EXHIBIT 10.1
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.
(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;
(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
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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:
(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;
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(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 Board of Directors; and;
(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.
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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 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
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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.
(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 allowance 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.
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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).
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.
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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 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
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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
(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
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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 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
10
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.
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
11
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
12
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (the "Agreement") is dated as of the 9th
day of September, 1997 (the "Grant Date"), by and between INTERAMERICAS
COMMUNICATIONS CORPORATION (the "Grantor") and XXXXXXXX X. NORTHLAND (the
"Optionee").
W I T N E S S E T H:
WHEREAS, in consideration of prior services and services to be rendered
by the Optionee to the Grantor and certain promises made by the Optionee to the
Grantor, the Grantor desires to grant the Optionee an option to purchase SIX
HUNDRED THOUSAND (600,000) shares of Common Stock, par value $.001 per share
("Common Stock"), of the Grantor, upon the terms and subject to the conditions
hereinafter set forth.
NOW, THEREFORE, the Grantor hereby agrees, for the benefit of the
Optionee, as follows:
SECTION 1. GRANT OF OPTION. Subject to the provisions of this
Agreement, the Grantor hereby grants to the Optionee a non-qualified stock
option (the "Option") (subject to Section 7 hereof) to purchase from the Grantor
SIX HUNDRED THOUSAND (600,000) shares of Common Stock (after the exercise of the
Option and the acquisition of the shares, the "Option Shares"), at the price of
$2.13 per whole share (the "Option Price").
SECTION 2. EXERCISE OF OPTION.
(a) VESTING SCHEDULE. The Option may be exercised in whole or
in part, in accordance with the following vesting schedule: (i) 1/3 of the
Option shall vest immediately upon the signing of 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 singing of this Agreement. The Option
shall expire on the tenth anniversary hereof (the "Expiration Date"), unless
sooner terminated as set forth herein,
(b) METHOD OF EXERCISE. The Option is exercisable by the
Optionee's delivering to the Grantor a written notice specifying the number of
the Option Shares that the Optionee wishes to purchase pursuant to the Option
and tendering the Option Price multiplied by the number of such Option Shares.
The Option Price of any Option Shares purchased shall be paid in cash, by
certified or official bank check or by money order. The Optionee shall be deemed
to be a holder of the Option Shares immediately upon, and to the extent of, the
exercise of this Option as set forth above.
(c) NUMBER OF SHARES EXERCISABLE. Each exercise of an Option
hereunder shall reduce the total number of Option Shares that may thereafter be
purchased under this Option.
SECTION 3. SHARE CERTIFICATES. Upon each exercise of the right to
purchase Option Shares pursuant to this Option, the Grantor shall cause one or
more stock certificates evidencing the Optionee's ownership of the Option Shares
to be issued to the Optionee. A legend in substantially the form set forth below
shall be placed upon each stock certificate representing the Option Shares:
"The shares of stock represented by this certificate have not
been registered under the Securities Act of 1933, as amended
("Act"), or the securities laws of any state or other
jurisdiction, including the Florida Securities Act, and are
restricted securities as that term is defined under Rule 144
promulgated under the Act. These shares may not be sold,
transferred, pledged, hypothecated or otherwise disposed of in
any manner (a "Transfer") unless they are registered under the
Act and the securities laws of all applicable states and other
jurisdictions or unless the request for Transfer is
accompanied by a favorable opinion of
counsel satisfactory to the issuer, stating that such Transfer
will not result in a violation of such laws."
SECTION 4. ANTI-DILUTION PROVISIONS.
(a) ADJUSTMENT FOR RECAPITALIZATION. If the Grantor shall at
any time subdivide its outstanding shares of Common Stock by recapitalization,
reclassification or split-up thereof, or if the Grantor shall declare a stock
dividend or distribute shares of Common Stock to its stockholders, the number of
Option Shares then subject to this Option immediately prior to such subdivision
shall be proportionately increased and the exercise price shall be
proportionately decreased, and if the Grantor shall at any time combine the
outstanding shares of Common Stock by recapitalization, reclassification or
combination thereof, the number of option shares then subject to this Option
immediately prior to such combination shall be proportionately decreased and the
exercise price shall be proportionately increased. Any such adjustments pursuant
to this Section 4(a) shall be effective at the close of business on the
effective date of such subdivision or combination or if any adjustment is the
result of a stock dividend or distribution then the effective date for such
adjustment based thereon shall be the record date therefor.
(b) ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION, MERGER, ETC.
In case of any reorganization of the Grantor or in case the Grantor shall
consolidate with or merge into another corporation or convey all or
substantially all of its assets to another corporation, then, and in each such
case, the Optionee upon the exercise of this Option at any time after the
consummation of such reorganization, consolidation, merger or conveyance, shall
be entitled to receive, in lieu of the Option Shares issuable upon the exercise
of this Option prior to such consummation, the securities or property to which
the Optionee would have been entitled upon such consummation if the Optionee had
exercised this Option immediately prior thereto; in each such case, the terms of
this Option shall be applicable to the securities or property receivable upon
the exercise of this Option after such consummation.
(c) NO ADJUSTMENT FOR STOCK ISSUANCES. Except as otherwise
expressly provided herein, the issuance by the Grantor of shares of its capital
stock of any class, or securities convertible into shares of capital stock of
any class, either in connection with the direct sale or upon the exercise of
rights or warrants to subscribe therefor, or upon conversion of shares or
obligations of the Grantor convertible into such shares or other securities,
shall not affect this Option, and no adjustment by reason thereof shall be made
with respect to the number of or exercise price of Option Shares then subject to
this Option.
(d) NO EFFECT ON CORPORATE ACTIONS. Without limiting the
generality of the foregoing, the existence of this Option shall not affect in
any manner the right or power of the Grantor to approve or the Grantor to make,
authorize or consummate (i) any or all adjustments, recapitalizations,
reorganizations or other changes in the Grantor's capital structure or its
business; (ii) any merger or consolidation of the Grantor; (iii) any issuance by
the Grantor of debt securities, or preferred or preference stock that would rank
above the Option Shares subject to outstanding Options; (iv) the dissolution or
liquidation of the Grantor; (v) any sale, transfer or assignment of all or any
part of the assets or business of the Grantor or (vi) any other corporate act or
proceeding, whether of a similar character or otherwise.
(e) IMMEDIATE EXERCISE OF OPTION. Unless otherwise provided
herein, each outstanding Option shall become immediately fully exercisable upon
the following:
(i) If there occurs any transaction (which shall
include a series of transactions occurring within 60 days or occurring pursuant
to a plan), that has the result that stockholders of the Company immediately
before such transaction cease to own at least 51 percent of the voting stock of
the Company or of any entity that results from the participation of the Company
in a reorganization, consolidation, merger, liquidation or any other form of
corporate transaction;
(ii) If the stockholders of the Company shall approve
a plan of merger, consolidation, reorganization, liquidation or dissolution in
which the Company does not survive (unless the approved merger, consolidation,
reorganization, liquidation or dissolution is subsequently abandoned); or
2
(iii) If the stockholders of the Company shall
approve a plan for the sale, lease, exchange or other disposition of all or
substantially all the property and assets of the Company (unless such plan is
subsequently abandoned).
