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EXHIBIT 10.2
EXECUTIVE EMPLOYMENT
AND SEVERANCE AGREEMENT
THIS EXECUTIVE EMPLOYMENT AND SEVERANCE AGREEMENT (the "AGREEMENT") is
executed as of the 7th day of October, 1997, by and between InterAmericas
Communications Corporation, a Texas corporation (hereinafter referred to as the
"COMPANY"), and Xxxxxxxx X. Northland (hereinafter referred as the "EXECUTIVE").
WITNESSETH:
WHEREAS, the Company desires to assure itself of the benefit of the
Executive's efforts and services for a period of at least three years from the
date hereof:
WHEREAS, the Executive is willing to commit himself to serve the
Company, on the terms and conditions herein provided;
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; and
WHEREAS, this Agreement has been reviewed and approved by the Company's
Compensation Committee of the Board of Directors.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, the parties hereto mutually
covenant and agree 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
concerning 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.
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(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.
(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 (unless
significantly changed without the Executive's consent); or
(iv) Gross Negligence by the Executive in performing
the Executive's material duties or responsibilities (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 October 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;
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(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;
(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 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) The assignment to the Executive of duties,
responsibilities or authority that is materially inconsistent
with Sections 4(a) and 4(b) hereof; or
(vi) 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 be for a period of three years commencing on
the Effective Date and end on the third anniversary thereof. Such period is
hereinafter defined as the "Employment Term."
4. POSITIONS AND DUTIES.
(a) The Executive shall serve as Chairman of the Board,
President and Chief Executive Officer 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,
provided such duties, responsibilities and authority are of a nature customarily
assigned to directors and chief executive officers of companies similar in size
and structure to the Company. The Executive shall devote substantially the
entire Executive's working time and reasonable efforts to the business and
affairs of the Company.
(b) The Executive shall have the authority to do or to
delegate to another executive officer of the Company or any subsidiary of the
Company the following, provided, however, the Executive Committee or the Board
of Directors must approve those items exceeding $250,000 in total:
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(i) Approve budgets, cash flow plans and schedules
and any amendments thereto;
(ii) Enter into or materially amending any contract
for the sale, lease, exchange or other disposition of any
portion of the property or assets of the Company other than in
the ordinary and normal course of business, including, without
limitation, any lease, or contract for the disposition of any
real property;
(iii) Approve all employment contracts, employee
benefit plans, parameters for collective bargaining and other
material labor agreements, if any, fundamental personnel
policies and all material amendments thereto;
(iv) Appoint all officers of subsidiaries of the
Company, subject to compliance with applicable local laws and
regulations. Such appointment will include consultation with
the Company's Board of Directors;
(v) Approve the Company's operating and expansion
program, cash flow plans and schedules and any amendments
thereto;
(vi) Commence, terminate or settle any claim or
lawsuit or other legal action or arbitral or administrative
proceeding, after obtaining any required approval of the
Executive Committee;
(vii) Incur indebtedness not in excess of $250,000
in aggregate principal amount at any one time outstanding;
(viii) Provide or acquire all materials, supplies,
machinery, equipment and services required for the Company and
disposing of the same in the ordinary course of business;
(ix) Procure from outside experts and consultants
all legal, accounting, and other professional services
required by the Company;
(x) Hire, or allocate from its own personnel, all
executives, managers and employees required for the operation
of the business of the Company, including the selection, terms
of employment and termination thereof, rights of compensation
and the supervision, direction, training and assignment of
duties of all employees;
(xi) Prepare and file all reports, returns and
notices required to be filed by the Company;
(xii) Secure and maintain adequate liability and
property insurance, in accordance with good industry practice,
covering the insurable risks of the Company;
(xiii) Open and maintain such bank accounts in the
Company's name as the Executive shall deem appropriate, with
funds authorized to be withdrawn therefrom upon signature of
such Executive, Executive Committee or Board of Directors as
the Executive shall deem appropriate;
(xiv) Take any action contemplated to be taken under
the Indenture relating to the Company's offering of Units
through UBS Securities or any type of financing;
(xv) Take any other action that may be authorized
by the Bord of Directors; and;
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(xvi) Represent, direct and manage all of the
affiliates and or subsidiaries of the Company, subject to
compliance with applicable laws and regulations.
(c) The Executive shall report to the Board of Directors.
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.
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) Upon execution of this Agreement, (i) the Executive shall
be paid a signing bonus of $250,000; (ii) all of the 1,000,000 options
to purchase the Company's Common Stock par value $.001 per share
("Common Stock") granted to the Executive under his prior employment
agreement with the Company shall vest and become immediately
exercisable (iii) the Executive shall receive 600,000 shares of Common
Stock (the "Incentive Shares"); and (iv) the Executive shall be granted
an option (the "Option") to purchase 600,000 shares of the Company's
Common Stock. One-third of the Option may be exercised, in whole or in
part, upon the signing of this Agreement and shall represent the right
to purchase 200,000 shares of Common Stock; one-third of the Option
shall vest one year after the signing of this Agreement and shall
represent the right to purchase 200,000 shares of Common Stock; and
one-third of the Option shall vest two years after the signing of this
Agreement and shall represent the right to purchase 200,000 shares of
Common Stock. All shares of Common Stock subject to the Option may be
purchased at a price of $2.13 per share, subject to adjustment as set
forth in an Option Agreement between the Company and the Executive. 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 Reason, any portion of the Option which
has not vested prior to such termination or resignation shall be
canceled 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. The Company
shall use its best efforts to provide assistance to cause a loan to be
provided to the Executive in an amount which represents his estimated
income tax liability resulting from the issuance of the Incentive
Shares, through an investment banker or other third party, if
available, or from the Company, if such other entities are unwilling to
make such a loan.
