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EXHIBIT 10.7
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "AGREEMENT"), entered into in the city of
Buenos Aires, on June 30, 2000, by and among AT&T LATIN AMERICA CORP., a company
organized under the laws of the State of Delaware, United States of America
("AT&T LATIN AMERICA"), XX. XXXXXXXXX XXXXXXX XXXXX (the "EXECUTIVE"), marital
status married, holder of the DNI number 00.000.000, domiciled at Xxxxxxx xxx
Xxxxxxxxxx 0000, Xxxx 0, xxxx xx Xxxxxx Aires, and KEYTECH X. X. (the
"COMPANY"), domiciled at 00 xx Xxxx 000, 0xx. xxxxx, xxxx xx Xxxxxx Aires,
represented by Xx. Xxxxx X. Xxxxx, nationality Argentine, holder of the DNI
00.000.000, acting in the capacity of attorney-in-fact.
WHEREAS, pursuant to the Stock Purchase Agreement, dated as of
February 23, 2000, among AT&T Latin America, the Executive and others (the
"STOCK PURCHASE AGREEMENT"), the parties thereto have agreed to enter into the
business combination transaction described therein; and
WHEREAS, the Executive has served as the Chief Executive Officer
("CEO") of the Company; and
WHEREAS, AT&T Latin America and the Company desire that, following the
"CLOSING DATE" (as defined in the Stock Purchase Agreement) the Executive serve
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as the Company's CEO, and the Executive desires to so serve, in each case upon
the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual covenants herein
contained, AT&T Latin America, the Company and the Executive hereby agree as
follows:
1. EMPLOYMENT PERIOD.
(a) AGREEMENT TO EMPLOY. The Company hereby agrees to employ the
Executive, and the Executive hereby accepts employment by the Company, pursuant
to the terms and conditions set forth in this Agreement. The Executive
represents that (i) he is entering into this Agreement voluntarily and that his
employment hereunder and compliance with the terms and conditions hereof will
not conflict with or result in the breach by him of any agreement to which he is
a party or by which he may be bound, (ii) he has not, and in connection with his
employment with the Company will not, violate any non-solicitation or other
similar covenant or agreement by which he is or may be bound and (iii) in
connection with his employment with the Company he will not use any confidential
or proprietary information he may have obtained in connection with employment
with any prior employer other than the Company. The period during which the
Executive is employed pursuant to this Agreement shall be referred to as the
"EMPLOYMENT PERIOD".
2. POSITION AND DUTIES.
(a) During the Employment Period, the Executive shall be employed as
CEO of the Company and shall have such duties and responsibilities as are
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customarily assigned to individuals serving in such position and such other
duties consistent with Executive's title and position as the Board of Directors
of the Company (the "BOARD") or the Chief Executive Officer of AT&T Latin
America (or his designees) specifies from time to time. The Executive shall be
assigned no duties or responsibilities that are materially inconsistent with, or
that materially impair his ability to discharge, the foregoing duties and
responsibilities. During the Employment Period, and excluding any periods of
vacation, holiday, personal leave and sick leave to which the Executive is
entitled, the Executive shall devote the Executive's full business time,
attention and ability to the business and affairs of the Company and shall use
the Executive's reasonable best efforts to carry out the Executive's
responsibilities faithfully and efficiently in a professional manner. It shall
not be considered a violation of the foregoing for the Executive to (i) serve on
corporate or civic boards reasonably approved by the Company or on charitable
boards or committees and (ii) manage his or his family's personal investments,
in each case so long as such activities do not substantially interfere with the
performance of the Executive's responsibilities as an employee of the Company in
accordance with this Agreement, do not violate the Company's rules and policies
(or present a material conflict of interest with the Company) and do not
otherwise constitute a violation of Section 7 (relating to non-competition) of
this Agreement. The Executive shall comply with the rules and policies of the
Company that are generally applicable to the Company's senior executives.
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3. COMPENSATION.
(a) BASE SALARY. During the Employment Period, the Executive shall
receive an annual base salary of United States ("US") $300,000, payable pursuant
to the Company's normal payroll practices, but no less frequently than US
$25,000 monthly ("ANNUAL BASE SALARY"). Commencing in 2001, the Annual Base
Salary then in effect shall be reviewed by the Board and may be increased by
such amount as the Board in its sole discretion shall determine.