SECTION 5. NON-TRANSFERABILITY OF OPTION. This Option may not be
transferred in any manner other than by will or by the laws of descent or
distribution and may be exercised during the lifetime of the Optionee only by
the Optionee. The terms of this Option Agreement shall be binding upon the
executors, administrators, heirs, successors and assigns of the Optionee.
SECTION 6. TERMINATION OF OPTION. The Option shall terminate under the
following circumstances:
(a) The Option shall terminate on the Expiration Date;
(b) The Option shall terminate three months after the
Optionee's termination of employment or ceases to be a director of the Company;
(c) If the Optionee dies before the Option terminates pursuant
to Section 6(a) or 6(b), above, the Option shall terminate on the earlier of (i)
the date on which the Option would have lapsed had the Optionee lived and had
his employment status (I.E., whether the Optionee was a employed on the date of
his death or had previously terminated employment) remained unchanged; or (ii)
15 months after the date of the Optionee's death. Upon the Optionee's death, any
exercisable Options may be exercised by the Optionee's legal representative or
representatives, by the person or persons entitled to do so under the Optionee's
last will and testament, or, if the Optionee shall fail to make testamentary
disposition of the Option or shall die intestate, by the person or persons
entitled to receive said Option under the applicable laws of descent and
distribution.
SECTION 7. APPROVAL OF STOCK OPTION PLAN. The Company intends, at its
next Annual Meeting of Stockholders (the "Annual Meeting"), to submit for
stockholder consideration and approval its 1997 Stock Option Plan (the "Plan").
In the event that the Plan is approved by the Company's stockholders, then this
Option shall be deemed to be an Incentive Stock Option (within the meaning of
the Internal Revenue Code of 1986, as amended, (the "Code") have been granted
under and pursuant to the Plan. If, however, the Plan is not so approved at the
Annual Meeting, then this Option shall be deemed to be a non-qualified stock
option (which means any option which is not an Incentive Stock Option under the
Code).
SECTION 8. NO RIGHTS AS SHAREHOLDER. The Optionee shall have no rights
as a shareholder in respect to the Option Shares as to which the Option shall
not have been exercised and payment made as herein provided.
SECTION 9. ISSUANCE OF SHARES. As a condition of any sale or issuance
of Option Shares upon exercise of this Option, the Grantor may require such
agreements or undertakings, if any, as the Grantor may deem necessary or
advisable to assure compliance with any such applicable securities or other law
or regulation including, but not limited to, the following:
(a) a representation and warranty by the Optionee to the
Grantor, at the time this Option is exercised, that he is acquiring the Option
Shares to be issued to him for investment and not with a view to, or for sale in
connection with, the distribution of any such Option Shares; and
(b) a representation, warranty and/or agreement to be bound by
any legends that are, in the opinion of the Grantor, necessary or appropriate to
comply with the provisions of any securities law deemed by the Grantor to be
applicable to the issuance of the Option Shares and are endorsed upon the Option
Share certificates.
3
SECTION 10. MISCELLANEOUS PROVISIONS.
(a) NOTICES. Unless otherwise specifically provided herein,
all notices to be given hereunder shall be in writing and sent to the parties by
certified mail, return receipt requested, to each party's respective address as
set forth in the books and records of the Grantor, or to such other address as
such party shall give to the other party hereto by a notice given in accordance
with this Section. Except as otherwise provided in this Agreement, notice shall
be effective when deposited in the United States mails properly addressed and
postage prepaid. If such notice is sent other than by the United States mails,
such notice shall be effective when actually received by the party being
notified.
(b) ASSIGNMENT. This Agreement may not be assigned in whole or
in part by the Optionee.
(c) FURTHER ASSURANCES. The Optionee shall execute and deliver
such other instruments and do such other acts as may be necessary to effectuate
the intent and purposes of this Agreement.
(d) CAPTIONS. The captions contained in this Agreement are
inserted only as a matter of convenience and in no way define, limit, extend or
prescribe the scope of this Agreement or the intent of any of the provisions
hereof.
(e) COMPLETENESS AND MODIFICATION. This Agreement constitutes
the entire understanding between the parties hereto and supersedes all prior and
contemporaneous agreements or understandings among the parties hereto concerning
the grant by the Grantor to the Optionee of stock options and shall not be
terminated or amended except in writing executed by each of the parties hereto.
(f) WAIVER. The waiver of a breach of any term or condition of
this Agreement shall not be deemed to constitute the waiver of any other breach
or the same or any other term or condition.
(g) SEVERABILITY. The invalidity or unenforceability, in whole
or in part, of any covenant, promise or undertaking, or any section, subsection,
paragraph, sentence, clause, phrase or word or of any provisions of this
Agreement shall not affect the validity or enforceability of the remaining
portions thereof.
(h) CONSTRUCTION. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Florida without
regard to any conflict of law rule or principle that would result in the
application of the laws of another jurisdiction.
(i) BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the heirs, successors, estate and personal
representatives of the Optionee and the Grantor.
4
IN WITNESS WHEREOF, the Grantor has executed this Agreement for the
benefit of the Optionee as of the date first above written.
GRANTOR:
INTERAMERICAS COMMUNICATIONS
CORPORATION
By: /S/ XXXXXXX X. XXXX XX
---------------------------
Name: Xxxxxxx X. Xxxx XX
Title: Chief Financial Officer
OPTIONEE:
/S/ XXXXXXXX X. NORTHLAND
------------------------------
Xxxxxxxx X. Northland
5
EXHIBIT A
INTERAMERICAS COMMUNICATIONS CORPORATION
EXERCISE NOTICE
InterAmericas Communications Corporation
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxx 00000
SECTION 1. EXERCISE OF OPTION. Effective as of today, _____________,
199__, the undersigned ("Purchaser") hereby elects to purchase __________ shares
(the "Shares") of the Common Stock of InterAmericas Communications Corporation
(the "Company") under and pursuant to the Stock Option Agreement dated
_______________ (the "Option Agreement"). The purchase price for the Shares
shall be as set forth in the Option Agreement, as adjusted.
SECTION 2. DELIVERY OF PAYMENT. Purchaser herewith delivers to the
Company the full purchase price for the Shares (either in cash, certified or
official bank check or by money order).
SECTION 3. REPRESENTATIONS OF PURCHASER. Purchaser acknowledges that
Purchaser has received, read and understood the Option Agreement and agrees to
abide by and be bound by its terms and conditions.
SECTION 4. RIGHTS AS STOCKHOLDER. Until the issuance (as evidenced by
the appropriate entry on the books of the Company or of a duly authorized
transfer agent of the Company) of the stock certificate evidencing such Shares,
no right to vote or receive dividends or any other rights as a shareholder shall
exist with respect to the Optioned Stock, notwithstanding the exercise of the
Option. A share certificate for the number of Shares so acquired shall be issued
to the Optionee as soon as practicable after exercise of the Option.
SECTION 5. TAX CONSULTATION. Purchaser understands that Purchaser may
suffer adverse tax consequences as a result of Purchaser's purchase or
disposition of the Shares. Purchaser represents that Purchaser has consulted
with any tax consultants Purchaser deems advisable in connection with the
purchase or disposition of the Shares and that Purchaser is not relying on the
Company for any tax advice.
SECTION 6. ENTIRE AGREEMENT. The Option Agreement is incorporated
herein by reference. This Exercise Notice and the Option Agreement constitute
the entire agreement of the parties and supersede in their entirety all prior
undertakings and agreements of the Company and Optionee with respect to the
subject matter hereof.
