EMPLOYMENT AGREEMENT
AGREEMENT, executed on this 16th day of October, 1996 and effective
as of August 1, 1996 between Telscape International, a Texas corporation (the
"Company"), and Xxxx Xxxxx, an individual resident of Texas.(the "Employee").
W I T N E S S E T H:
WHEREAS, the Employee is a highly valued and trusted employee of the
Company, and
WHEREAS, the Company desires to offer the Employee continued
employment upon the terms and conditions set forth herein and the Employee
desires to accept such employment; and
NOW THEREFORE in consideration of the mutual benefits to be derived
from this Agreement, the Company and the Employee hereby agree as follows:
1. Term of Employment; Office and Duties.
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(a) During the Period of Employment (as hereinafter
defined), the Company, shall employ the Employee as a senior executive of the
Company with the title of Chief Financial Officer, with the duties and
responsibilities prescribed for such offices in the Bylaws of the Company and
such subsidiaries, and with such additional duties and responsibilities
consistent with such positions as may from time to time be assigned to the
Employee by the Chief Executive officer of the Company. Employee agrees to
perform such duties and discharge such responsibilities in accordance with the
terms of this Agreement.
(b) During the Period of Employment, the Employee
shall devote substantially all of his working time and attention to the
business and affairs of the Company and its subsidiaries, other than during
vacations (which shall be of a duration that is consistent with the policies
of the Company) and periods of illness or incapacity.
2. Term; Period of Employment
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The period of employment hereunder (the "Period of Employment")
shall commence on the date hereof (the "Effective Date") and, unless sooner
terminated pursuant to this Agreement, shall terminate on the third anniversay
of the Effective Date. The Period of Employment may be extended by the written
agreement of the Company and Employee.
3. Compensation and Benefits. For all services rendered by the
Employee in any capacity
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during the Period of Employment, including without limitation, services as an
executive officer, director, or member of any committee of the Company or any
subsidiary, affiliate or division thereof, the Employee shall be compensated
as follows:
(a) Base Salary. The Company shall pay the
Employee a fixed salary ("Base
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Salary") at a rate of Ninety-five Thousand Dollars (US $95,000) per year. The
Board of Directors will periodically review, the Employee's Base Salary with a
view to increasing such Base Salary if, in the judgment of the Board of
Directors, the earnings of the Company or the services of the Employee merit
such an increase.
(b) Bonus. The Company may pay the Employee a
bonus if, in the judgment
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of the Board of Directors, the earnings of the Company or the services of the
Employee merit such bonus.
(c) Fringe Benefits. During the Period of
Employment, the Employee shall be
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entitled to participate in such fringe benefit, insurance, deferred
compensation and stock option plans or programs of the Company, if any, to the
extent that his position, tenure, salary, age, health and other qualifications
make him eligible to participate, subject to the rules and regulations
applicable thereto. Such additional benefits shall include, but not be
limited to, paid sick leave and individual health insurance, all in accordance
with the policies of the Company. Except as specifically set forth herein,
the terms of, and participation by the Employee in, any such plan or program
shall be determined by the Board of Directors in its sole discretion. In the
event of the Employee's disability, the Employee and his family shall continue
to be covered by all of the Company's life, medical, health and dental plans,
at the Company's expense, for lesser of the term of such disability or the
remaining term of the Period of Employment. In the event of the Employee's
death, the Employee's family shall continue to be covered by all of the
Company's medical, health and dental plans, at the Company's expense, for
twenty-four (24) months following the Employee's death.
(d) Withholding and Employment Tax. Payment of
all compensation
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hereunder shall be subject to customary withholding tax and other employment
taxes and deductions as may be required with respect to compensation paid by
an employer/corporation to an employee.
(e) Vacations. Employee shall be entitled to annual
vacations in accordance
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with the policies of the Company of two weeks.
4. Business Expenses.
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The Company shall pay or reimburse the Employee for all reasonable
travel or other expenses incurred by the Employee in connection with the
performance of his duties under this Agreement, including reimbursement for
attending meetings of the Board of Directors, in accordance with such
procedures as the Company may from time to time establish for senior officers
and as required to preserve any deductions for income taxation purposes to
which the Company may be entitled.
5. Termination of Employment.
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Notwithstanding any other provision of this Agreement, the Period
of Employment may be terminated:
(a) By the Company, in the event of the
Employee's death, Disability (as hereinafter defined) or for Cause (as
hereinafter defined). For purposes of this Agreement, "Cause" shall mean
Employee's conviction of a crime involving an act or acts of dishonesty, fraud
or moral turpitude by the Employee, which act or acts constitute a felony and
the willful and continued failure to substantially perform Employee's duties
hereunder after receipt of written notice from the Company specifically
setting forth such failure. For purposes of this Agreement, "Disability"
shall mean the inability of Employee, in the reasonable judgment of a
physician appointed by the Board of Directors, to perform his duties of
employment for the Company or any of its subsidiaries because of any physical
or mental disability or incapacity, where such disability shall exist for an
aggregate period of more than 120 days in any 365-day period or for any period
of 90 consecutive days. The Company shall by written notice to the Employee
specify the event relied upon for termination pursuant to this Subsection
5(a), and the Period of Employment hereunder shall be deemed terminated as of
the date of such notice. In the event of any termination under this
Subsection 5(a), the Company shall pay all amounts then due to the Employee
under Section 3(a) of this Agreement, in addition to any severance payments
required by law, and, if such termination was due to Cause, the Company shall
have no further obligations to Employee under this Agreement.