(b) ANNUAL BONUS. During the Employment Period, the Executive shall
have an annual incentive bonus opportunity in an amount equal to 50% of his
Annual Base Salary, which shall be payable if the Executive and the Company each
achieve the pre-established performance objectives established from time to time
by the Board for the applicable period. The Board's determination with respect
to the payment and amount of the annual bonus shall be final and conclusive. Any
annual bonus determined by the Board shall be paid at such time as bonuses are
generally paid to the Company's senior executives.
(c) SUELDO ANUAL COMPLEMENTARIO. Each year the Executive shall be
entitled to receive a complementary annual payment as required by Argentine
Labor Laws (the "SUELDO ANUAL COMPLEMENTARIO") in an amount equal to one month
of base salary. The Executive acknowledges and agrees that the annual bonus, the
Stock Options (as described below) and the Retention Award (as described below)
shall not be included in the computation of the "Sueldo Anual Complementario".
(d) RETENTION AWARD AND STOCK OPTION GRANT.
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(i) RETENTION AWARD. The Executive shall be paid US $500,000 on the
first anniversary of the Closing Date (the "RETENTION AWARD") by wire
transfer to the account of the Executive with the Chase Manhattan Bank, New
York, NY, ABA #021-00021, A/C Xxxxxxxxx, Xxxxxx & Xxxxxxxx Sec., Xxxxxxxx
Division, subject (except as otherwise provided in this Agreement) to the
Executive's continuous employment as the Company's CEO through such date.
(ii) STOCK OPTION GRANT. As soon as practicable after the Closing
Date, the Company shall recommend to the Board of Directors of AT&T Latin
America that the Executive be issued stock options representing the right
to acquire 100,000 shares of Class A Common Stock of AT&T Latin America
(the "STOCK OPTIONS"). The Stock Options shall have an exercise price of US
$21.21 per share. The Stock Options shall vest and become exercisable with
respect to one-half (50%) of the shares subject to the Stock Options on the
second anniversary of the Closing Date, twenty-five percent (25%) upon the
third anniversary of the Closing Date, and the final twenty-five percent
(25%) on the fourth anniversary of the Closing Date. The Stock Options
shall be granted pursuant to a stock incentive plan to be adopted by AT&T
Latin America and shall be subject to the terms and conditions of the plan
and the related stock option agreement to be entered into between the
Executive and AT&T Latin America. Notwithstanding the foregoing, in the
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event any person or group of persons acting together (other than AT&T Latin
America or any of its affiliates) acquires in a transaction or a series of
related transactions more than 50% of the combined voting power of the
Company's then outstanding securities, the Stock Options shall immediately
vest and become exercisable.
(e) BENEFITS. The Executive shall be entitled to participate in all
benefit plans and programs that the Company may establish from time to time for
its Argentine employees, subject to the terms and conditions of such plans or
programs.
(f) EXPENSES. During the Employment Period, the Executive shall be
entitled to receive prompt reimbursement for all reasonable business expenses
incurred by the Executive in carrying out the Executive's duties under this
Agreement in accordance with the policies of the Company, provided that the
Executive complies with the policies, practices and procedures of the Company
for submission of expense reports, receipts, or similar documentation of such
expenses.
(g) VACATION. During the Employment Period, the Executive shall be
entitled to up to four (4) weeks paid vacation each year, consistent with the
Company's policy for its senior executives.
4. TERMINATION OF EMPLOYMENT.
(a) DEATH OR DISABILITY. The Executive's employment shall terminate
automatically upon the Executive's death or upon a determination by the Board to
terminate the Executive's employment as a result of his Disability during the
Employment Period. For purposes of this Agreement, "DISABILITY" shall mean a
physical or mental disability that prevents or is reasonably expected to prevent
the performance by the Executive of his duties hereunder for a continuous period
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of 90 days or longer or for 120 days or more in any 12-month period. The
determination of Executive's Disability shall (i) be made by an independent
physician who is reasonably acceptable to the Company and Executive (or his
representative), (ii) be final and binding on the parties hereto and (iii) be
made taking into account such competent medical evidence as shall be presented
to such independent physician by Executive and/or the Company or by any
physician or group of physicians or other competent medical experts employed by
Executive and/or the Company to advise such independent physician.