Submitted by: Accepted by:
OPTIONEE: INTERAMERICAS COMMUNICATIONS
CORPORATION
By:_____________________________ By:_________________________
Name:_______________________
Title:______________________
ADDRESS:
6
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (the "Agreement") is dated as of the 9th
day of September, 1997 (the "Grant Date"), by and between INTERAMERICAS
COMMUNICATIONS CORPORATION (the "Grantor") and XXXXXXXX X. NORTHLAND (the
"Optionee").
W I T N E S S E T H:
WHEREAS, in consideration of prior services and services to be rendered
by the Optionee to the Grantor and certain promises made by the Optionee to the
Grantor, the Grantor desires to grant the Optionee an option to purchase ONE
HUNDRED THOUSAND (100,000) shares of Common Stock, par value $.001 per share
("Common Stock"), of the Grantor, upon the terms and subject to the conditions
hereinafter set forth.
NOW, THEREFORE, the Grantor hereby agrees, for the benefit of the
Optionee, as follows:
SECTION 1. GRANT OF OPTION. Subject to the provisions of this
Agreement, the Grantor hereby grants to the Optionee a non-qualified stock
option (the "Option") (subject to Section 7 hereof) to purchase from the Grantor
ONE HUNDRED THOUSAND (100,000) shares of Common Stock (after the exercise of the
Option and the acquisition of the shares, the "Option Shares"), at the price of
$4.00 per whole share (the "Option Price").
SECTION 2. EXERCISE OF OPTION.
(a) The Option may be exercised in whole or in part at any
time commencing on the date hereof and ending on the tenth anniversary hereof
(the "Expiration Date"), unless sooner terminated as set forth herein, by the
Optionee's delivering to the Grantor a written notice specifying the number of
the Option Shares that the Optionee wishes to purchase pursuant to the Option
and tendering the Option Price multiplied by the number of such Option Shares.
The Option Price of any Option Shares purchased shall be paid in cash, by
certified or official bank check or by money order. The Optionee shall be deemed
to be a holder of the Option Shares immediately upon, and to the extent of, the
exercise of this Option as set forth above.
(b) NUMBER OF SHARES EXERCISABLE. Each exercise of an Option
hereunder shall reduce the total number of Option Shares that may thereafter be
purchased under this Option.
SECTION 3. SHARE CERTIFICATES. Upon each exercise of the right to
purchase Option Shares pursuant to this Option, the Grantor shall cause one or
more stock certificates evidencing the Optionee's ownership of the Option Shares
to be issued to the Optionee. A legend in substantially the form set forth below
shall be placed upon each stock certificate representing the Option Shares:
"The shares of stock represented by this certificate have not
been registered under the Securities Act of 1933, as amended
("Act"), or the securities laws of any state or other
jurisdiction, including the Florida Securities Act, and are
restricted securities as that term is defined under Rule 144
promulgated under the Act. These shares may not be sold,
transferred, pledged, hypothecated or otherwise disposed of in
any manner (a "Transfer") unless they are registered under the
Act and the securities laws of all applicable states and other
jurisdictions or unless the request for Transfer is
accompanied by a favorable opinion of counsel satisfactory to
the issuer, stating that such Transfer will not result in a
violation of such laws."
SECTION 4. ANTI-DILUTION PROVISIONS.
(a) ADJUSTMENT FOR RECAPITALIZATION. If the Grantor shall at
any time subdivide its outstanding shares of Common Stock by recapitalization,
reclassification or split-up thereof, or if the Grantor shall declare a stock
dividend or distribute shares of Common Stock to its stockholders, the number of
Option Shares then subject to this Option immediately prior to such subdivision
shall be proportionately increased and the exercise price shall be
proportionately decreased, and if the Grantor shall at any time combine the
outstanding shares of Common Stock by recapitalization, reclassification or
combination thereof, the number of option shares then subject to this Option
immediately prior to such combination shall be proportionately decreased and the
exercise price shall be proportionately increased. Any such adjustments pursuant
to this Section 4(a) shall be effective at the close of business on the
effective date of such subdivision or combination or if any adjustment is the
result of a stock dividend or distribution then the effective date for such
adjustment based thereon shall be the record date therefor.
(b) ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION, MERGER, ETC.
In case of any reorganization of the Grantor or in case the Grantor shall
consolidate with or merge into another corporation or convey all or
substantially all of its assets to another corporation, then, and in each such
case, the Optionee upon the exercise of this Option at any time after the
consummation of such reorganization, consolidation, merger or conveyance, shall
be entitled to receive, in lieu of the Option Shares issuable upon the exercise
of this Option prior to such consummation, the securities or property to which
the Optionee would have been entitled upon such consummation if the Optionee had
exercised this Option immediately prior thereto; in each such case, the terms of
this Option shall be applicable to the securities or property receivable upon
the exercise of this Option after such consummation.
(c) NO ADJUSTMENT FOR STOCK ISSUANCES. Except as otherwise
expressly provided herein, the issuance by the Grantor of shares of its capital
stock of any class, or securities convertible into shares of capital stock of
any class, either in connection with the direct sale or upon the exercise of
rights or warrants to subscribe therefor, or upon conversion of shares or
obligations of the Grantor convertible into such shares or other securities,
shall not affect this Option, and no adjustment by reason thereof shall be made
with respect to the number of or exercise price of Option Shares then subject to
this Option.
(d) NO EFFECT ON CORPORATE ACTIONS. Without limiting the
generality of the foregoing, the existence of this Option shall not affect in
any manner the right or power of the Grantor to approve or the Grantor to make,
authorize or consummate (i) any or all adjustments, recapitalizations,
reorganizations or other changes in the Grantor's capital structure or its
business; (ii) any merger or consolidation of the Grantor; (iii) any issuance by
the Grantor of debt securities, or preferred or preference stock that would rank
above the Option Shares subject to outstanding Options; (iv) the dissolution or
liquidation of the Grantor; (v) any sale, transfer or assignment of all or any
part of the assets or business of the Grantor or (vi) any other corporate act or
proceeding, whether of a similar character or otherwise.
(e) IMMEDIATE EXERCISE OF OPTION. Unless otherwise provided
herein, each outstanding Option shall become immediately fully exercisable upon
the following:
(i) If there occurs any transaction (which shall
include a series of transactions occurring within 60 days or occurring pursuant
to a plan), that has the result that stockholders of the Company immediately
before such transaction cease to own at least 51 percent of the voting stock of
the Company or of any entity that results from the participation of the Company
in a reorganization, consolidation, merger, liquidation or any other form of
corporate transaction;
(ii) If the stockholders of the Company shall approve
a plan of merger, consolidation, reorganization, liquidation or dissolution in
which the Company does not survive (unless the approved merger, consolidation,
reorganization, liquidation or dissolution is subsequently abandoned); or
(iii) If the stockholders of the Company shall
approve a plan for the sale, lease, exchange or other disposition of all or
substantially all the property and assets of the Company (unless such plan is
subsequently abandoned).
2
SECTION 5. NON-TRANSFERABILITY OF OPTION. This Option may not be
transferred in any manner other than by will or by the laws of descent or
distribution and may be exercised during the lifetime of the Optionee only by
the Optionee. The terms of this Option Agreement shall be binding upon the
executors, administrators, heirs, successors and assigns of the Optionee.
