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EXHIBIT 10.1
EXECUTIVE EMPLOYMENT
AND SEVERANCE AGREEMENT
THIS EXECUTIVE EMPLOYMENT AND SEVERANCE AGREEMENT (the "AGREEMENT") is
executed as of the 14th day of April, 1997, by and between InterAmericas
Communications Corporation, a Texas corporation (hereinafter referred to as the
"COMPANY"), and Xxxxxxx X. Xxxx XX (hereinafter referred as the "EXECUTIVE").
WITNESSETH:
WHEREAS, the Company desires to have the benefit of the Executive's
efforts and services:
WHEREAS, the Executive is willing to commit himself to serve the
Company, on the terms and conditions herein provided; and
WHEREAS, in order to effect the foregoing, the Company and the
Executive wish to enter into an employment agreement on the terms and conditions
set forth below.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, the parties hereto mutually
covenant and agree a follows:
1. DEFINITIONS.
Whenever used in this Agreement, the following terms shall have the
meanings set forth below:
(a) "ACCRUED BENEFITS" shall mean the amount payable not later
than ten (10) days following any applicable date of termination of the
Executive's employment with the Company pursuant to this Agreement (the
"Termination Date") and which shall be equal to the sum of the
following amounts:
(i) All salary earned or accrued through the
Termination Date;
(ii) Reimbursement for any and all monies advanced in
connection with the Executive's employment for reasonable and
necessary expenses incurred by the Executive through the
Termination Date;
(iii) Any and all other cash benefits previously
earned through the Termination Date and deferred at the
election of the Executive or pursuant to any deferred
compensation plans then in effect;
(iv) The full amount of any Bonus (as defined in
Section 6(b)) earned by the Executive in the year preceding
the year in which the termination occurs but not paid as of
the Termination Date and the amount of any Bonus payable to
the Executive in accordance with Section 6(b) herein as of the
Termination Date with respect to the year in which termination
occurs, pro rated to reflect the portion of the year in which
such termination occurs during which the Executive was
employed by the Company.
(v) All stock options which have vested or will vest
on or prior to the Termination Date; and
(vi) All other payments and benefits to which the
Executive may be entitled as of the Termination Date under the
terms of this Agreement (including Sections 6(c)-6(e) hereof),
pro rated to reflect the portion of the year in which such
termination occurs during which the Executive was employed by
the Company.
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(b) "ACT" shall mean the Securities Exchange Act of 1934;
(c) "BENEFICIAL OWNER" shall have the same meaning as given to
that term in Rule 13d-3 of the General Rules and Regulations of the
Act, provided that any pledgee of Company voting securities shall not
be deemed to be the Beneficial Owner thereof prior to its disposition
of, or acquisition of voting rights with respect to, such securities;
(d) "BOARD" shall mean the Board of Directors of the Company;
(e) "CAUSE" shall mean any of the following:
(i) The engaging by the Executive in fraudulent
conduct, as evidenced by a judgment, order or decree of a
court or administrative agency of competent jurisdiction, in
an action, suit or proceeding, whether civil, criminal,
administrative or investigative, which the Board reasonably
determines has or would have a material adverse impact on the
Company in the conduct of the Company's business;
(ii) Conviction of the Executive of a felony criminal
offense, as evidenced by a binding judgment, order or decree
of a court of competent jurisdiction, which the Board
reasonably determines has or could have a material adverse
impact on the Company in the conduct of the Company's
business;
(iii) Willful refusal by the Executive to perform the
Executive's material duties or responsibilities as reasonably
requested by the Company's Chief Executive Officer (the "CEO")
(unless significantly changed without the Executive's
consent); or
(iv) Gross Negligence by the Executive in performing
the Executive's material duties or responsibilities as
reasonably requested by the CEO (unless significantly changed
without the Executive's consent)
Notwithstanding the foregoing, Cause shall not exist under Sections 1
(e)(iii) or (iv) herein unless the Company furnishes written notice to
the Executive of the specific offending conduct and the Executive fails
to correct such offending conduct within the fifteen (15) day period
commencing on the receipt of such notice.