(b) BY THE COMPANY. The Company may terminate the Executive's
employment during the Employment Period for Cause or without Cause. For purposes
of this Agreement, "CAUSE" shall mean the Executive's (i) engaging in fraudulent
or dishonest conduct (as determined by a finding, order, judgement or decree in
any court or administrative agency of competent jurisdiction, in any action or
proceeding, whether civil, criminal, administrative or investigative); (ii)
conviction of, or entering a plea of nolo contendere to, a felony criminal
offense or comparable crime in any jurisdiction that uses a different
nomenclature; (iii) willful refusal to perform his material employment-related
duties or responsibilities or intentionally and knowingly engaging in any
activity that is in material conflict with or is materially adverse to the
business interests of the Company, its affiliates or their respective
businesses; (iv) gross negligence in the performance of his material
employment-related duties or responsibilities; or (v) breach of any material
provision of the employment agreement (in the case of (iii), (iv) and (v), that
is not cured by the Executive within 30 days of receipt of prior written notice
from the Company setting forth in reasonable detail the circumstances giving
rise to such Cause). A termination for Cause shall include a determination by
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the Board no later than six months following the termination of the Employment
Period that circumstances existed during the Employment Period that would have
justified a termination by the Company for Cause.
(c) BY THE EXECUTIVE. The Executive may terminate employment with or
without Good Reason. For purposes of this Agreement, "GOOD REASON" means (i) a
material diminution of the Executive's duties or responsibilities hereunder; or
(ii) a material breach by the Company of any provision of the Agreement, in each
case that is not cured by the Company within 30 days of receipt of prior written
notice from the Executive setting forth in reasonable detail the circumstances
giving rise to such Good Reason.
(d) TERMINATION PROCEDURES. Any termination of the Executive's
employment by the Company or by the Executive shall be communicated by Notice of
Termination to the other party hereto given in accordance with this Agreement.
For purposes of this Agreement, a "NOTICE OF TERMINATION" means a written notice
which (i) indicates the specific termination provision in this Agreement relied
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upon, (ii) to the extent applicable, sets forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated and (iii) if the Date of Termination
(as defined below) is other than the date of receipt of such notice, specifies
the termination date. For purposes of this Agreement, "DATE OF TERMINATION"
means (i) if the Executive's employment is terminated by the Company or by the
Executive (other than for death or Disability), 90 days following the date of
receipt of the Notice of Termination and (ii) if the Executive's employment is
terminated by reason of death or Disability, the Date of Termination shall be
the date of death of the Executive or, in the case of Disability, the date of
the determination of the Executive's Disability, provided that the Company may
pay the Executive (at the rate of his Annual Base Salary as then in effect) in
lieu of part or all of such notice period.
(e) EFFECT OF TERMINATION. Effective as of any Date of Termination,
or, if earlier, as of any date specified by the Company at or following the
delivery of a Notice of Termination, the Executive shall resign, in writing,
from all Board memberships and other positions then held by him with the Company
and its affiliates.
5. OBLIGATIONS OF THE COMPANY UPON TERMINATION.
(a) GENERAL. If, during the Employment Period, the Executive's
employment terminates for any reason, the Executive (or his estate, beneficiary
or legal representative) shall be entitled to receive (i) any earned or accrued
but unpaid Annual Base Salary through the Date of Termination, (ii) in the case
of any termination of employment other than for Cause, any earned but unpaid
annual bonus with respect to any fiscal year of the Company ending prior to the
Date of Termination and (iii) all amounts payable and benefits accrued
(including, but not limited to, any earned or accrued unpaid "SUELDO ANUAL
COMPLEMENTARIO" and a prorated portion of vacation not taken by the Executive)
under any otherwise applicable plan, policy, program or practice of the Company
or its affiliates (other than relating to severance) in which Executive was a
participant during his employment with Company in accordance with the terms
thereof.