SECTION 6. TERMINATION OF OPTION. The Option shall terminate under the
following circumstances:
(a) The Option shall terminate on the Expiration Date;
(b) The Option shall terminate three months after the
Optionee's termination of employment or ceases to be a director of the Company;
(c) If the Optionee dies before the Option terminates pursuant
to Section 6(a) or 6(b), above, the Option shall terminate on the earlier of (i)
the date on which the Option would have lapsed had the Optionee lived and had
his employment status (I.E., whether the Optionee was a employed on the date of
his death or had previously terminated employment) remained unchanged; or (ii)
15 months after the date of the Optionee's death. Upon the Optionee's death, any
exercisable Options may be exercised by the Optionee's legal representative or
representatives, by the person or persons entitled to do so under the Optionee's
last will and testament, or, if the Optionee shall fail to make testamentary
disposition of the Option or shall die intestate, by the person or persons
entitled to receive said Option under the applicable laws of descent and
distribution.
SECTION 7. APPROVAL OF STOCK OPTION PLAN. The Company intends, at its
next Annual Meeting of Stockholders (the "Annual Meeting"), to submit for
stockholder consideration and approval its 1997 Stock Option Plan (the "Plan").
In the event that the Plan is approved by the Company's stockholders, then this
Option shall be deemed to be an Incentive Stock Option (within the meaning of
the Internal Revenue Code of 1986, as amended, (the "Code") have been granted
under and pursuant to the Plan. If, however, the Plan is not so approved at the
Annual Meeting, then this Option shall be deemed to be a non-qualified stock
option (which means any option which is not an Incentive Stock Option under the
Code).
SECTION 8. NO RIGHTS AS SHAREHOLDER. The Optionee shall have no rights
as a shareholder in respect to the Option Shares as to which the Option shall
not have been exercised and payment made as herein provided.
SECTION 9. ISSUANCE OF SHARES. As a condition of any sale or issuance
of Option Shares upon exercise of this Option, the Grantor may require such
agreements or undertakings, if any, as the Grantor may deem necessary or
advisable to assure compliance with any such applicable securities or other law
or regulation including, but not limited to, the following:
(a) a representation and warranty by the Optionee to the
Grantor, at the time this Option is exercised, that he is acquiring the Option
Shares to be issued to him for investment and not with a view to, or for sale in
connection with, the distribution of any such Option Shares; and
(b) a representation, warranty and/or agreement to be bound by
any legends that are, in the opinion of the Grantor, necessary or appropriate to
comply with the provisions of any securities law deemed by the Grantor to be
applicable to the issuance of the Option Shares and are endorsed upon the Option
Share certificates.
3
SECTION 10. MISCELLANEOUS PROVISIONS.
(a) NOTICES. Unless otherwise specifically provided herein,
all notices to be given hereunder shall be in writing and sent to the parties by
certified mail, return receipt requested, to each party's respective address as
set forth in the books and records of the Grantor, or to such other address as
such party shall give to the other party hereto by a notice given in accordance
with this Section. Except as otherwise provided in this Agreement, notice shall
be effective when deposited in the United States mails properly addressed and
postage prepaid. If such notice is sent other than by the United States mails,
such notice shall be effective when actually received by the party being
notified.
(b) ASSIGNMENT. This Agreement may not be assigned in whole or
in part by the Optionee.
(c) FURTHER ASSURANCES. The Optionee shall execute and deliver
such other instruments and do such other acts as may be necessary to effectuate
the intent and purposes of this Agreement.
(d) CAPTIONS. The captions contained in this Agreement are
inserted only as a matter of convenience and in no way define, limit, extend or
prescribe the scope of this Agreement or the intent of any of the provisions
hereof.
(e) COMPLETENESS AND MODIFICATION. This Agreement constitutes
the entire understanding between the parties hereto and supersedes all prior and
contemporaneous agreements or understandings among the parties hereto concerning
the grant by the Grantor to the Optionee of stock options and shall not be
terminated or amended except in writing executed by each of the parties hereto.
(f) WAIVER. The waiver of a breach of any term or condition of
this Agreement shall not be deemed to constitute the waiver of any other breach
or the same or any other term or condition.
(g) SEVERABILITY. The invalidity or unenforceability, in whole
or in part, of any covenant, promise or undertaking, or any section, subsection,
paragraph, sentence, clause, phrase or word or of any provisions of this
Agreement shall not affect the validity or enforceability of the remaining
portions thereof.
(h) CONSTRUCTION. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Florida without
regard to any conflict of law rule or principle that would result in the
application of the laws of another jurisdiction.
(i) BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the heirs, successors, estate and personal
representatives of the Optionee and the Grantor.
4
IN WITNESS WHEREOF, the Grantor has executed this Agreement for the
benefit of the Optionee as of the date first above written.
GRANTOR:
INTERAMERICAS COMMUNICATIONS
CORPORATION
By: /S/ XXXXXXX X. XXXX XX
---------------------------
Name: Xxxxxxx X. Xxxx XX
Title: Chief Financial Officer
OPTIONEE:
/S/ XXXXXXXX X. NORTHLAND
------------------------------
Xxxxxxxx X. Northland
5
EXHIBIT A
INTERAMERICAS COMMUNICATIONS CORPORATION
EXERCISE NOTICE
InterAmericas Communications Corporation
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxx 00000
SECTION 1. EXERCISE OF OPTION. Effective as of today, _____________,
199__, the undersigned ("Purchaser") hereby elects to purchase __________ shares
(the "Shares") of the Common Stock of InterAmericas Communications Corporation
(the "Company") under and pursuant to the Stock Option Agreement dated
_______________ (the "Option Agreement"). The purchase price for the Shares
shall be as set forth in the Option Agreement, as adjusted.
SECTION 2. DELIVERY OF PAYMENT. Purchaser herewith delivers to the
Company the full purchase price for the Shares (either in cash, certified or
official bank check or by money order).
SECTION 3. REPRESENTATIONS OF PURCHASER. Purchaser acknowledges that
Purchaser has received, read and understood the Option Agreement and agrees to
abide by and be bound by its terms and conditions.
SECTION 4. RIGHTS AS STOCKHOLDER. Until the issuance (as evidenced by
the appropriate entry on the books of the Company or of a duly authorized
transfer agent of the Company) of the stock certificate evidencing such Shares,
no right to vote or receive dividends or any other rights as a shareholder shall
exist with respect to the Optioned Stock, notwithstanding the exercise of the
Option. A share certificate for the number of Shares so acquired shall be issued
to the Optionee as soon as practicable after exercise of the Option.
SECTION 5. TAX CONSULTATION. Purchaser understands that Purchaser may
suffer adverse tax consequences as a result of Purchaser's purchase or
disposition of the Shares. Purchaser represents that Purchaser has consulted
with any tax consultants Purchaser deems advisable in connection with the
purchase or disposition of the Shares and that Purchaser is not relying on the
Company for any tax advice.
SECTION 6. ENTIRE AGREEMENT. The Option Agreement is incorporated
herein by reference. This Exercise Notice and the Option Agreement constitute
the entire agreement of the parties and supersede in their entirety all prior
undertakings and agreements of the Company and Optionee with respect to the
subject matter hereof.
