Board of Directors, in accordance with such
procedures as the Company may from time to time establish for senior officers
and as required to preserve any deductions for income taxation purposes to
which the Company may be entitled.
Termination of Employment.
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Notwithstanding any other provision of this Agreement, the Period of
Employment may be terminated:
(a) By the Company, in the event of the Employee's death,
Disability (as hereinafter defined) or for Cause (as hereinafter defined).
For purposes of this Agreement, "Cause" shall mean Employee's conviction of a
crime involving an act or acts of dishonesty, fraud or moral turpitude by the
Employee, which act or acts constitute a felony and the willful and continued
failure to substantially perform Employee's duties hereunder after receipt of
written notice from the Company specifically setting forth such failure. For
purposes of this Agreement, "Disability" shall mean the inability of Employee,
in the reasonable judgment of a physician appointed by the Board of Directors,
to perform his duties of employment for the Company or any of its subsidiaries
because of any physical or mental disability or incapacity, where such
disability shall exist for an aggregate period of more than 120 days in any
365-day period or for any period of 90 consecutive days. The Company shall by
written notice to the Employee specify the event relied upon for termination
pursuant to this Subsection 5(a), and the Period of Employment hereunder shall
be deemed terminated as of the date of such notice. In the event of any
termination under this Subsection 5(a), the Company shall pay all amounts then
due to the Employee under Section 3(a) of this Agreement, in addition to any
severance payments required by law, and, if such termination was due to Cause,
the Company shall have no further obligations to Employee under this
Agreement.
(b) By the Company, for any reason and in its sole and absolute
discretion, provided that in such event the Company shall, in addition to any
severance payments required by law, as liquidated damages or severance pay, or
both, continue to pay to the Employee the Base Salary for a period of one year
after such termination.
(c) By the Employee, (i) if the Company's Board of Directors
fails to elect or reelect the Employee to, or removes the Employee from, any
of the offices referred to in Section 1(a) or (ii) if the Employee is not
elected or re-elected, or is removed from the Board of Directors of the
Company other than for Cause or failure
to discharge properly his duties in
any such offices or at the direction of the Company. In the event of any
termination under this Section 5(c), the Company shall, in addition to any
severance payments required by law, as liquidated damages or severance pay, or
both, continue to pay to the Employee the Base Salary for a period of one year
after such termination.
(d) During any period in which payments are payable by the
Company to Employee pursuant to Sections 5(b) or 5(c) hereof (such payments
being hereinafter collectively referred to as "Termination Payments"),
Employee and his family shall continue to be covered by the Company's life,
medical, health and death plans. Such coverage shall be at the Company's
expense to the same extent as if Employee were still employed by the Company.
Non-Competition.
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During the Period of Employment hereunder and for the one year period
thereafter, the Employee shall not, anywhere within the United Mexican
States, the United States of America or anywhere else in the world in which
the Company (or any of its subsidiaries) is then doing business, engage as an
individaul, in activities in competition with the business of the Company,
including but not limited to any aspect of the teleconferencing or
telecommunications. In addition, for one year following the later of the
last day of the Period of Employment or the payment of the last Termination
Payment hereunder, the Employee shall not, within any jurisdiction in which
the Company or any subsidiary of the Company is then doing business, or within
a one hundred (100) mile radius of any such jurisdiction, engage in
activities in competition with the business of the Company or any subsidiary
as an individual. Investments in less than five percent of the outstanding
securities of any class of a publicly-traded company shall not be prohibited
by this Section 6.
Inventions and Confidential Information.