(f) "CODE" shall mean the Internal Revenue Code of 1986, as
amended from time to time;
(g) "EFFECTIVE DATE" shall mean May 1, 1997 notwithstanding
the date that this Agreement is executed by the parties hereto.
(h) "GOOD REASON" shall mean:
(i) The required relocation of the Executive, without
the Executive's consent, to an employment location which is
more than seventy-five (75) miles from the Executive's
employment location on the day preceding the date of this
Agreement;
(ii) Any reduction by the Company in the compensation
and/or benefits (including Bonus) provided to the Executive as
in effect on the Effective Date as the same may be increased
from time to time after the Effective Date (other than a
one-time reduction of twenty-five percent (25%) or less in the
compensation and/or benefits which reduction is generally
effective for the CEO.
(iii) The removal of the Executive from or any
failure to elect the Executive to any of the positions to be
held by the Executive pursuant to this Agreement except in
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the event that such removal or failure to reelect is related
to termination by the Company of the Executives employment for
Cause or by reason of death, Disability (as hereinafter
defined) or voluntary retirement;
(iv) Breach or violation of any material provision of
this Agreement by the Company;
(v) If Xxxxxxxx Northland fails to be employed by as
CEO of Company at any time during the Employment Term other
than upon expiration of Mr. Northland's employment agreement
with the Company;
(vi) The assignment to the Executive of duties,
responsibilities or authority that is materially inconsistent
with Sections 4(a) and 4(b) hereof; or
(vii) A material breach by the Company of the
representation or warranty of the Company set forth in
Sections 6(e) hereof.
(i) "NOTICE OF TERMINATION" shall mean the notice described in
Section 14 herein;
(j) "PERSON" shall mean any individual, partnership, joint
venture, association, trust, corporation or other entity (including a
"group" as defined in Section 13 (d)(3) of the Act), other than an
employee benefit plan of the Company or an entity organized, appointed
or established pursuant to the terms of any such benefit plan;
(k) "TERMINATION PAYMENT" shall mean the payment described in
Section 13 herein;
2. EMPLOYMENT.
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.
3. TERM.
The employment of the Executive by the Company pursuant to the
provisions of this Agreement shall commence on the Effective Date and end on
April 30, 2000. Such period is hereinafter defined as the "Employment Term."
4. POSITIONS AND DUTIES.
(a) The Executive shall serve as Chief Financial Officer and
as a member of the Board of Directors of the Company. In connection
with the foregoing positions, the Executive shall have such duties,
responsibilities and authority as may from time to time be assigned to
the Executive by the Board or the CEO, provided such duties,
responsibilities and authority are of a nature customarily assigned to
directors and chief financial officers of companies similar in size and
structure to the Company. The Executive shall devote substantially all
the Executive's working time and reasonable efforts to the business and
affairs of the Company.
(b) The Executive's duties shall include, but not be limited
to, the following:
(i) Recommend to the CEO the approval of budgets,
cash flow plans and schedules and any amendments thereto of
the Company and its affiliates and subsidiaries;
(ii) Recommend to the CEO the appointment of the
independent public accountants of the Company;
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(iii) Assist the CEO in the preparation and filing of
all reports, returns and notices required to be filed by the
Company;
(iv) Use his reasonable efforts to obtain financing
for the operations and expansion of the Company;
(v) Assist the Company's legal counsel in connection
with the preparation of filings required to be made by the
Company with the U.S. Securities and Exchange Commission;
(vi) Assist the CEO in the due diligence review of
companies sought to be acquired by the Company;
(vii) Assist the CEO in expanding, improving and
enhancing investor relations;
(viii) Supervise and direct the financial and
accounting activities of the Company and of the operating
subsidiaries and affiliates of the Company;
(ix) establish fully integrated accounting and
financial control systems for the Company, its operating
subsidiaries and affiliates; and
(x) Subject to Section 4(a) hereof, take any other
action that may be reasonably requested by the Board of
Directors or by the CEO of the Company.
(c) The Executive shall report to the CEO of the Company.