Submitted by: Accepted by:
OPTIONEE: INTERAMERICAS COMMUNICATIONS
CORPORATION
By: By:
-------------------------- -----------------------
Name: Xxxxxxx X. Xxxx XX
Title:Chief Financial Officer
ADDRESS:
_____________________________
6
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (the "Agreement") is dated as of the 9th
day of September, 1997 (the "Grant Date"), by and between INTERAMERICAS
COMMUNICATIONS CORPORATION (the "Grantor") and XXXXXXXX X. NORTHLAND (the
"Optionee").
W I T N E S S E T H:
WHEREAS, in consideration of prior services and services to be rendered
by the Optionee to the Grantor and certain promises made by the Optionee to the
Grantor, the Grantor desires to grant the Optionee an option to purchase ONE
HUNDRED THOUSAND (100,000) shares of Common Stock, par value $.001 per share
("Common Stock"), of the Grantor, upon the terms and subject to the conditions
hereinafter set forth.
NOW, THEREFORE, the Grantor hereby agrees, for the benefit of the
Optionee, as follows:
SECTION 1. GRANT OF OPTION. Subject to the provisions of this
Agreement, the Grantor hereby grants to the Optionee a non-qualified stock
option (the "Option") (subject to Section 7 hereof) to purchase from the Grantor
ONE HUNDRED THOUSAND (100,000) shares of Common Stock (after the exercise of the
Option and the acquisition of the shares, the "Option Shares"), at the price of
$6.00 per whole share (the "Option Price").
SECTION 2. EXERCISE OF OPTION.
(a) The Option may be exercised in whole or in part at any
time commencing on October 7, 1998 and ending on the tenth anniversary hereof
(the "Expiration Date"), unless sooner terminated as set forth herein, by the
Optionee's delivering to the Grantor a written notice specifying the number of
the Option Shares that the Optionee wishes to purchase pursuant to the Option
and tendering the Option Price multiplied by the number of such Option Shares.
The Option Price of any Option Shares purchased shall be paid in cash, by
certified or official bank check or by money order. The Optionee shall be deemed
to be a holder of the Option Shares immediately upon, and to the extent of, the
exercise of this Option as set forth above.
(b) NUMBER OF SHARES EXERCISABLE. Each exercise of an Option
hereunder shall reduce the total number of Option Shares that may thereafter be
purchased under this Option.
SECTION 3. SHARE CERTIFICATES. Upon each exercise of the right to
purchase Option Shares pursuant to this Option, the Grantor shall cause one or
more stock certificates evidencing the Optionee's ownership of the Option Shares
to be issued to the Optionee. A legend in substantially the form set forth below
shall be placed upon each stock certificate representing the Option Shares:
"The shares of stock represented by this certificate have not
been registered under the Securities Act of 1933, as amended
("Act"), or the securities laws of any state or other
jurisdiction, including the Florida Securities Act, and are
restricted securities as that term is defined under Rule 144
promulgated under the Act. These shares may not be sold,
transferred, pledged, hypothecated or otherwise disposed of in
any manner (a "Transfer") unless they are registered under the
Act and the securities laws of all applicable states and other
jurisdictions or unless the request for Transfer is
accompanied by a favorable opinion of counsel satisfactory to
the issuer, stating that such Transfer will not result in a
violation of such laws."
SECTION 4. ANTI-DILUTION PROVISIONS.
(a) ADJUSTMENT FOR RECAPITALIZATION. If the Grantor shall at
any time subdivide its outstanding shares of Common Stock by recapitalization,
reclassification or split-up thereof, or if the Grantor shall declare a stock
dividend or distribute shares of Common Stock to its stockholders, the number of
Option Shares then subject to this Option immediately prior to such subdivision
shall be proportionately increased and the exercise price shall be
proportionately decreased, and if the Grantor shall at any time combine the
outstanding shares of Common Stock by recapitalization, reclassification or
combination thereof, the number of option shares then subject to this Option
immediately prior to such combination shall be proportionately decreased and the
exercise price shall be proportionately increased. Any such adjustments pursuant
to this Section 4(a) shall be effective at the close of business on the
effective date of such subdivision or combination or if any adjustment is the
result of a stock dividend or distribution then the effective date for such
adjustment based thereon shall be the record date therefor.
(b) ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION, MERGER, ETC.
In case of any reorganization of the Grantor or in case the Grantor shall
consolidate with or merge into another corporation or convey all or
substantially all of its assets to another corporation, then, and in each such
case, the Optionee upon the exercise of this Option at any time after the
consummation of such reorganization, consolidation, merger or conveyance, shall
be entitled to receive, in lieu of the Option Shares issuable upon the exercise
of this Option prior to such consummation, the securities or property to which
the Optionee would have been entitled upon such consummation if the Optionee had
exercised this Option immediately prior thereto; in each such case, the terms of
this Option shall be applicable to the securities or property receivable upon
the exercise of this Option after such consummation.
(c) NO ADJUSTMENT FOR STOCK ISSUANCES. Except as otherwise
expressly provided herein, the issuance by the Grantor of shares of its capital
stock of any class, or securities convertible into shares of capital stock of
any class, either in connection with the direct sale or upon the exercise of
rights or warrants to subscribe therefor, or upon conversion of shares or
obligations of the Grantor convertible into such shares or other securities,
shall not affect this Option, and no adjustment by reason thereof shall be made
with respect to the number of or exercise price of Option Shares then subject to
this Option.
(d) NO EFFECT ON CORPORATE ACTIONS. Without limiting the
generality of the foregoing, the existence of this Option shall not affect in
any manner the right or power of the Grantor to approve or the Grantor to make,
authorize or consummate (i) any or all adjustments, recapitalizations,
reorganizations or other changes in the Grantor's capital structure or its
business; (ii) any merger or consolidation of the Grantor; (iii) any issuance by
the Grantor of debt securities, or preferred or preference stock that would rank
above the Option Shares subject to outstanding Options; (iv) the dissolution or
liquidation of the Grantor; (v) any sale, transfer or assignment of all or any
part of the assets or business of the Grantor or (vi) any other corporate act or
proceeding, whether of a similar character or otherwise.
(e) IMMEDIATE EXERCISE OF OPTION. Unless otherwise provided
herein, each outstanding Option shall become immediately fully exercisable upon
the following:
(i) If there occurs any transaction (which shall
include a series of transactions occurring within 60 days or occurring pursuant
to a plan), that has the result that stockholders of the Company immediately
before such transaction cease to own at least 51 percent of the voting stock of
the Company or of any entity that results from the participation of the Company
in a reorganization, consolidation, merger, liquidation or any other form of
corporate transaction;
(ii) If the stockholders of the Company shall approve
a plan of merger, consolidation, reorganization, liquidation or dissolution in
which the Company does not survive (unless the approved merger, consolidation,
reorganization, liquidation or dissolution is subsequently abandoned); or
(iii) If the stockholders of the Company shall
approve a plan for the sale, lease, exchange or other disposition of all or
substantially all the property and assets of the Company (unless such plan is
subsequently abandoned).
2
SECTION 5. NON-TRANSFERABILITY OF OPTION. This Option may not be
transferred in any manner other than by will or by the laws of descent or
distribution and may be exercised during the lifetime of the Optionee only by
the Optionee. The terms of this Option Agreement shall be binding upon the
executors, administrators, heirs, successors and assigns of the Optionee.