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The parties hereto recognize that a major need of the Company is to
preserve its specialized knowledge, trade secrets, and confidential
information. The strength and good will of the Company is derived from the
specialized knowledge, trade secrets, and confidential information generated
from experience with the activities undertaken by the Company and its
subsidiaries. The disclosure of this information and knowledge to
competitors would be beneficial to them and detrimental to the Company, as
would the disclosure of information about the marketing practices, pricing
practices, costs, profit margins, design specifications, analytical
techniques, and similar items of the Company and its subsidiaries. By reason
of his being a senior executive of the Company, the Employee has or will have
access to, and has obtained or will obtain, specialized knowledge, trade
secrets and confidential information about the Company's operations and the
operations of its subsidiaries, which operations extend throughout the United
Mexican States. Therefore, the Employee hereby agrees as follows, recognizing
that the Company is relying on these agreements in entering into this
Agreement:
(i) During and after the Period of Employment hereunder the
Employee will maintain as confidential and will not use, disclose
to others, or publish or otherwise make available to any other
party any inventions or any confidential business information
about the affairs of the Company and its subsidiaries, including
but not limited to confidential information concerning their
products, methods, product purchasing arrangements and agreements,
product distribution arrangements and agreements, engineering
designs, system designs and standards, analytical techniques,
technical information, customer information, employee information,
and other confidential information acquired by him in the course
of his past or future services for the Company. Employee agrees
to hold as the Company's property all memoranda, books, papers,
letters, formulas and other data, and all copies thereof and
therefrom, in any way relating to the Company's or its
subsidiaries' businesses and affairs, whether made by him or
otherwise coming into his possession, and on termination of his
employment, or on demand of the Company, at any time, to deliver the
same to the Company within twelve (12) hours of such termination
or demand.
(ii) During the Period of Employment hereunder and for one year
following the last day of the Period of Employment, the Employee
will not induce or otherwise attempt to influence any employee of
the Company or its subsidiaries, to leave such entity's employment
(unless the Board of Directors shall have authorized such
employment and the Company shall have consented thereto in
writing).
Indemnification.
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The Company will indemnify the Employee (and his legal representatives)
to the fullest extent permitted by the laws of the state in which the Company
is incorporated, as in effect at the time of the subject act or omission, or
the Certificate of Incorporation and Bylaws of the Company, as in effect at
such time or on the date of this Agreement, whichever affords greater
protection to the Employee, and the Employee shall be entitled to the
protection of any insurance policies the Company may elect to maintain
generally for the benefit of its directors and officers, against all costs,
charges and expenses whatsoever incurred or sustained by him or his legal
representative in connection with any action, suit or proceeding to which he
(or his legal representatives or other successors) may be made a party by
reason of his being or having been a director or officer of the Company or
any of its subsidiaries.
Litigation Expenses.
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In the event of any litigation or other proceeding between the Company
and the Employee with respect to the subject matter of this Agreement and the
enforcement of the rights hereunder, the Company shall reimburse the Employee
for all of his reasonable costs and expenses relating to such litigation or
other proceeding, including, without limitation, his reasonable attorneys'
fees and expenses, provided that such litigation or proceeding results in:
(i) settlement requiring the Company to make a payment to the
Employee, or
(ii) final judgment or order in favor of the Employee.
Consolidation; Merger; Sale of Assets; Change of Control
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Nothing in this Agreement shall preclude the Company from combining,
consolidating or merging with or into, transferring all or substantially all
of its assets to, or entering into a partnership or joint venture with,
another corporation or other entity, or effecting any other kind of corporate
combination provided that the corporation resulting from or surviving such
combination, consolidation or merger, or to which such assets are
transferred, or such partnership or joint venture assumes this Agreement and
all obligations and undertakings of the Company hereunder. However, if in
such event, a change of control results in either: i) an elimination of
Employee from Board of Directors, or ii) Employee is no longer Chief Executive
Officer, Options defined under Section 12 of Agreement shall immediately vest
and become exercisable. Upon such a consolidation, merger, transfer of
assets or formation of such partnership or joint venture, this Agreement
shall inure to the benefit of, be assumed by, and be binding upon such
resulting or surviving transferee corporation or such partnership or joint
venture, and the term "Company," as used in this Agreement, shall mean such
corporation, partnership or joint venture, or other entity and this Agreement
shall continue in full force and effect and shall entitle the Employee and his
heirs, beneficiaries and representatives to exactly the same compensation,
benefits, perquisites, payments and other rights as would have been their
entitlement had such combination, consolidation, merger, transfer of assets or
formation of such partnership or joint venture not occurred.
Survival of Obligations.
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Sections 5, 6, 7, 8, 9 and 10 shall survive the termination for any
reason of this Agreement (whether such termination is by the Company, by the
Employee, upon the expiration of this Agreement or otherwise).
Options.
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As part of this Agreement, Employee is entitled to incentive options of
the Company's common stock at a strike price of $4.50 per share (hereafter
"Options") subject to the 1996 Stock Option Plan. Said Options will vest
according to the following schedule as long as Employee is employed by the
Company:
116,667 on August 1, 1997;
116,666 on August 1, 1998;
116,666 on August 1, 1999.