5. PLACE OF PERFORMANCE.
In connection with the Executive's employment by the Company, the
Executive shall be based in Miami, Florida, except for required travel on
Company business. The Company hereby acknowledges that the Executive presently
resides in Brecksville, Ohio, and agrees that between the date of this Agreement
and the date that the Executive permanently relocates his family to Miami,
Florida, the Company will pay all costs and expenses reasonably incurred by the
Executive and his wife and children in traveling between Brecksville, Ohio, and
Miami, Florida, including, without limitation, costs of transportation, meals
and lodging. The Company further agrees to reimburse for all costs and expenses
reasonably incurred by the Executive in moving from Brecksville, Ohio to Miami,
Florida, including, without limitation, (a) all brokerage fees related to the
sale and/or rental of Executive's Brecksville, Ohio, residence and to the
purchase and/or rental of a Miami, Florida, residence, (b) costs and expenses
(including transportation, meals and lodging) incurred by the Executive and his
immediate family in connection with house hunting trips, and (c) costs and
expenses relating to packing and transporting goods and personal belongings from
Brecksville, Ohio, to Miami, Florida, such costs and expenses to be reimbursed
by the Company within seven days of presentment by the Executive to the Company
of receipts evidencing such costs and expenses. Notwithstanding the foregoing,
in no event shall the costs and expenses incurred by the Executive and his
immediate family pursuant to this Section 5 exceed $40,000 without the prior
written consent of the CEO.
6. COMPENSATION AND RELATED MATTERS.
During the Employment Term, the Company shall pay or provide to the
Executive the following compensation and other benefits:
(a) Commencing on the date hereof, the Company shall pay to
the Executive an annualized base salary at a rate of $250,000 (Two
Hundred and Fifty Thousand U.S. Dollars) in
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equal installments as nearly as practicable on the fifteenth and last
days of each month, in arrears. Commencing May 1, 1998, and each May 1,
thereafter during the Employment Term, the Base Salary shall be
increased, but shall not be decreased, by that percentage by which the
Consumer Price Index (All Items Less Shelter), Urban Wage Earners and
Clerical Workers, for the Miami, Florida area published by the United
States Government (the "Index") for the immediately preceding calendar
year exceeds such index for the next preceding calendar year. If
publication of the Index is discontinued, the parties hereto shall
accept comparable statistics on the cost of living for the Miami,
Florida area as computed and published by an agency of the United
States government or, if no such agency computes and publishes such
statistics, by any regularly published national financial periodical
that does compute and publish such statistics. The Executive's base
salary may be increased above the foregoing amounts at the discretion
of the Board of Directors.
(b) Performance awards. The Executive shall be entitled to
receive an annual performance award (a "Bonus"), as determined by the
CEO in his reasonable discretion, not to exceed Two Hundred Fifty
Thousand Dollars ($250,000), based upon the fulfillment of the
Executive's duties as specified in Section 4(b) hereof. Any Bonus
earned by the Executive pursuant to this Section 6(b) shall be paid to
the Executive by March 31 of each year based on the performance of the
Executive during the preceding year and shall be prorated for any
partial years of employment.
(c) During the Employment Term, the Executive shall be
entitled to receive prompt reimbursement for all reasonable expenses
incurred by the Executive in performing services hereunder, including,
but not limited to, all expenses of travel, entertainment and living
expenses while away from home on business or at the request of and in
the service of the Company, provided that such expenses are incurred
and accounted for in accordance with the policies and procedures
presently established by the Company;
(d) The Executive hereby is granted an option (the "Option")
to purchase 500,000 shares of the Company's common stock at an exercise
price equal to the average closing price of the Company's Common Stock
on the Nasdaq SmallCap Market for the five consecutive trading days
ending on April 17, 1997. The Option may be exercised, in whole or in
part, subject to the following sentence, in accordance with the
following vesting schedule: (i) 1/3 of the Option shall vest
immediately upon the signing this Agreement, (ii) 1/3 of the Option
shall vest one year after the signing of this Agreement, (iii) 1/3 of
the Option shall vest two years after the signing of this Agreement.