SECTION 6. TERMINATION OF OPTION. The Option shall terminate under the
following circumstances:
(a) The Option shall terminate on the Expiration Date;
(b) The Option shall terminate three months after the
Optionee's termination of employment or ceases to be a director of the Company;
(c) If the Optionee dies before the Option terminates pursuant
to Section 6(a) or 6(b), above, the Option shall terminate on the earlier of (i)
the date on which the Option would have lapsed had the Optionee lived and had
his employment status (I.E., whether the Optionee was a employed on the date of
his death or had previously terminated employment) remained unchanged; or (ii)
15 months after the date of the Optionee's death. Upon the Optionee's death, any
exercisable Options may be exercised by the Optionee's legal representative or
representatives, by the person or persons entitled to do so under the Optionee's
last will and testament, or, if the Optionee shall fail to make testamentary
disposition of the Option or shall die intestate, by the person or persons
entitled to receive said Option under the applicable laws of descent and
distribution.
SECTION 7. APPROVAL OF STOCK OPTION PLAN. The Company intends, at its
next Annual Meeting of Stockholders (the "Annual Meeting"), to submit for
stockholder consideration and approval its 1997 Stock Option Plan (the "Plan").
In the event that the Plan is approved by the Company's stockholders, then this
Option shall be deemed to be an Incentive Stock Option (within the meaning of
the Internal Revenue Code of 1986, as amended, (the "Code") have been granted
under and pursuant to the Plan. If, however, the Plan is not so approved at the
Annual Meeting, then this Option shall be deemed to be a non-qualified stock
option (which means any option which is not an Incentive Stock Option under the
Code).
SECTION 8. NO RIGHTS AS SHAREHOLDER. The Optionee shall have no rights
as a shareholder in respect to the Option Shares as to which the Option shall
not have been exercised and payment made as herein provided.
SECTION 9. ISSUANCE OF SHARES. As a condition of any sale or issuance
of Option Shares upon exercise of this Option, the Grantor may require such
agreements or undertakings, if any, as the Grantor may deem necessary or
advisable to assure compliance with any such applicable securities or other law
or regulation including, but not limited to, the following:
(a) a representation and warranty by the Optionee to the
Grantor, at the time this Option is exercised, that he is acquiring the Option
Shares to be issued to him for investment and not with a view to, or for sale in
connection with, the distribution of any such Option Shares; and
(b) a representation, warranty and/or agreement to be bound by
any legends that are, in the opinion of the Grantor, necessary or appropriate to
comply with the provisions of any securities law deemed by the Grantor to be
applicable to the issuance of the Option Shares and are endorsed upon the Option
Share certificates.
3
SECTION 10. MISCELLANEOUS PROVISIONS.
(a) NOTICES. Unless otherwise specifically provided herein,
all notices to be given hereunder shall be in writing and sent to the parties by
certified mail, return receipt requested, to each party's respective address as
set forth in the books and records of the Grantor, or to such other address as
such party shall give to the other party hereto by a notice given in accordance
with this Section. Except as otherwise provided in this Agreement, notice shall
be effective when deposited in the United States mails properly addressed and
postage prepaid. If such notice is sent other than by the United States mails,
such notice shall be effective when actually received by the party being
notified.
(b) ASSIGNMENT. This Agreement may not be assigned in whole or
in part by the Optionee.
(c) FURTHER ASSURANCES. The Optionee shall execute and deliver
such other instruments and do such other acts as may be necessary to effectuate
the intent and purposes of this Agreement.
(d) CAPTIONS. The captions contained in this Agreement are
inserted only as a matter of convenience and in no way define, limit, extend or
prescribe the scope of this Agreement or the intent of any of the provisions
hereof.
(e) COMPLETENESS AND MODIFICATION. This Agreement constitutes
the entire understanding between the parties hereto and supersedes all prior and
contemporaneous agreements or understandings among the parties hereto concerning
the grant by the Grantor to the Optionee of stock options and shall not be
terminated or amended except in writing executed by each of the parties hereto.
(f) WAIVER. The waiver of a breach of any term or condition of
this Agreement shall not be deemed to constitute the waiver of any other breach
or the same or any other term or condition.
(g) SEVERABILITY. The invalidity or unenforceability, in whole
or in part, of any covenant, promise or undertaking, or any section, subsection,
paragraph, sentence, clause, phrase or word or of any provisions of this
Agreement shall not affect the validity or enforceability of the remaining
portions thereof.
(h) CONSTRUCTION. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Florida without
regard to any conflict of law rule or principle that would result in the
application of the laws of another jurisdiction.
(i) BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the heirs, successors, estate and personal
representatives of the Optionee and the Grantor.
4
IN WITNESS WHEREOF, the Grantor has executed this Agreement for the
benefit of the Optionee as of the date first above written.
GRANTOR:
INTERAMERICAS COMMUNICATIONS
CORPORATION
By: /S/ XXXXXXX X. XXXX XX
--------------------------
Name: Xxxxxxx X. Xxxx XX
Title: Chief Financial Officer
OPTIONEE:
/S/ XXXXXXXX X. NORTHLAND
------------------------------
Xxxxxxxx X. Northland
5
EXHIBIT A
INTERAMERICAS COMMUNICATIONS CORPORATION
EXERCISE NOTICE
InterAmericas Communications Corporation
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxx 00000
SECTION 1. EXERCISE OF OPTION. Effective as of today, _____________,
199__, the undersigned ("Purchaser") hereby elects to purchase __________ shares
(the "Shares") of the Common Stock of InterAmericas Communications Corporation
(the "Company") under and pursuant to the Stock Option Agreement dated
_______________ (the "Option Agreement"). The purchase price for the Shares
shall be as set forth in the Option Agreement, as adjusted.
SECTION 2. DELIVERY OF PAYMENT. Purchaser herewith delivers to the
Company the full purchase price for the Shares (either in cash, certified or
official bank check or by money order).
SECTION 3. REPRESENTATIONS OF PURCHASER. Purchaser acknowledges that
Purchaser has received, read and understood the Option Agreement and agrees to
abide by and be bound by its terms and conditions.
SECTION 4. RIGHTS AS STOCKHOLDER. Until the issuance (as evidenced by
the appropriate entry on the books of the Company or of a duly authorized
transfer agent of the Company) of the stock certificate evidencing such Shares,
no right to vote or receive dividends or any other rights as a shareholder shall
exist with respect to the Optioned Stock, notwithstanding the exercise of the
Option. A share certificate for the number of Shares so acquired shall be issued
to the Optionee as soon as practicable after exercise of the Option.
SECTION 5. TAX CONSULTATION. Purchaser understands that Purchaser may
suffer adverse tax consequences as a result of Purchaser's purchase or
disposition of the Shares. Purchaser represents that Purchaser has consulted
with any tax consultants Purchaser deems advisable in connection with the
purchase or disposition of the Shares and that Purchaser is not relying on the
Company for any tax advice.
SECTION 6. ENTIRE AGREEMENT. The Option Agreement is incorporated
herein by reference. This Exercise Notice and the Option Agreement constitute
the entire agreement of the parties and supersede in their entirety all prior
undertakings and agreements of the Company and Optionee with respect to the
subject matter hereof.