In addition, the vesting period of these options are subject to an
exceleration clause whereby all options shall vest and become immediately
exerciseable if the Company's common stock price trades above $12 per share
for a period of 10 consecutive days.
Severability.
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In case any one or more of the provisions or part of a provision
contained in this Agreement shall for any reason be held to be invalid,
illegal or unenforceable in any respect in any jurisdiction, such invalidity,
illegality or unenforceability shall be deemed not to affect any other
jurisdiction or any other provision or part of a provision of this Agreement,
nor shall such invalidity, illegality or unenforceability affect the
validity, legality or enforceability of this Agreement or any provision or
provisions hereof in any other jurisdiction; and this Agreement shall be
reformed and construed in such jurisdiction as if such provision or part of a
provision held to be invalid or illegal or unenforceable had never been
contained herein and such provision or part reformed so that it would be
valid, legal and enforceable in such jurisdiction to the maximum extent
possible. In furtherance and not in limitation of the foregoing, the Company
and the Employee each intend that the covenants contained in Sections 6 and 7
shall be deemed to be a series of separate covenants, one for each state,
territory or jurisdiction of the United Mexican States and the United States
of America and any foreign country referenced therein. If, in any judicial
proceeding, a court shall refuse to enforce any of such separate covenants,
then such unenforceable covenants shall be deemed eliminated from the
provisions hereof for the purpose of such proceedings to the extent necessary
to permit the remaining separate covenants to be enforced in such proceedings.
If, in any judicial proceeding, a court shall refuse to enforce any one or
more of such separate covenants because the total time thereof or the
geographic area covered thereby is deemed to be excessive or unreasonable,
then it is the intent of the parties hereto that such covenants, which would
otherwise be unenforceable due to such excessive or unreasonable period of
time or geographic area, be enforced for such lesser period of time as shall
be deemed reasonable and not excessive by such court.
Entire Agreement; Amendment.
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This Agreement contains the entire agreement between the Company and the
Employee with respect to the subject matter hereof and thereof. This
Agreement may not be amended, waived, changed, modified or discharged except
by an instrument in writing executed by or on behalf of the party against
whom enforcement of any amendment, waiver, change, modification or discharge
is sought. No course of conduct or dealing shall be construed to modify,
amend or otherwise affect any of the provisions hereof.
Notices.
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All notices, request, demands and other communications hereunder shall
be in writing and shall be deemed to have been duly given (i) upon delivery,
if personally delivered, (ii) the next business day, if delivered with all
charges prepaid to a recognized overnight delivery service for next day
delivery, or (iii) five days after mailing, if mailed, postage prepaid, via
first class mail, in each such case as follows:
(a) To the Company: (b) To the Employee:
Telscape International, Ltd E. Xxxxx Xxxxx
c/o. 0000 Xxxxxxxxx Xxxx 0000 Xxxxxxxxx Xxxx, #000
Xxxxxxx XX 00000 Xxxxxxx XX 00000
with an additional copy by like means, and by facsimile, to:
De Xxxxxxx Xxxxxxxxxxx Xxxxx & Xxxxx
0000 X Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxx X. Xx Xxxxxxx, Esquire
and/or to such other persons and addresses as any party shall have specified
in writing to the other.
Assignability.
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This Agreement shall not be assignable by either party and shall be binding
upon, and shall inure to the benefit of, the heirs, executors, administrators,
legal representatives, successors and assigns of the parties. In the event
that all or substantially all of the business of the Company is sold or
transferred, then this Agreement shall be binding on the transferee of the
business of the Company whether or not this Agreement is expressly assigned
to the transferee.
Governing Law.
This Agreement shall be governed by and construed under the laws of
the State of Texas in the United States of America.
Waiver and Further Agreement.
Any waiver of any breach of any terms or conditions of this
Agreement shall not operate as a waiver of any other breach of such terms or
conditions or any other term or condition, nor shall any failure to enforce any
provision hereof operate as a waiver of such provision or of any other
provision hereof. Each of the parties hereto agrees to execute all such
further instruments and documents and to take all such further action as the
other party may reasonably require in order to effectuate the terms and
purposes of this Agreement.
Headings of No Effect.
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The paragraph headings contained in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation
of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
COMPANY:
TELSCAPE INTERNATIONAL, LTD.
By:
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Name:
Title:
EMPLOYEE:
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Xxxxxx Xxxxx Xxxxx