The Option shall expire ten (10) years from the date hereof (the
"EXPIRATION DATE"), and must be exercised, if at all, in whole or in
part, on or before the Expiration Date; PROVIDED HOWEVER, that upon the
termination of the Executive's employment hereunder for Cause,
Disability or death or upon the Executive's voluntary resignation as an
employee of the Company prior to the expiration of the Employment Term
for any reason other than Good Reasons, any portion of the Option which
has not vested prior to such termination or resignation shall be
cancelled and shall no longer be exercisable; and PROVIDED FURTHER,
that the entire Option shall vest on (a) upon the termination of the
Executive's employment for any reason other than "Cause" Disability or
death, and (b) upon the voluntary termination of employment by
Executive for "Good Reason". The Option Agreement will be in
substantially the form of Exhibit "1" attached hereto
(e) Stock Option and Registration Rights: Simultaneously with
the execution of this Agreement, the Company agrees to execute and
deliver to the Executive the Stock Option Agreement and the
Registration Rights Agreement in the forms attached hereto as Exhibits
1 and 2, respectively. The Company hereby represents and warrants that,
except for the number of shares subject to the attached agreements and
the exercise price relating thereto, the terms of the Stock Option
Agreement and the Registration Rights Agreement attached hereto are the
same as the terms of the Stock Option Agreement and the Registration
Rights Agreement entered into between the Company and Xxxxxxxx
Northland.
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(f) The Executive shall be entitled to four weeks vacation in
each calendar year, and to compensation in respect of earned but unused
vacation days, determined in accordance with the Company's vacation
plan or policy. The Executive shall also be entitled to all paid
holidays provided by the Company to its executive officers;
(g) The Company shall furnish the Executive with office space,
and such other facilities and services as shall be suitable to the
Executive's position and adequate for the performance of the
Executive's duties as set forth in Section 4 herein.
(h) The Executive shall be provided with major medical,
hospitalization, and dental insurance; disability insurance; term life
insurance equal to one year's salary; and other benefits upon terms and
conditions similar to those provided to the Company's other executive
officers.
(i) The Executive shall be provided a car allowance not to
exceed $600 per month.
7. OFFICES.
The Executive agrees to serve without additional compensation, if
elected or appointed thereto, as a member of the Board of Directors or any
subsidiary of the Company; provided, however, that the Executive shall be
indemnified for serving in any and all such capacities on a basis no less
favorable than is currently provided in the Company's bylaws.
8. TERMINATION AS A RESULT OF DEATH.
If the Executive shall die during the term of this Agreement, the
Executive's employment shall terminate on the Executive's date of death and the
Executive's surviving spouse, or the Executive's estate if the Executive dies
without a surviving spouse, shall be entitled to the applicable Termination
Payment as defined in Section 13(a) and all Accrued Benefits.
9. TERMINATION FOR DISABILITY.
If, as a result of physical or mental disability, the Executive shall
have been unable to perform the Executive's duties hereunder on a full-time
basis for ninety consecutive days or 180 days in any 360 day period (a
"Disability"), the Company may terminate the Executive's employment subject to
Section 14 herein. During the term of the Executive's Disability prior to
termination, the Executive shall continue to receive all salary and benefits
payable under Section 6 herein, including participation in all employee benefit
plans, programs and arrangements in which the Executive was entitled to
participate immediately prior to the terms and provisions of such plans,
programs, and arrangements. In the event that the Executive's participation in
any such plan, program or arrangement is barred as the result of such
Disability, the Executive shall be entitled to receive an amount equal to the
contributions, payments, credits or allocations which would have been paid by
the Company to the Executive, to the Executive's account or on the Executive's
behalf under such plans, programs and arrangements. In the event the Executive's
employment is terminated on account of the Executive's Disability in accordance
with this Section 9, the Executive shall receive the Executive's Accrued
Benefits as of the Termination Date and shall remain eligible for all benefits
provided by any long-term disability programs of the Company in effect at the
time of such termination. Upon termination for Disability, the Executive shall
be entitled to the Termination Payment as defined in Section 13(a) and all
Accrued Benefits.