Submitted by: Accepted by:
OPTIONEE: INTERAMERICAS COMMUNICATIONS
CORPORATION
By: By:
-------------------------- -------------------------
Name: Xxxxxxx X. Xxxx XX
Title:Chief Financial Officer
ADDRESS:
______________________________
6
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (the "Agreement") is dated as of the 9th
day of September, 1997 (the "Grant Date"), by and between INTERAMERICAS
COMMUNICATIONS CORPORATION (the "Grantor") and XXXXXXXX X. NORTHLAND (the
"Optionee").
W I T N E S S E T H:
WHEREAS, in consideration of prior services and services to be rendered
by the Optionee to the Grantor and certain promises made by the Optionee to the
Grantor, the Grantor desires to grant the Optionee an option to purchase ONE
HUNDRED THOUSAND (100,000) shares of Common Stock, par value $.001 per share
("Common Stock"), of the Grantor, upon the terms and subject to the conditions
hereinafter set forth.
NOW, THEREFORE, the Grantor hereby agrees, for the benefit of the
Optionee, as follows:
SECTION 1. GRANT OF OPTION. Subject to the provisions of this
Agreement, the Grantor hereby grants to the Optionee a non-qualified stock
option (the "Option") (subject to Section 7 hereof) to purchase from the Grantor
ONE HUNDRED THOUSAND (100,000) shares of Common Stock (after the exercise of the
Option and the acquisition of the shares, the "Option Shares"), at the price of
$8.00 per whole share (the "Option Price").
SECTION 2. EXERCISE OF OPTION.
(a) The Option may be exercised in whole or in part at any
time commencing on October 7, 1999 and ending on the tenth anniversary hereof
(the "Expiration Date"), unless sooner terminated as set forth herein, by the
Optionee's delivering to the Grantor a written notice specifying the number of
the Option Shares that the Optionee wishes to purchase pursuant to the Option
and tendering the Option Price multiplied by the number of such Option Shares.
The Option Price of any Option Shares purchased shall be paid in cash, by
certified or official bank check or by money order. The Optionee shall be deemed
to be a holder of the Option Shares immediately upon, and to the extent of, the
exercise of this Option as set forth above.
(b) NUMBER OF SHARES EXERCISABLE. Each exercise of an Option
hereunder shall reduce the total number of Option Shares that may thereafter be
purchased under this Option.
SECTION 3. SHARE CERTIFICATES. Upon each exercise of the right to
purchase Option Shares pursuant to this Option, the Grantor shall cause one or
more stock certificates evidencing the Optionee's ownership of the Option Shares
to be issued to the Optionee. A legend in substantially the form set forth below
shall be placed upon each stock certificate representing the Option Shares:
"The shares of stock represented by this certificate have not
been registered under the Securities Act of 1933, as amended
("Act"), or the securities laws of any state or other
jurisdiction, including the Florida Securities Act, and are
restricted securities as that term is defined under Rule 144
promulgated under the Act. These shares may not be sold,
transferred, pledged, hypothecated or otherwise disposed of in
any manner (a "Transfer") unless they are registered under the
Act and the securities laws of all applicable states and other
jurisdictions or unless the request for Transfer is
accompanied by a favorable opinion of counsel satisfactory to
the issuer, stating that such Transfer will not result in a
violation of such laws."
SECTION 4. ANTI-DILUTION PROVISIONS.
(a) ADJUSTMENT FOR RECAPITALIZATION. If the Grantor shall at
any time subdivide its outstanding shares of Common Stock by recapitalization,
reclassification or split-up thereof, or if the Grantor shall declare a stock
dividend or distribute shares of Common Stock to its stockholders, the number of
Option Shares then subject to this Option immediately prior to such subdivision
shall be proportionately increased and the exercise price shall be
proportionately decreased, and if the Grantor shall at any time combine the
outstanding shares of Common Stock by recapitalization, reclassification or
combination thereof, the number of option shares then subject to this Option
immediately prior to such combination shall be proportionately decreased and the
exercise price shall be proportionately increased. Any such adjustments pursuant
to this Section 4(a) shall be effective at the close of business on the
effective date of such subdivision or combination or if any adjustment is the
result of a stock dividend or distribution then the effective date for such
adjustment based thereon shall be the record date therefor.
(b) ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION, MERGER, ETC.
In case of any reorganization of the Grantor or in case the Grantor shall
consolidate with or merge into another corporation or convey all or
substantially all of its assets to another corporation, then, and in each such
case, the Optionee upon the exercise of this Option at any time after the
consummation of such reorganization, consolidation, merger or conveyance, shall
be entitled to receive, in lieu of the Option Shares issuable upon the exercise
of this Option prior to such consummation, the securities or property to which
the Optionee would have been entitled upon such consummation if the Optionee had
exercised this Option immediately prior thereto; in each such case, the terms of
this Option shall be applicable to the securities or property receivable upon
the exercise of this Option after such consummation.
(c) NO ADJUSTMENT FOR STOCK ISSUANCES. Except as otherwise
expressly provided herein, the issuance by the Grantor of shares of its capital
stock of any class, or securities convertible into shares of capital stock of
any class, either in connection with the direct sale or upon the exercise of
rights or warrants to subscribe therefor, or upon conversion of shares or
obligations of the Grantor convertible into such shares or other securities,
shall not affect this Option, and no adjustment by reason thereof shall be made
with respect to the number of or exercise price of Option Shares then subject to
this Option.
(d) NO EFFECT ON CORPORATE ACTIONS. Without limiting the
generality of the foregoing, the existence of this Option shall not affect in
any manner the right or power of the Grantor to approve or the Grantor to make,
authorize or consummate (i) any or all adjustments, recapitalizations,
reorganizations or other changes in the Grantor's capital structure or its
business; (ii) any merger or consolidation of the Grantor; (iii) any issuance by
the Grantor of debt securities, or preferred or preference stock that would rank
above the Option Shares subject to outstanding Options; (iv) the dissolution or
liquidation of the Grantor; (v) any sale, transfer or assignment of all or any
part of the assets or business of the Grantor or (vi) any other corporate act or
proceeding, whether of a similar character or otherwise.
(e) IMMEDIATE EXERCISE OF OPTION. Unless otherwise provided
herein, each outstanding Option shall become immediately fully exercisable upon
the following:
(i) If there occurs any transaction (which shall
include a series of transactions occurring within 60 days or occurring pursuant
to a plan), that has the result that stockholders of the Company immediately
before such transaction cease to own at least 51 percent of the voting stock of
the Company or of any entity that results from the participation of the Company
in a reorganization, consolidation, merger, liquidation or any other form of
corporate transaction;
(ii) If the stockholders of the Company shall approve
a plan of merger, consolidation, reorganization, liquidation or dissolution in
which the Company does not survive (unless the approved merger, consolidation,
reorganization, liquidation or dissolution is subsequently abandoned); or
(iii) If the stockholders of the Company shall
approve a plan for the sale, lease, exchange or other disposition of all or
substantially all the property and assets of the Company (unless such plan is
subsequently abandoned).
2
SECTION 5. NON-TRANSFERABILITY OF OPTION. This Option may not be
transferred in any manner other than by will or by the laws of descent or
distribution and may be exercised during the lifetime of the Optionee only by
the Optionee. The terms of this Option Agreement shall be binding upon the
executors, administrators, heirs, successors and assigns of the Optionee.