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(b) OTHER THAN FOR CAUSE, DEATH OR DISABILITY; GOOD REASON. If,
during the Employment Period, the Company terminates the Executive's employment
other than for Cause, death or Disability, or the Executive terminates
employment for Good Reason, the Company shall, subject to Section 13 (relating
to release), in addition to the amounts provided in paragraph (a) above, pay to
the Executive (or his estate, beneficiary or legal representative) (i) an amount
equal to the Annual Base Salary then in effect (the "SEVERANCE PAYMENT") and
(ii) notwithstanding anything in this Agreement to the contrary, the Retention
Award in one lump-sum payment as soon as practicable following the Date of
Termination. The Severance Payment shall be paid to the executive in equal
monthly installments and for a period commencing on the Date of Termination and
ending on the first anniversary thereof. The Severance Payment shall be reduced
by (and shall not be in addition to) any severance or any similar payment
required to be made to the Executive under Argentine law or any other severance
plan or program of the Company.
6. INDEMNIFICATION; D&O INSURANCE.
(a) The Company agrees that if, during or after the Employment
Period, the Executive is made a party, or is threatened to be made a party, to
any action, suit or proceeding, whether civil, criminal, administrative or
investigative (a "PROCEEDING"), by reason of the fact that he is or was a
director, officer or employee of the Company or is or was serving at the request
of the Company as a director, officer, member, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, including
service with respect to employee benefit plans, whether or not the basis of such
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Proceeding is the Executive's alleged action in an official capacity while
serving as a director, officer, member, employee or agent, the Executive shall
be indemnified and held harmless by the Company to the fullest extent legally
permitted or authorized by the Company's certificate of incorporation or bylaws
or resolutions of the Company's Board of Directors, against all cost, expense,
liability and loss (including, without limitation, attorney's fees, judgments,
fines, or other liabilities or penalties and amounts paid or to be paid in
settlement) reasonably incurred or suffered by the Executive in connection
therewith, and such indemnification shall continue as to the Executive even if
he has ceased to be a director, member, employee or agent of the Company or
other entity and shall inure to the benefit of the Executive's heirs, executors
and administrators. The Company shall advance to the Executive all reasonable
costs and expenses incurred by him in connection with a Proceeding within 20
calendar days after receipt by the Company of a written request for such
advance. Such request shall include an undertaking by the Executive to repay the
amount of such advance if it shall ultimately be determined that he is not
entitled to be indemnified against such costs and expenses.
(b) Neither the failure of the Company (including its Board,
independent legal counsel or stockholders) to have made a determination prior to
the commencement of any proceeding concerning payment of amounts claimed by the
Executive under paragraph (a) of this Section that indemnification of the
Executive is proper because he has met the applicable standard of conduct, nor a
determination by the Company (including its Board, independent legal counsel or
stockholders) that the Executive has not met such applicable standard of
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conduct, shall create a presumption that the Executive has not met the
applicable standard of conduct.
(c) The Company agrees to continue and maintain a directors' and
officers' liability insurance policy covering the Executive to the extent the
Company provides such coverage for its other executive officers.
