Exhibit 10.19
XXXXX XXXX
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into as of
April 14, 1999 among AVT Corporation, a Washington corporation ("AVT"), MediaTel
Corporation, a Delaware corporation ("Employer"), and Xxxxx Xxxx ("Executive").
RECITALS
A. AVT, Employer, and Goldengate Acquisition Corp., a Delaware corporation
and wholly-owned subsidiary of AVT ("Merger Sub") have entered into a Merger
Agreement dated as of the date hereof (the "Merger Agreement"), pursuant to
which Merger Sub will merge with and into Employer with Employer surviving.
B. It is a condition precedent to the closing of the Merger Agreement that
Executive and Employer enter into this Agreement.
C. Based on Executive's success to date in developing and managing
Employer, Employer desires to retain the services of Executive, and Executive is
willing to provide services to Employer, upon the terms and subject to the
conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, Employer, AVT and Executive hereby agree as follows:
1. Employment
Employer will employ Executive, either directly or through AVT, and
Executive will accept employment by Employer as its President. Executive will
have the authority, subject to Employer's Articles of Incorporation and Bylaws,
as may be granted from time to time by Employer's Board of Directors. Executive
will have the policy and decision-making authority and responsibility, and will
perform the duties customarily performed by an executive officer of a
corporation that is, in all respects, similar to Employer. Executive will have
such other duties as may be assigned from time to time by Employer's or AVT's
Board of Directors that relate to the business of Employer, its subsidiaries
(including any partnerships, joint ventures, limited liability companies or
other business entities), AVT, its subsidiaries, or any business ventures
(including any partnerships, joint ventures, limited liability companies or
other
business entities) in which Employer, its subsidiaries, AVT, or its subsidiaries
may participate.
2. Attention and Effort
Executive will devote all of the normal business time that is necessary and
appropriate, and his ability, attention and effort to Employer's business and
will skillfully serve its interests during the term of this Agreement; provided,
however, that Executive may devote reasonable periods of time to (a) engaging in
personal investment activities and (b) engaging in charitable or community
service activities, so long as neither of the foregoing additional activities
materially interferes with Executive's duties under this Agreement.
3. Term
Unless otherwise terminated pursuant to Section 6 hereof, Executive's term
of employment under this Agreement shall expire on April 14, 2001. Expiration of
the term of employment does not require termination of the employment
relationship.
4. Compensation
During the term of this Agreement, Employer agrees to pay or cause to be
paid to Executive, and Executive agrees to accept in exchange for the services
rendered hereunder by him, the following compensation:
4.1 Annual Base Salary
Executive's compensation shall consist, in part, of an annual base salary
which for calendar year 1999 shall be $200,000, before all customary payroll
deductions. Such annual base salary shall be paid in substantially equal
installments and at the same intervals as other employees of Employer are paid.
Employer's Board of Directors shall consider increases in the amount of such
annual base salary on not less than an annual basis, but may not reduce the
annual base salary.
4.2 Bonus
4.2.1 Objective Bonus
For the year ending December 31, 1999 and subsequent calendar years,
Executive will be entitled to receive, in addition to the annual base salary
described above, a bonus upon achievement of specified objectives submitted by
Executive and approved by the President of AVT (the "Objective Bonus"). The
Objective Bonus payable for 1999 shall be $25,000 and Executive shall submit his
proposed specified
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objectives to the President of AVT on or before May 15, 1999. For Objective
Bonuses payable with respect to 2000 and succeeding calendar years the amount of
the bonus shall be agreed to by Executive and the President of AVT but it shall
in no event be less than $25,000 and Executive shall submit his proposed
specified objectives on or before March 15 of the calendar year to which the
Objective Bonus relates.
4.2.2 MICP Plan
For the year ending December 31, 1999, Executive will also be entitled to
receive the bonus described on Schedule A (the "MICP Bonus") under AVT's
Management Incentive Compensation Plan (the "MICP"), payable in accordance with
the terms set forth in Schedule A, if AVT and Employer achieve specified levels
of total operating profit (earnings before interest and tax) for such year;
provided, however, that such bonus shall be prorated in proportion to the number
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of full months that Executive is employed by Employer in 1999. Furthermore,
Executive shall be entitled to a bonus under the MICP for each calendar year
following 1999 calculated in the same manner as the MICP Bonus for 1999,
provided, however, that the MICP Bonus for any following year shall be based on
AVT's operating profit targets for AVT and Employer for such calendar year, and
provided further that the Target Bonus (as defined on Schedule A) shall not be
less than 25 percent of Executive's base salary for such year.