10. TERMINATION FOR CAUSE.
If the Executive's employment with the Company is terminated by the
Company for Cause, subject to the procedures set forth in Section 14 herein, the
Executive shall not be entitled to receipt of any Termination Payment, but shall
be entitled to receive all Accrued Benefits (other than any prorated Bonus
pursuant to Section 6(b) hereof).
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11. OTHER TERMINATION BY COMPANY OR BY THE EXECUTIVE.
If the Executive's employment with the Company is terminated by the
Company other than by reason or death, Disability or Cause, or if the Executive
terminates his employment with the Company for Good Reason, subject to the
procedures set forth in Section 14 herein, the Executive (or in the event of the
Executive's death following the Termination Date, the Executive's surviving
spouse or the Executive's estate if the Executive dies without a surviving
spouse) shall receive the applicable Termination Payment as defined in Section
13(b) and the Accrued Benefits.
12. VOLUNTARY TERMINATION BY EXECUTIVE.
Provided that the Executive furnishes thirty (30) days prior written
notice to the Company, the Executive shall have the right to voluntarily
terminate this Agreement at any time. If the Executive's voluntary termination
is without Good Reason, the Executive shall receive the Executive's Accrued
Benefits as of the Termination Date (other than any prorated Bonus pursuant to
Section 6(b) hereof) and shall not be entitled to any Termination Payment.
13. TERMINATION PAYMENT.
(a) If the Executive's employment is terminated as a result of
death or Disability, the lump sum Termination Payment payable to the
Executive shall be equal to 100% of the Executive's then current annual
base salary;
(b) If the Executive's employment is terminated by the
Executive for Good Reason or by the Company for any reason other than
death, Disability or Cause, the lump sum Termination Payment payable to
the Executive shall be equal to the greater of (i) 100% of the
Executive's then current annual base salary or (ii) the aggregate
amount of base salary to be paid to the Executive for the remainder of
the Employment Term.
(c) If any portion of the Termination Payment is determined to
constitute a "parachute payment" (as defined in Section 280G of the
Code), the Executive hereby agrees to pay any excise tax imposed on
such portion of the Termination Payment by Section 4999 of the Code and
the Company hereby acknowledges and agrees that such portion of the
Termination Payment will not be deductible to the Company pursuant to
Section 280G of the Code.
(d) The Termination Payment shall be payable in a lump sum not
later than ten (10) days following the Executive's Termination Date.
Such lump sum payment shall not be reduced by any present value or
similar factor. Further, the Executive shall not be required to
mitigate the amount of such payment by securing other employment or
otherwise and such payment shall not be reduced by reason of the
Executive securing other employment or for any other reason.
14. TERMINATION NOTICE AND PROCEDURE.
Any termination by the Company or the Executive of the Executive's
employment during the Employment Term shall be communicated by written Notice of
Termination to the Executive if such Notice of Termination is delivered by the
Company and to the Company if such Notice of Termination is delivered by the
Executive, all in accordance with the following procedures:
(a) The Notice of Termination shall indicate the specific
termination provision in this Agreement relied upon and shall set forth
in reasonable detail the facts and circumstances alleged to provide a
basis for termination. In the event of a termination claimed by the
Company pursuant to Section 1(e)(iii) or (iv) hereof and the Executive
notifies the Company that a dispute exists concerning the termination
within the fifteen (15) day period following cure period specified in
Section 1 hereof, the Executive shall continue to receive 50% of the
Executive's base salary and all other benefits to which he is entitled
to receive hereunder until the earlier of (i) 60 days following such
termination or (ii) resolution of such dispute in accordance with
Section 16 hereof. If such dispute is resolved in favor of the
Executive, the Company shall immediately pay the
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Executive the remainder of the base pay that was not paid to the
Executive during the pendency of the dispute. If at any time during the
pendency of such dispute the Company fails to pay and provide such base
salary and benefits to the Executive in a timely manner the Company
shall be deemed to have automatically waived whatever rights it then
may have had to terminate the Executive's employment for "cause."