7. COVENANT NOT TO COMPETE. The Executive acknowledges and agrees
that the Company has a legitimate interest in being protected from the
Executive's being employed in a position of management by an entity that
competes with the Company. The Executive and the Company have considered
carefully how best to protect the legitimate interests of the Company without
unreasonably restricting the economic interests of the Executive, and hereby
agree to the following restrictions, in addition to those contained in Section
8, as the most reasonable and equitable under the circumstances. During the
Employment Period and for a period of twelve (12) months after the Executive's
termination of employment with the Company for any reason (the "RESTRICTION
PERIOD"), without the prior written consent of the Company, the Executive shall
not, and shall cause any entity owned or controlled by the Executive not to,
directly or indirectly:
(a) own, manage, operate, join, control, lend money or render
financial or other assistance to, or participate in as an officer, employee,
director, partner, stockholder, consultant or otherwise in any person that owns
or operates a "Telecommunications Network" (as defined in the Non-Competition
and Cooperation Agreement referred to in the Stock Purchase Agreement (the
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"NON-COMPETE")) of the types described in the "Company Business Description" (as
defined in the Non-Compete) or provides services of the types described in the
Company Business Description, in each case within the "Geographic Area" (as
defined in the Non-Compete), PROVIDED that the Executive and Telepuerto
Internacional Buenos Aires S.A. may provide (i) transport for carrier services
exclusively via fixed or transportable earthstation satellite, services for
domestic and international transmission of television broadcasting, cable TV,
and videoconferencing, audio, data and internet signals and teleport services to
other carriers, (ii) internet access services to dial up consumers, (iii)
provide internet access transport to other ISPs to the Argentine NAP and/or to
the international internet backbone excluding high speed internet access to
business customers, and (iv) web hosting and telehousing services;
(b) Solicit, or cause or encourage any other person to solicit (i)
any employee of the Company to leave his or her employ to enter into employment
with any organization or (ii) any customer or business of the Company;
(c) Apply for or procure any licenses or permits that are the same as
or similar to the licenses or permits set forth in the Company Business
Description, except for licenses necessary to provide the services permitted
under paragraph (a) of this Section;
(d) Apply for any domestic local telephony license or
domestic/international long distance license as per the Licenses and
Authorizations section in the Company Business Description;
(e) Design, construct or commercially operate any telecommunications
network (fiber, copper, coaxial cable, fixed wireless or microwave) similar to
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the telecommunications network mentioned in the Company Business Description in
the Future Network section
PROVIDED, HOWEVER, that for the purposes of this Section, ownership
of securities having no more than five percent of the outstanding voting power
of any entity whose securities are listed on any U.S. or Argentine national
securities exchange or trade actively in the U.S. or Argentine over-the-counter
market shall not be deemed a violation of this Section so long as the owner of
such securities has no other connection or relationship with any such entity.
For the avoidance of doubt, the foregoing limitations shall apply regardless of
the technology used to provide the services referred to in this Section.
Notwithstanding the foregoing, nothing in this Agreement shall be construed to
prohibit the Executive from rendering services to, acquiring an economic
interest in or otherwise providing assistance to the Company (as defined in the
Non-Compete), Buyer (as defined in the Non-Compete) or any of their respective
Affiliates (as defined in the Non-Compete).
8. CONFIDENTIAL INFORMATION. The Executive acknowledges and agrees
that all material information that is not publicly available or generally known
in the industry concerning the Company's business including, without limitation,
information relating to its products, customer lists, pricing, trade secrets,
patents, business methods, and cost data, business plans and strategies
(collectively, the "CONFIDENTIAL INFORMATION") is and shall remain the property
of the Company. The Executive recognizes and agrees that all of the Confidential
Information, whether developed by the Executive or made available to the
Executive, other than information that is generally known to the public or
generally known in the industry, is a unique asset of the business of the
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company, the disclosure of which would be damaging to the Company. Accordingly,
the Executive agrees to hold such Confidential Information in a fiduciary
capacity for the benefit of the Company. The Executive agrees that he will not
at any time during or within 10 years after the Executive's employment with the
Company for any reason, directly or indirectly, disclose to any person any
Confidential Information the disclosure of which could harm the Company, other
than information that is already known to the public or generally know in the
industry, except as may be required in the ordinary course of business of the
Company or as may be required by law. Promptly upon the termination of this
Agreement for any reason, the Executive agrees to return to the Company any and
all documents, memoranda, drawings, notes and other papers and items (including
all copies thereof, whether electronic or otherwise) embodying any Confidential
Information of the Company which are in the possession or control of the
Executive. Information concerning the Company's business that becomes public as
a result of the Executive's breach of this Section shall be treated as
Confidential Information under this Section. For purposes of this Section and
Sections 9, 10 and 11 of this Agreement, the term "Company" shall include the
Company and each of its affiliates.