4.2.3 1999 Prorated MediaTel Bonus
In addition to the amount set forth in Section 4.2.2, Executive shall also
be paid such amounts, prorated as above from January 1, 1999 through April 30,
1999 and payable on or before June 30, 1999, to which he would have been
otherwise entitled for 1999 under Employer's 1999 Executive Officer's Incentive
Compensation Plan, a copy of which is attached as Exhibit B (the "MediaTel
MICP").
4.3 Stock Options
Executive is hereby awarded a nonqualified stock option to purchase 80,000
shares of AVT common stock (the "Options") with an exercise price equal to the
average of the high and low trading prices of AVT common stock on the date
hereof. Twenty-five percent of the Options will vest on the first anniversary of
the date hereof. Thereafter the Options will vest at a rate of 2.08333 percent
per month, and any remaining unvested options will vest in full on the fourth
anniversary of the date hereof The Options will be granted pursuant to, and will
be subject to the terms and conditions contained in, an option letter agreement
in the form attached hereto as Exhibit A, which option letter shall in turn be
granted pursuant to, and governed by the terms and conditions contained in,
AVT's 1989 Restated Stock Option Plan. In
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addition, Executive shall be eligible for participation in additional option
grants on an annual basis, or other periodic basis as determined by AVT for
other Executives, in a manner consistent with AVT's use of option grants for
other Executive officers of AVT and its subsidiaries.
5. Benefits
During the term of this Agreement, Executive will be entitled to
participate, subject to and in accordance with applicable eligibility
requirements, in fringe benefit programs generally available to employees of
Employer, as those programs may currently exist or be modified from time to
time. Executive will also be entitled to such other benefits as are or may be
available to executive level management of AVT.
6. Termination
Employment of Executive pursuant to this Agreement may be terminated as
follows, but in any case the provisions of Section 8 hereof shall survive the
termination of this Agreement and the termination of Executive's employment
hereunder.
6.1 By Employer
With or without Cause (as hereinafter defined), Employer may terminate
Executive's employment at any time during the term of employment upon giving
Notice of Termination (as hereinafter defined).
6.2 By Executive
Executive may terminate his employment at any time, with or without Good
Reason (as hereinafter defined), upon giving Notice of Termination.
6.3 Automatic Termination
This Agreement and Executive's employment hereunder will terminate
automatically upon Executive's death or total disability. The term "total
disability" as used herein means Executive's inability, with or without
reasonable accommodation, to perform the duties set forth in Section 1 hereof
for a period or periods aggregating 120 calendar days in any 12-month period as
a result of physical or mental illness, loss of legal capacity or any other
cause beyond Executive's control, unless Executive is granted a leave of absence
by Employer's Board of Directors. Executive and Employer hereby acknowledge that
Executive's ability to perform the duties specified in Section 1 hereof is of
the essence of this Agreement. Termination hereunder will be deemed to
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be effective (a) at the end of the calendar month in which Executive's death
occurs, or (b) immediately upon a determination by Employer's Board of Directors
of Executive's total disability, as defined herein.
6.4 Notice
The term "Notice of Termination" means at least 14 days' written notice of
termination of Executive's employment, during which period Executive's
employment and performance of services will continue; provided, however, that
Employer may, upon notice to Executive and without reducing Executive's
compensation during such period, excuse Executive from any or all of his duties
during such period. The effective date of the termination of Executive's
employment hereunder shall be the date on which such 14-day period expires.
7. Termination Payments
In the event of termination of Executive's employment, all compensation and
benefits set forth in this Agreement will terminate, except as specifically
provided in this Section 7 or as provided under the Options.
7.1 Termination by Employer
(a) If Employer terminates Executive's employment without Cause prior to
the end of the term of this Agreement, Executive will be entitled to receive (i)
termination payments equal to the lesser of (aa) one year's annual base salary
and (bb) the annual base salary Executive would have received if his employment
hereunder had continued until the end of the term of this Agreement provided,
however, that in no event shall Executive receive less than three months' base
salary under this subsection (i), (ii) continued medical insurance for the
period of the salary continuation; (iii) any unpaid annual base salary that has
accrued for services already performed as of the date termination of Executive's
employment becomes effective and any unpaid amount that has accrued under
Section 4.2.3; and (iv) the Objective Bonus for the calendar year in which the
termination occurs, payable in accordance with its terms as if Executive were
still employed by Employer at the conclusion of such year. Executive will not be
entitled to receive any portion of the MICP Bonus for the year in which his
employment terminates.