SECTION 6. TERMINATION OF OPTION. The Option shall terminate under the
following circumstances:
(a) The Option shall terminate on the Expiration Date;
(b) The Option shall terminate three months after the
Optionee's termination of employment or ceases to be a director of the Company;
(c) If the Optionee dies before the Option terminates pursuant
to Section 6(a) or 6(b), above, the Option shall terminate on the earlier of (i)
the date on which the Option would have lapsed had the Optionee lived and had
his employment status (I.E., whether the Optionee was a employed on the date of
his death or had previously terminated employment) remained unchanged; or (ii)
15 months after the date of the Optionee's death. Upon the Optionee's death, any
exercisable Options may be exercised by the Optionee's legal representative or
representatives, by the person or persons entitled to do so under the Optionee's
last will and testament, or, if the Optionee shall fail to make testamentary
disposition of the Option or shall die intestate, by the person or persons
entitled to receive said Option under the applicable laws of descent and
distribution.
SECTION 7. APPROVAL OF STOCK OPTION PLAN. The Company intends, at its
next Annual Meeting of Stockholders (the "Annual Meeting"), to submit for
stockholder consideration and approval its 1997 Stock Option Plan (the "Plan").
In the event that the Plan is approved by the Company's stockholders, then this
Option shall be deemed to be an Incentive Stock Option (within the meaning of
the Internal Revenue Code of 1986, as amended, (the "Code") have been granted
under and pursuant to the Plan. If, however, the Plan is not so approved at the
Annual Meeting, then this Option shall be deemed to be a non-qualified stock
option (which means any option which is not an Incentive Stock Option under the
Code).
SECTION 8. NO RIGHTS AS SHAREHOLDER. The Optionee shall have no rights
as a shareholder in respect to the Option Shares as to which the Option shall
not have been exercised and payment made as herein provided.
SECTION 9. ISSUANCE OF SHARES. As a condition of any sale or issuance
of Option Shares upon exercise of this Option, the Grantor may require such
agreements or undertakings, if any, as the Grantor may deem necessary or
advisable to assure compliance with any such applicable securities or other law
or regulation including, but not limited to, the following:
(a) a representation and warranty by the Optionee to the
Grantor, at the time this Option is exercised, that he is acquiring the Option
Shares to be issued to him for investment and not with a view to, or for sale in
connection with, the distribution of any such Option Shares; and
(b) a representation, warranty and/or agreement to be bound by
any legends that are, in the opinion of the Grantor, necessary or appropriate to
comply with the provisions of any securities law deemed by the Grantor to be
applicable to the issuance of the Option Shares and are endorsed upon the Option
Share certificates.
3
SECTION 10. MISCELLANEOUS PROVISIONS.
(a) NOTICES. Unless otherwise specifically provided herein,
all notices to be given hereunder shall be in writing and sent to the parties by
certified mail, return receipt requested, to each party's respective address as
set forth in the books and records of the Grantor, or to such other address as
such party shall give to the other party hereto by a notice given in accordance
with this Section. Except as otherwise provided in this Agreement, notice shall
be effective when deposited in the United States mails properly addressed and
postage prepaid. If such notice is sent other than by the United States mails,
such notice shall be effective when actually received by the party being
notified.
(b) ASSIGNMENT. This Agreement may not be assigned in whole or
in part by the Optionee.
(c) FURTHER ASSURANCES. The Optionee shall execute and deliver
such other instruments and do such other acts as may be necessary to effectuate
the intent and purposes of this Agreement.
(d) CAPTIONS. The captions contained in this Agreement are
inserted only as a matter of convenience and in no way define, limit, extend or
prescribe the scope of this Agreement or the intent of any of the provisions
hereof.
(e) COMPLETENESS AND MODIFICATION. This Agreement constitutes
the entire understanding between the parties hereto and supersedes all prior and
contemporaneous agreements or understandings among the parties hereto concerning
the grant by the Grantor to the Optionee of stock options and shall not be
terminated or amended except in writing executed by each of the parties hereto.
(f) WAIVER. The waiver of a breach of any term or condition of
this Agreement shall not be deemed to constitute the waiver of any other breach
or the same or any other term or condition.
(g) SEVERABILITY. The invalidity or unenforceability, in whole
or in part, of any covenant, promise or undertaking, or any section, subsection,
paragraph, sentence, clause, phrase or word or of any provisions of this
Agreement shall not affect the validity or enforceability of the remaining
portions thereof.
(h) CONSTRUCTION. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Florida without
regard to any conflict of law rule or principle that would result in the
application of the laws of another jurisdiction.
(i) BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the heirs, successors, estate and personal
representatives of the Optionee and the Grantor.
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IN WITNESS WHEREOF, the Grantor has executed this Agreement for the
benefit of the Optionee as of the date first above written.
GRANTOR:
INTERAMERICAS COMMUNICATIONS
CORPORATION
By:/S/ XXXXXXX X. XXXX XX
---------------------------
Name: Xxxxxxx X. Xxxx XX
Title: Chief Financial Officer
OPTIONEE:
/S/ XXXXXXXX X. NORTHLAND
------------------------------
Xxxxxxxx X. Northland
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EXHIBIT A
INTERAMERICAS COMMUNICATIONS CORPORATION
EXERCISE NOTICE
InterAmericas Communications Corporation
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxx 00000
SECTION 1. EXERCISE OF OPTION. Effective as of today, _____________,
199__, the undersigned ("Purchaser") hereby elects to purchase __________ shares
(the "Shares") of the Common Stock of InterAmericas Communications Corporation
(the "Company") under and pursuant to the Stock Option Agreement dated
_______________ (the "Option Agreement"). The purchase price for the Shares
shall be as set forth in the Option Agreement, as adjusted.
SECTION 2. DELIVERY OF PAYMENT. Purchaser herewith delivers to the
Company the full purchase price for the Shares (either in cash, certified or
official bank check or by money order).
SECTION 3. REPRESENTATIONS OF PURCHASER. Purchaser acknowledges that
Purchaser has received, read and understood the Option Agreement and agrees to
abide by and be bound by its terms and conditions.
SECTION 4. RIGHTS AS STOCKHOLDER. Until the issuance (as evidenced by
the appropriate entry on the books of the Company or of a duly authorized
transfer agent of the Company) of the stock certificate evidencing such Shares,
no right to vote or receive dividends or any other rights as a shareholder shall
exist with respect to the Optioned Stock, notwithstanding the exercise of the
Option. A share certificate for the number of Shares so acquired shall be issued
to the Optionee as soon as practicable after exercise of the Option.
SECTION 5. TAX CONSULTATION. Purchaser understands that Purchaser may
suffer adverse tax consequences as a result of Purchaser's purchase or
disposition of the Shares. Purchaser represents that Purchaser has consulted
with any tax consultants Purchaser deems advisable in connection with the
purchase or disposition of the Shares and that Purchaser is not relying on the
Company for any tax advice.
SECTION 6. ENTIRE AGREEMENT. The Option Agreement is incorporated
herein by reference. This Exercise Notice and the Option Agreement constitute
the entire agreement of the parties and supersede in their entirety all prior
undertakings and agreements of the Company and Optionee with respect to the
subject matter hereof.
Submitted by: Accepted by:
OPTIONEE: INTERAMERICAS COMMUNICATIONS
CORPORATION
By: By:
-------------------------- -------------------------
Name: Xxxxxxx X. Xxxx XX
Title:Chief Financial Officer
ADDRESS:
_____________________________
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