9. BREACH OF CERTAIN PROVISIONS. The Executive acknowledges that a
violation on the Executive's part of any of the covenants contained in Sections
7 or 8 of this Agreement would cause immeasurable and irreparable damage to the
Company. The Executive represents that his economic means and circumstances are
such that the provisions of this Agreement, including the non-competition,
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non-solicitation of employees, confidentiality and Company property provisions,
will not prevent him from providing for himself and his family on a basis
satisfactory to him and them. Accordingly, the Executive agrees that the Company
shall be entitled to injunctive relief in any court of competent jurisdiction
for any actual or threatened violation of any such covenant in addition to any
other remedies it may have. The Executive agrees that in the event that any
arbitrator or court of competent jurisdiction shall finally hold that any
provision of Sections 7 or 8 hereof is void or constitutes an unreasonable
restriction against the Executive, the provisions of such Section shall not be
rendered void but shall apply to such extent as such arbitrator or court may
determine constitutes a reasonable restriction under the circumstances. Any
breach by the Executive of the provisions of Sections 7 or 8 of this Agreement
shall relieve the Company of all obligations to any further payments to the
Executive pursuant to this Agreement (including under all Company equity award
grants pursuant to Section 3) or otherwise under any incentive or equity awards
made by the Company and, in the case of a breach of Section 7 of this Agreement,
shall entitle the Company to repayment from the Executive, upon demand, of all
amounts previously paid to the Executive following or in the six months
preceding such breach with respect to previously granted equity awards (i.e., in
the case of any stock options, the net gain realized by the Executive with
respect thereto during such period) and of the Retention Award. These remedies
are in addition to any other remedies the Company may have with respect to any
such breach.
10. PROPERTY OF THE COMPANY. The Executive acknowledges that from
time to time in the course of providing services pursuant to this Agreement, he
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shall have the opportunity to inspect and use certain property, both tangible
and intangible, of the Company, including Confidential Information. The
Executive hereby agrees that such property shall remain the exclusive property
of the Company and shall be returned to the Company upon the Executive's
termination of employment.
11. INTANGIBLE ASSETS. The Executive shall not at any time have or
claim any right, title or interest in any trade name, trademark, copyright, or
other similar rights belonging to or used by the Company and shall not have or
claim any rights, title or interest in any material or matter of any sort
prepared for or used in connection with the business of the Company or promotion
of the Company, whether produced, prepared or published in whole or in part by
the Executive.
12. LITIGATION; COOPERATION. If this Agreement is terminated by the
Company other than for Cause or by the Executive for Good Reason, in
consideration of the payments to be made to the Executive by the Company
pursuant to Section 5(b) of this Agreement, the Executive agrees, during the
period that the Company is actually making such payments to the Executive, to
provide to the Company and its affiliates truthful and complete cooperation in
all regulatory and litigation matters relating to the Company and the
Executive's employment by the Company, including, but not limited to, the
Executive's appearance at interviews and depositions at reasonable times (taking
into account the Executive's then employment and place of residence) whether or
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not such matters have been commenced at the time of such termination, and to
provide to counsel to the Company and its affiliates, upon request, all
documents in the Executive's possession or under his control relating to such
regulatory and litigation matters, all at no additional compensation to the
Executive; provided, however, that the Company will reimburse the Executive for
(a) all reasonable expenses, including travel, lodging, meals and attorneys'
fees and (b) any salary forfeited by the Executive or vacation time consumed by
him during time spent by the Executive, in connection with the foregoing.
13. RELEASE. In consideration of the payments to be made to the
Executive pursuant to Section 5(b) of this Agreement and as a condition to the
payment thereof, the Executive acknowledges that all such payments, if made in
accordance with the terms of this Agreement, shall constitute complete
satisfaction of all obligations owed by the Company to the Executive hereunder
and shall further constitute the Executive's sole remedy against the Company
regarding the Executive's employment hereunder. The parties hereby agree that if
this Section becomes applicable they will execute a mutually acceptable general
release to reflect the provisions of this Section.
14. SUCCESSORS
(a) This Agreement is personal to the Executive and, without the
prior written consent of the Company, shall not be assignable by the Executive
except by will or the laws of descent and distribution. This Agreement shall
inure to the benefit of and be enforceable by the Executive's legal
representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns, provided that the Company may not
assign this Agreement except in connection with the assignment or disposition of
all or substantially all of the assets or stock of the Company.
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(c) The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume the
liabilities, obligations and duties of the Company and agree to perform this
Agreement in the same manner and to the same extent that the Company would have
been required to perform it if no such succession had taken place, consistent
with the provisions of paragraph (a) of this Section. Except as specifically
provided in this Agreement, "Company" shall mean both the Company as defined
above and any such successor that assumes and agrees to perform this Agreement,
by operation of law or otherwise.