(b) If Employer terminates Executive's employment with Cause, Executive
will not be entitled to receive any of the foregoing benefits, other than those
set forth in clause (iii) above.
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7.2 Termination by Executive
(a) If Executive terminates his employment for Good Reason prior to the end
of the term of this Agreement, Executive will be entitled to receive the
payments set forth in Section 7.1(a) hereof.
(b) If Executive terminates his employment for any reason other than Good
Reason prior to the end of the term of this Agreement, Executive will not be
entitled to any payments hereunder, other than those set forth in clause (iii)
of Section 7.1 (a) hereof.
7.3 Expiration of Term or Termination Because of Death or Total Disability
In the case of the termination of Executive's employment as a result of the
expiration of the term of this Agreement or because of his death or total
disability as defined above, Executive shall not be entitled to receive any
payments hereunder, other than those set forth in clause (iii) of Section 7.1
(a) hereof.
7.4 Payment Schedule
All payments under this Section 7 will be made to Executive at the same
interval as such payments would have been paid had Executive not terminated
employment hereunder.
7.5 Certain Definitions
(a) Wherever reference is made in this Agreement to termination being
with or without Cause, "Cause" means the occurrence of one or more of the
following events:
(i) Executive's willful material misconduct or dishonesty in
the performance of, or the willful failure to perform, any material duty under
this Agreement;
(ii) Executive's willful or intentional injury of Employer or
AVT, Executive's breach of fiduciary duty involving personal profit, or any act
of Executive involving moral turpitude adversely affecting the business,
goodwill or reputation of Employer or AVT;
(iii) Violation by Executive of a state or federal criminal law
involving the commission of a crime against Employer or AVT or any felony;
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(iv) Habitual or repeated misuse by Executive of alcohol or
controlled substances that materially impairs Executive's ability to perform his
duties under this Agreement; or
(v) Any material violation by Executive of any provision of
Section 8 of this Agreement.
Notwithstanding the foregoing, except in the case of subsection (a)(iii)
above, Executive shall not be deemed to have been terminated for Cause unless
and until Executive has been given notice and an opportunity to cure in
accordance with Section 10 hereof.
(b) Wherever reference is made in this Agreement to termination being
with or without "Good Reason," "Good Reason" means the occurrence of any of the
following without the consent of the Executive:
(i) the assignment to Executive of duties materially
inconsistent with and detrimental to, Executive's position, authority, duties or
responsibilities as contemplated by Section 1 hereof; provided, however, that
the reduction of Executive's position, authority, duties and responsibilities by
Employer following Executive's written notice to Employer that he intends to
resign his position with Employer without Good Reason shall not constitute "Good
Reason" under this Agreement;
(ii) Employer requiring the Executive to (aa) be based at any
office or location more than 15 miles from the current location in the San
Francisco, CA area, or (bb) spend materially more time traveling than is
customarily spent by Executive officers of comparable companies performing
similar functions; or
(iii) Any material violation by Employer of any provision of
this Agreement.
Notwithstanding the foregoing Executive shall not be deemed to have
terminated employment for Good Reason unless and until Employer has been given
notice and an opportunity to cure in accordance with Section 10 hereof.
(c) For purposes of Sections 7.5(a)(i) and (ii), no act, or omission
to act, on Executive's part shall be considered "willful" unless done, or
omitted to be done, by him not in good faith or without reasonable belief that
his action or omission was in the best interest of Employer and AVT; provided,
however, that any act, or omission to act, on Executive's part in reliance upon
an opinion of counsel to Employer or AVT or counsel to Executive shall not be
deemed to be willful.
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8. Noncompetition and Nonsolicitation
8.1 Applicability
This Section 8 will survive the termination of Executive's employment with
Employer or the expiration of the term of this Agreement. Executive agrees that
the duration and scope of his obligations under this Section 8 are reasonable.
8.2 Scope of Competition
Executive agrees that he will not, directly or indirectly, during his
employment and for a period (the "Noncompete Period") of (a) one year from the
date on which his employment is terminated if it is terminated prior to the
expiration of the term of this Agreement by Employer without Cause or by
Executive for Good Reason and (b) two years from the date on which his
employment is terminated if it is terminated prior to the expiration of the term
of this Agreement by Employer for Cause or by Executive without Good Reason be
employed by, consult with or otherwise perform services for, own, manage,
operate, join, control or participate in the ownership, management, operation or
control of or be connected with, in any manner, any Competitor unless released
from such obligation in writing by Employer's Board of Directors.