(b) Any Notice of Termination by the Company shall be approved
by a resolution duly adopted by a majority of the directors of the
Company then in office;
(c) If the Executive shall in good faith furnish a Notice of
Termination for Good Reason and the Company notifies the Executive that
a dispute exists concerning the termination within the fifteen (15) day
period following the Company's receipt of such notice, the Executive
shall continue the Executive's employment during such dispute. If it is
thereafter determined that (i) Good Reason did exist, the Executive's
Termination Date shall be deemed to be the date on which the dispute is
finally determined, either by mutual written agreement of the parties
or pursuant to Section 16 herein or (ii) Good Reason did not exist, the
employment of the Executive shall continue after such determination as
if the Executive had not delivered the Notice of Termination asserting
Good Reason;
(d) If the Executive gives notice to terminate his employment
for Good Reason and a dispute arises as to the validity of such
dispute, and the Executive does not continue his employment during such
dispute, and it is finally determined that the reason for termination
set forth in such Notice of Termination did not exist, if such notice
was delivered by the Executive, the Executive shall be deemed to have
voluntarily terminated the Executive's employment other than for Good
Reason.
15. NON-COMPETE.
The Executive hereby agrees that during the term of this Agreement and
for the period of six months from the Executive's Termination Date or the
termination of this Agreement, that the Executive will not:
(a) Within any jurisdiction or marketing area in the United
States or Latin America in which the Company or any subsidiary thereof
is doing business, own, manage, operate or control any business of the
type and character engaged in the telecommunications industry and
competitive with the Company or any subsidiary thereof. For purposes of
this paragraph, ownership of securities of not in excess of five
percent (5%) of any class of securities of a public company shall not
be considered to be competition with the Company or any subsidiary
thereof in the telecommunications industry; or
(b) Within any jurisdiction or marketing area in the United
States or Latin America in which the Company or any subsidiary thereof
is doing business, act as, or become employed as, an officer, director,
employee, consultant or agent of any business of the type and character
engaged in and competitive with the Company or any of its subsidiaries
in the telecommunications industry; or
(c) Solicit the business of or sell any products to any
company in the United States or Latin America, which is as of the date
hereof, a customer or client of the Company or any of its subsidiaries,
or was such a customer or client thereof within two years prior to the
date of this Agreement if such solicitation or sale results in
competition to the Company; or
(d) Solicit the employment of, or hire, any full time employee
employed by the Company or its subsidiaries as of the date of
termination of this Agreement.
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16. ARBITRATION.
All claims, disputes and other matters in question between the parties
arising under this Agreement, shall, unless otherwise provided herein, be
decided by arbitration in Miami, Florida in accordance with the Model Employment
Arbitration Procedures of the American Arbitration Association (including such
procedures governing selection of the specific arbitrator or arbitrators),
unless the parties mutually agree otherwise. Within 30 days of the selection of
the arbitrator, the Executive and the Company shall meet in Miami, Florida, with
the arbitrator at a place and time designated by the arbitrator after
consultation with the parties and present their respective positions on the
dispute. Each party shall have no longer than two (2) days to present its
position and the entire proceeding before the arbitrator shall be no more than
five (5) consecutive days in duration. The arbitrator's award, which may include
attorneys' fees, shall be rendered within ten (10) days following the completion
of the proceedings. The arbitrator's decision shall be in writing and shall
state the reasoning on which the award rests unless the parties agree otherwise.
Florida law shall govern all aspects of the relationship and the arbitration,
including the applicable statutes of limitation and excluding its rules
concerning conflicts of law. The Company shall pay the costs of any such
arbitration. The award by the arbitrator or arbitrators shall be final, and
judgment may be entered upon it in accordance with applicable law in any state
or Federal court having jurisdiction thereof.
17. ATTORNEYS' FEES.
(a) The Company hereby agrees to reimburse the Executive for all
reasonable attorney's fees incurred by the Executive in connection with the
negotiation and preparation of this Agreement. (b) In the event that either
party hereunder institutes any legal proceedings in connection with its rights
or obligations under this Agreement, the prevailing party in such proceeding
shall be entitled to recover from the other party, all costs incurred in
connection with such proceeding, including reasonable attorneys' fees, together
with interest thereon from the date of demand at the rate of twelve percent
(12%) per annum.