(b) The Company shall pay to the Executive an annualized base
salary at a rate of (i) $350,000 during the first year of the
Employment Term, (ii) $400,000 during the second year of the Employment
Term and (iii) $450,000 during the third year of the Employment Term.
All payments of base salary shall be made in equal installments as
nearly as practicable on the fifteenth and last days of each month, in
arrears. The Executive's base salary may be increased above the
foregoing amounts at the discretion of the Board of Directors.
(c) The Executive shall be entitled to receive an annual
performance award (a "Bonus"), as determined by the Board of Directors
in its reasonable discretion, not to exceed the Executive's prevailing
annual base salary, based upon the fulfillment of the Executive's
duties as
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specified in Section 4(b) hereof and the achievement of certain
performance criteria (the "Performance Criteria"). Within 60 days prior
to the end of each fiscal year of the Company during the Term, the
Compensation Committee shall provide a description of the Performance
Criteria to the Executive for the ensuing year of the Term. 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. The Executive shall also be compensated
for Incremental Revenues generated during the term of this Agreement.
Incremental Revenues shall be defined as the increase in revenues
earned by the Company in any fiscal year relative to the prior fiscal
year. The Revenue Performance Award shall be paid as follows: (a) In
March 1998, the Executive shall be paid 2.5% of the Incremental
Revenues generated in the 1997 fiscal year, (b) in March 1999, the
Executive shall be paid 2.0% of the Incremental Revenues generated in
the 1998 fiscal year, and (c) in March 2000, the Executive shall be
paid 1.5% of the Incremental Revenues generated in the 1999 fiscal
year. The Incremental Revenues upon which the Revenue Performance Award
is calculated shall only be calculated for the immediately preceding
fiscal year, and shall not be cumulative over the term of this
Agreement. In addition, the 1997 revenues of Iusatel Chile S.A. shall
not be considered for purposes of determining the Incremental Revenues
of the Company under this Agreement.
(d) 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;
(e) The Executive hereby is granted an additional option (the
"Additional Option") to purchase 300,000 shares of the Company's Common
Stock. The Additional Option may be exercised, in whole or in part,
subject to the following sentence, in accordance with the following
vesting schedule: (i) one-third of the Additional Option shall vest
immediately upon the signing this Agreement and shall represent the
right to purchase 100,000 shares of Common Stock at $4.00 per share;
(ii) one-third of the Additional Option shall vest one year after the
signing of this Agreement and shall represent the right to purchase
100,000 shares of Common Stock at $6.00 per share; and (iii) one-third
of the Additional Option shall vest two years after the signing of this
Agreement and shall represent the right to purchase 100,000 shares of
Common Stock at $8.00 per share. The Additional Option shall expire on
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 Reason, any portion of the Option which
has not vested prior to such termination or resignation shall be
canceled 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 "2" attached hereto
(f) The Executive shall be entitled to four weeks paid
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.
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(h) The Executive shall be provided with major medical,
hospitalization, and dental insurance and other benefits upon terms and
conditions similar to those provided to the Company's other executive
officers.
(i) The Executive shall be provided with disability insurance
and life insurance in an amount that will not exceed annual premium
payments by the Company of $25,000.00.
(j) The Executive shall be provided a car allowence not to
exceed $1,000 per month.
(k) The Executive shall be allowed to participate in a 401K
retirement program that provides a Company contribution that is equal
to the maximum amount permitted by law.
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.
Any present value or similar factor shall not reduce such lump sum
payment. 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 due to 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 the cure period specified
in Section 1(e) hereof, the Executive shall continue to receive 50% of
the Executive's base salary
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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 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
termination, 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.
A) 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 (other than termination upon the expiration of the
Employment Term) that the Executive will not:
(i) 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
(ii) 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
(iii) 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
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(iv) 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.
B) Notwithstanding anything in this Agreement to the contrary the
Executive shall be entitled to continue receive his base salary as provided in
section 6(b) hereof during the period in which the Executive is restricted from
acting pursuant to section 15(a) hereof. Furthermore, the Company recognizes and
agrees that the Executive is a 50% shareholder and Director in Northland
Communications, Inc., a company which provides Internet-related services, and
that such involvement shall not be deemed to constitute a conflict of interest
with the Executive's responsibilities to the Company or to otherwise violate the
provisions of this section 15.
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.
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
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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.
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
withheld from 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. 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.
24. 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.
25. 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.
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26. HEADINGS.
The headings herein contained are for reference only and shall not
affect the meaning interpretation of any provision of this Agreement.
27. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original but all of which together will constitute one
and the same instrument.
28. TERMINATION OF EXISTING EMPLOYMENT AGREEMENT.
Upon the Effective Date, the existing employment agreement between the
Company and the Executive shall terminate and shall be of no further force or
effect.
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/ Xxxxxxx X. Xxxx XX
------------------------------------------
Xxxxxxx X. Xxxx XX
Chief Financial Officer
On behalf of the Company as approved by the
Board of Directors of the Company on
September 9, 1997 and September 22, 1997,
and as also approved by the Compensation
Committee of the Board of Directors of the
Company
/s/ Xxxxxxxx X. Northland
------------------------------------------
Xxxxxxxx X. Northland
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