Notwithstanding the foregoing, the Noncompete Period, if determined under clause
(a) above, shall extend beyond the expiration of the term of this Agreement and
only for the period of time that Executive is receiving severance benefits under
Section 7.1(a), and if determined under clause (b) above, shall not extend
beyond the third anniversary of the date of this Agreement. A "Competitor" means
any business entity that, as of termination of employment, provides services
that directly or indirectly compete with, or are marketed or intended to compete
with, the services offered or under development by Company (or, if Company is
operated as a division of AVT, such division), in each case within North
America, Europe, Asia or Japan. A Competitor does not include a firm, such as an
ISP or common carrier, that provides communication facilities that could be used
by Company's customers, provided, however, that such firm does not target the
market(s) served by Company. This Section 8.2 shall not restrict Executive from
working for a division or subsidiary of a larger company which division or
subsidiary is not on its own a "Competitor", even if other divisions or
subsidiaries of such a company are competitors, provided that AVT receives
adequate assurances as it may request that Executive has no involvement with the
divisions or subsidiaries engaged in business that compete with Company.
Executive shall be deemed to be related to or connected with a Competitor if
such Competitor is (a) a partnership in which he is a general or limited partner
or employee, (b) a corporation or association of which he is a shareholder,
officer, employee or director, or (c) a partnership corporation or association
of which he is a member,
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consultant or agent; provided, however, that nothing herein will prevent the
purchase or ownership by Executive of shares that constitute less than 5% of the
outstanding equity securities of a publicly held corporation, if Executive had
no other relationship with such corporation.
8.3 Scope of Nonsolicitation
Executive will not directly or indirectly solicit, influence or entice, or
attempt to solicit, influence or entice, any employee or consultant of Employer
to cease his or her relationship with Employer or solicit, influence, entice or
in any way divert any customer, distributor, partner, joint venturer or supplier
of Employer to do business or in any way become associated with any Competitor.
This Section 8.3 will apply during the time period and geographical area
described in Section 8.2 hereof.
8.4 Assignment of Intellectual Property
All concepts, designs, machines, devices, uses, processes, technology,
trade secrets, works of authorship, customer lists, plans, embodiments,
inventions, improvements or related work product (collectively, "Intellectual
Property") that Executive develops, conceives or first reduces to practice
during the term of his employment hereunder, whether working alone or with
others, shall be Employer's sole and exclusive property, together with any and
all Intellectual Property rights, including, without limitation, patent or
copyright rights, relating thereto, and Executive hereby assigns to Employer all
of such Intellectual Property. "Intellectual Property" shall include only such
concepts, designs, machines, devices, uses, processes, technology, trade
secrets, works of authorship, customer lists, plans, embodiments, inventions,
improvements and related work product that (a) relate to Executive's performance
of services under this Agreement, to Employer's field of business or to
Employer's actual or demonstrably anticipated research or development, whether
or not developed, conceived or first reduced to practice during normal business
hours or with the use of any equipment, supplies, facilities or trade secret
information or other resource of Employer, or (b) are developed in whole or in
part on Employer's time or developed using Employer's equipment, supplies,
facilities or trade secret information, or other resources of Employer, whether
or not the work product relates to Employer's field of business or Employer's
actual or demonstrably anticipated research.
8.5 Disclosure and Protection of Inventions
Executive shall disclose in writing all concepts, designs, processes,
technology, plans, embodiments, inventions or improvements constituting
Intellectual Property to Employer promptly after the development thereof. At
Employer's request and at
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Employer's expense, Executive will assist Employer or its designee in efforts to
protect all rights relating to such Intellectual Property. Such assistance may
include, without limitation, the following: (a) making application in the United
States and in foreign countries for a patent or copyright on any work products
specified by Employer; (b) executing documents of assignment to Employer or its
designee of all of Executive's right, title and interest in and to any work
product and related intellectual property rights; and (c) taking such additional
action (including, without limitation, the execution and delivery of documents)
to perfect, evidence or vest in Employer or its designee all right, title and
interest in and to any Intellectual Property and any rights relating thereto.