15. MISCELLANEOUS.
(a) Any dispute between the parties to this Agreement arising from
this Agreement shall be submitted to the courts of the city of Buenos Aires,
Argentina. This Agreement shall be governed by, and construed in accordance
with, the laws of the Republic of Argentina. Notwithstanding the foregoing, any
dispute relating to Stock Options shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without reference to its
conflict of law rules and shall be subject to the jurisdiction of the courts of
the State of Delaware.
(b) All notices and other communications under this Agreement shall
be in writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
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IF TO THE EXECUTIVE, to
Xxxxxxxxx Xxxxxxx Xxxxx
Xx. Xxxxxxxxxx 0000
Piso 6, CP (1425)
Buenos Aires, Argentina
With copies to:
Bruchou, Xxxxxxxxx Xxxxxx & Xxxxxxxx
Reconquista 336
Capital Federal (1335)
Argentina
IF TO THE COMPANY, to
its General Counsel
with copies to:
AT&T Corp.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: Executive Vice-President, Human Resources
and
AT&T Latin America Corp.
0000 Xxxxx xx Xxxx Xxxx.
Xxxxx Xxxxxx, XX 00000
Attention: Chief Executive Officer
or to such other address as either party furnishes to the other in writing in
accordance with this paragraph (b) of Section. Notices and communications shall
be effective when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement. If any provision of this Agreement shall be held invalid or
unenforceable in part, the remaining portion of such provision, together with
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all other provisions of this Agreement, shall remain valid and enforceable and
continue in full force and effect to the fullest extent consistent with law.
(d) Notwithstanding any other provision of this Agreement, the
Company may withhold from amounts payable under this Agreement, and shall pay
over to the appropriate authorities in a manner consistent with all applicable
requirements, all United States, Argentine and any other applicable
jurisdiction's federal, state and local taxes that are required to be withheld
by applicable laws or regulations.
(e) The Executive's or the Company's failure to insist upon strict
compliance with any provision of, or to assert any right under, this Agreement
shall not be deemed to be a waiver of such provision or right or of any other
provision of or right under this Agreement. This Agreement may not be amended or
modified except by a written agreement executed by the parties hereto or their
respective successors and legal representatives.
(f) Except as provided herein, the Executive and the Company
acknowledge that this Agreement constitutes the entire agreement between the
parties and supersedes any prior agreement or understanding between the
Executive and the Company concerning the subject matter hereof ("PRIOR
AGREEMENTS"). The Executive agrees that any and all Prior Agreements shall
terminate as of the Closing Date, and the Executive explicitly waives any rights
to payments or benefits under the Prior Agreements, other than any earned or
accrued base salary, bonus or other amounts payable or benefits owed and unpaid
prior to the Closing Date. The Executive shall not be entitled to participate in
any severance plans or programs of the Company during the Employment Period.
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(g) Except as provided herein, the original and controlling version
of this Agreement shall be the version using the English language. All
translations of this Agreement into other languages shall be for the convenience
of the parties only, and shall not control the meaning or application of this
Agreement. All notices and other communications required or permitted by this
Agreement shall be in English, and the interpretation and application of such
notices and other communications shall be based solely upon the English version
thereof.
(h) This Agreement shall only be effective as of the Closing Date.
This Agreement shall be of no force and effect if the Closing (as defined in the
Stock Purchase Agreement) does not occur and shall automatically expire if the
Stock Purchase Agreement is terminated.
(i) This Agreement may be executed in several counterparts, each of
which shall be deemed an original, and said counterparts shall constitute but
one and the same instrument.
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IN WITNESS HEREOF, the Executive has hereunto set the
Executive's hand and, pursuant to the authorization of their Board of Directors,
the Company and AT&T Latin America have, caused this Agreement to be executed in
its name on its behalf, all as of the day and year first above written.
AT&T Latin America
By: /s/ Xxxx X. Xxxxx
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Title: President--AT&T International Ventures
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President--AT&T Latin America Corp.
Keytech, LD
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Title:
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Executive
/s/ Xxxxxxxxx Xxxxx
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