18. SUCCESSORS.
This Agreement and all rights of the Executive shall inure to the
benefit of and be enforceable by the Executive's personal or legal
representatives, estates, executors, administrators, heirs and beneficiaries. In
the event of the Executive's death, all amounts payable to the Executive under
this Agreement shall be paid to the Executive's surviving spouse, or the
Executive's estate if the Executive dies without a surviving spouse. This
Agreement shall inure to the benefit of, be binding upon and be enforceable by,
any successor surviving or resulting corporation or other entity to which all or
substantially all of the business and assets of the Company shall be transferred
whether by merger, consolidation, transfer or safe.
19. ENFORCEMENT.
The provisions of this Agreement shall be regarded as divisible, and if
any of said provisions or any part hereof are declared invalid or unenforceable
by a court of competent jurisdiction, the validity and enforceability of the
remainder of such provisions or parts hereof and the applicability thereof shall
not be affected thereby
20. AMENDMENT OR TERMINATION.
This Agreement may not be amended or terminated during its term as
specified above except by written instrument executed by the Company and the
Executive.
21. ENTIRE AGREEMENT.
This Agreement, in conjunction with the Executive's rights under any
general employee benefit program, sets forth the entire agreement between the
Executive and the Company with respect to the subject matter hereof, and
supersedes all prior oral or written agreements, negotiations, commitments and
understandings with respect thereto.
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22. WITHHOLDING.
The Company shall be entitled to withhold from amounts to be paid to
the Executive under this Agreement any federal, state or local withholding or
other taxes or charges which it is from time to time required to withhold in
connection with this Agreement or in connection with any plan or arrangement in
which the Executive is a participant. The Executive shall also be required to
pay to the Company such amount of cash as shall be necessary to satisfy such
withholding or other taxes or charges to the extent that the amounts to be paid
to the Executive. under this Agreement are insufficient therefor. The Company
shall be entitled to rely on an opinion of counsel if any question as to the
amount or requirement of any such withholding shall arise.
23. RIGHT TO CANCELLATION.
Notwithstanding anything to the contrary contained herein, in the event
the Board of Directors does not elect the Executive as a member of the Board of
Directors of the Company within ten (10) business days from the date hereof, the
Executive shall have the right to cancel this Agreement upon written notice to
the Company within fifteen (15) days from the date hereof, in which event the
Executive and the Company shall be relieved of all of their respective
obligations and liabilities in connection with this Agreement. Upon the
Executive's cancellation of this Agreement pursuant to this Section 23, the
Executive shall not be entitled to any of the compensation provided for in this
Agreement including, without limitation, termination payment pursuant to Section
13.
24. VENUE; GOVERNING LAW.
This Agreement and the Executive's and Company's respective rights and
obligations hereunder shall be governed by and construed in accordance with the
laws of the State of Florida without giving effect to the provisions,
principles, or policies thereof relating to choice or conflict laws.
25. NOTICE.
Notices given pursuant to this Agreement shall be in writing and shall
be deemed given when received, and if mailed, shall be mailed by United States
registered or certified mail, return receipt requested, addressee only, postage
prepaid, if to the Company, to:
InterAmericas Communications Corporation
0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
or to such other address as the Company shall have given to the Executive or, if
to the Executive, to such address as the Executive shall have given to the
Company in writing.
26. NO WAIVER.
No waiver by either party at any time of any breach by the other party
of, or compliance with, any condition or provision of this Agreement to be
performed by the other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same time or any prior or subsequent time.
27. HEADINGS.
The headings herein contained are for reference only and shall not
affect the meaning ~ interpretation of any provision of this Agreement.
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28. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer, and the Executive has executed this
Agreement, on the date first above written.
INTERAMERICAS COMMUNICATIONS CORPORATION
/s/ Xxxxxxxx X. Northland
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Xxxxxxxx X. Northland
President and Chief
Executive Officer
/s/ Xxxxxxx X. Xxxx XX
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Xxxxxxx X. Xxxx XX
11