8.6 Nondisclosure; Return of Materials
During the term of his employment by Employer and following termination of
such employment, Executive will not disclose (except as required by his duties
to Employer) any concept, design, process, technology, trade secret, customer
list, plan, embodiment or invention, any other Intellectual Property or any
other confidential information, whether patentable or not, of Employer of which
Executive becomes informed or aware during his employment, whether or not
developed by Executive. In the event of the termination of his employment with
Employer or the expiration of this Agreement, Executive will return all
documents, data and other materials of whatever nature, including, without
limitation, drawings, specifications, research, reports, embodiments, software
and manuals to Employer that pertain to his employment with Employer or to any
Intellectual Property and shall not retain or cause or allow any third party to
retain photocopies or other reproductions of the foregoing.
8.7 Equitable Relief
Executive acknowledges that the provisions of this Section 8 are essential
to Employer, that Employer would not enter into this Agreement if it did not
include this Section 8 and that damages sustained by Employer as a result of a
breach of this Section 8 cannot be adequately remedied by damages, and Executive
agrees that Employer, notwithstanding any other provision of this Agreement,
including, without limitation, Section 14 hereof, in addition to any other
remedy it may have under this Agreement or at law, will be entitled to
injunctive and other equitable relief to prevent or curtail any breach of any
provision of this Agreement, including, without limitation, this Section 8. The
prevailing party in any proceedings under this Section 8 will be entitled to
recover costs and expenses, including attorneys' fees.
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8.8 Effect of Violation
Executive and Employer acknowledge and agree that additional consideration
has been given for Executive's entering into this Section 8, such additional
consideration including, without limitation, certain provisions for termination
payments pursuant to Section 7 hereof. Violation by Executive of this Section 8
will relieve Employer of any obligation it may have to make such termination
payments, but shall not relieve Executive of his obligations, as required
hereunder, not to compete.
9. Representations and Warranties
To induce Employer to enter into this Agreement, Executive represents and
warrants to Employer as follows:
9.1 Qualification
Executive is qualified and capable, with or without reasonable
accommodation, of performing all the essential functions of his position under
this Agreement and of fulfilling his obligations hereunder. Executive agrees, if
Employer requests, to submit to annual medical examinations, to be paid for by
Employer.
9.2 No Violation of Other Agreements
Neither the execution nor the performance of this Agreement by Executive
will violate or conflict in any way with any other agreement by which Executive
may be bound, or with any other duties imposed on Executive by corporate or
other statutory or common law.
9.3 Inventions
Executive has prepared and attached hereto as Schedule B a list of all
inventions, patent applications and patents made or conceived by Executive prior
to the date hereof that are subject to prior agreement or that Executive desires
to exclude from this Agreement, or, if no such list is attached, Executive
hereby represents and warrants to Employer that there are no such inventions,
patent applications or patents.
10. Notice and Cure of Breach
Whenever a breach of this Agreement by either party is relied upon as
justification for any action taken by the other party pursuant to any provision
of this Agreement, other than pursuant to the definition of "Cause" set forth in
Section 7.5(a)(iii) hereof, before such action is taken, the party asserting the
breach of
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this Agreement shall give the other party at least 14 days' prior written notice
of the existence and nature of such breach before taking further action
hereunder and shall give the party purportedly in breach of this Agreement the
opportunity to correct such breach during the 14-day period.
11. Notices
Any notice or request required or permitted to be given hereunder must be
in writing given by personal delivery, overnight courier, certified or
registered mail or facsimile, addressed as respectively set forth below or to
such other address as any party has previously designated by such a notice. The
effective date of any notice or request is (a) three days from the date it is
sent by certified or registered mail so long as it is in fact received within
five days, (b) the date of delivery if personally delivered or sent by overnight
courier, or (c) when sent by facsimile with receipt confirmed.
Notices to Executive and Employer shall be sent as follows:
If to Executive:
Xxxxx Xxxx
MediaTel Corporation
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
If to Employer:
AVT Corporation
00000 X.X. 000xx Xxx
Xxxxxxxx, XX 00000-0000
Fax: (000) 000-0000
Attention: Chief Financial Officer
with a copy to:
Xxxxxxx Coie
0000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000 -3099
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxxx
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12. Assignment
This Agreement is personal to Executive and shall not be assignable by
Executive. Employer may assign its rights and obligations hereunder to (a) any
corporation resulting from any merger, consolidation or other reorganization to
which Employer or AVT is a party, or (b) any corporation, partnership,
association or other person to which Employer or AVT may transfer all or
substantially all the assets and business of Employer or AVT existing at such
time. All the terms and provisions of this Agreement shall be binding on and
inure to the benefit of and be enforceable by the parties hereto and their
respective successors and permitted assigns.
13. Waivers
No delay or failure by any party hereto in exercising, protecting or
enforcing any of its rights, titles, interests or remedies hereunder, and no
course of dealing or performance with respect thereto, will constitute a waiver
thereof. The express waiver by a party hereto of any right, title, interest or
remedy in a particular instance or circumstance will not constitute a waiver
thereof in any other instance or circumstance. All rights and remedies shall be
cumulative and not exclusive of any other rights or remedies.
14. Arbitration
With the exception of proceedings by Employer to enforce its rights under
Section 8 hereof, any controversies or claims arising out of or relating to this
Agreement shall be fully and finally settled by arbitration in accordance with
the Commercial Arbitration Rules of the American Arbitration Association then in
effect (the "AAA Rules"), conducted in San Francisco County, California, by one
arbitrator either mutually agreed upon by Employer and Executive or chosen in
accordance with the AAA Rules, except that the parties thereto shall have any
right to discovery as would be permitted by the Federal Rules of Civil Procedure
for a period of 90 days following the commencement of such arbitration
proceedings and the arbitrator thereof shall resolve any dispute that arises in
connection with such discovery. The prevailing party shall be entitled to costs
and expenses, including attorneys' fees, and judgment upon the award rendered by
the arbitrator may be entered in any court having jurisdiction thereof.
15. Amendments in Writing
No amendment, modification, waiver, termination or discharge of any
provision of this Agreement, nor consent to any departure therefrom by either
party hereto, will be effective unless the same is in writing, specifically
identifying this
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Agreement and the provision intended to be amended, modified, waived, terminated
or discharged and signed by Employer and Executive, and each such amendment,
modification, waiver, termination or discharge will be effective only in the
specific instance and for the specific purpose for which given. No provision of
this Agreement will be varied, contradicted or explained by any oral agreement,
course of dealing or performance or any other matter not set forth in an
agreement in writing and signed by Employer and Executive.
16. Governing Law
This Agreement will be governed by and construed and enforced in accordance
with the internal laws of the State of Washington, without regard to any rules
governing conflicts of laws.
17. Severability
If any provision of this Agreement is held invalid, illegal or
unenforceable in any jurisdiction, for any reason, including, without
limitation, the duration of such provision, its geographical scope or the extent
of the activities prohibited or required by it, then, to the full extent
permitted by law (a) all other provisions hereof will remain in full force and
effect in such jurisdiction and will be liberally construed in order to carry
out the intent of the parties hereto as nearly as may be possible, (b) such
invalidity, illegality or unenforceability will not affect the validity,
legality or enforceability of any other provision hereof, and (c) such provision
shall be deemed reformed to the minimum extent determined necessary by the court
or arbitrator having jurisdiction thereover in order for such provision to be
enforceable under applicable law.
18. Headings
All headings used herein are for convenience only and will not in any way
affect the construction of, or be taken into consideration in interpreting, this
Agreement.
19. Counterparts
This Agreement, and any amendment or modification entered into pursuant to
Section 15 hereof, may be executed in any number of counterparts, each of which
will be deemed an original, but all of which together will constitute one and
the same instrument.
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20. Entire Agreement
This Agreement on and as of the date hereof constitutes the entire
agreement between Employer and Executive with respect to the subject matter
hereof and all prior or contemporaneous oral or-written communications,
understandings or agreements between Employer and Executive with respect to such
subject matter are hereby superseded and nullified in their entireties, except
that (i) Executive shall be entitled to the $100,000 "Change of Control" payment
with respect to the Merger (but not any subsequent Change of Control) described
in that letter from Employer to Executive dated October 29, 1998, (ii) except as
specifically provided in Section 4.2.3 with respect to the MediaTel MICP, and
(iii) Executive's MediaTel Corporation stock options (including the provisions
regarding acceleration in certain circumstances) shall remain in force, as
assumed by AVT in the Merger.
IN WITNESS WHEREOF, the parties have executed and entered into this
Agreement on the date set forth above.
EMPLOYEE
/s/ Xxxxx Xxxx
--------------------------------------
Xxxxx Xxxx
MEDIATEL CORPORATION
By /s/ Xxxxxxx X. XxXxxxx
------------------------------------
Its___________________________________
AVT CORPORATION
By /s/ Xxxxxxx X. XxXxxxx
------------------------------------
Its___________________________________
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