(b) By the Company, for any reason and in its
sole and absolute discretion.
(c) By the Employee, (i) if the Company's CEO
fails to elect or reelect the Employee to, or removes the Employee from, any
of the offices referred to in Section 1(a) or (ii) if the Employee is not
elected or re-elected, or is removed from the Board of Directors of the
Company other than for Cause or failure
to discharge properly his duties in any such offices or at the direction of
the Company.
(d) During any period in which payments are
payable by the Company to Employee pursuant to Sections 5(b) or 5(c) hereof
(such payments being hereinafter collectively referred to as "Termination
Payments"), Employee and his family shall continue to be covered by the
Company's life, medical, health and death plans. Such coverage shall be at
the Company's expense to the same extent as if Employee were still employed by
the Company.
6. Non-Competition.
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During the Period of Employment hereunder and for the two year
period thereafter, the Employee shall not, anywhere within the United Mexican
States, the United States of America or anywhere else in the world in which
the Company (or any of its subsidiaries) is then doing business, engage in
activities in competition with the business of the Company, including but not
limited to any aspect of the teleconferencing or telecommunications
businesses, whether as an individual, investor, partner, joint venturer,
consultant, employee, agent, salesman, officer or director or otherwise. In
addition, for one year following the later of the last day of the Period of
Employment or the payment of the last Termination Payment hereunder, the
Employee shall not, within any jurisdiction in which the Company or any
subsidiary of the Company is then doing business, or within a one hundred
(100) mile radius of any such jurisdiction, engage in activities in
competition with the business of the Company or any subsidiary, either as an
individual, investor, partner, joint venturer, consultant, employee, agent,
salesman, officer or director or otherwise. Investments in less than five
percent of the outstanding securities of any class of a publicly-traded
company shall not be prohibited by this Section 6.
7. Inventions and Confidential Information.
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The parties hereto recognize that a major need of the Company is
to preserve its specialized knowledge, trade secrets, and confidential
information. The strength and good will of the Company is derived from the
specialized knowledge, trade secrets, and confidential information generated
from experience with the activities undertaken by the Company and its
subsidiaries. The disclosure of this information and knowledge to competitors
would be beneficial to them and detrimental to the Company, as would the
disclosure of information about the marketing practices, pricing practices,
costs, profit margins, design specifications, analytical techniques,and
similar items of the Company and its subsidiaries. By reason of his being a
senior executive of the Company, the Employee has or will have access to, and
has obtained or will obtain, specialized knowledge, trade secrets and
confidential information about the Company's operations and the operations of
its subsidiaries, which operations extend throughout the United Mexican
States. Therefore, the Employee hereby agrees as follows, recognizing that
the Company is relying on these agreements in entering into this Agreement:
(i) During and after the Period of Employment hereunder the Employee
will maintain as confidential and will not use, disclose
to others, or publish or otherwise make available to any other
party any inventions or any confidential business information
about the affairs of the Company and its subsidiaries, including
but not limited to confidential information concerning their
products, methods, product purchasing arrangements and agreements,
product distribution arrangements and agreements, engineering
designs, system designs and standards, analytical techniques,
technical information, customer information, employee information,
and other confidential information acquired by him in the course
of his past or future services for the Company. Employee agrees
to hold as the Company's property all memoranda, books, papers,
letters, formulas and other data, and all copies thereof and
therefrom, in any way relating to the Company's or its
subsidiaries' businesses and affairs, whether made by him or
otherwise coming into his possession, and on termination of his
employment, or on demand of the Company, at any time, to deliver
the same to the Company within twenty four (24) hours of such
termination or demand.
(ii) During the Period of Employment hereunder and for two years
following the last day of the Period of Employment, the Employee
will not induce or otherwise attempt to influence any employee of
the Company or its subsidiaries, to leave such entity's employ or
hire any such employee (unless the Board of Directors shall have
authorized such employment and the Company shall have consented
thereto in writing).
8. Indemnification.
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The Company will indemnify the Employee (and his legal
representatives) to the fullest extent permitted by the laws of the state in
which the Company is incorporated, as in effect at the time of the subject act
or omission, or the Certificate of Incorporation and Bylaws of the Company, as
in effect at such time or on the date of this Agreement, whichever affords
greater protection to the Employee, and the Employee shall be entitled to the
protection of any insurance policies the Company may elect to maintain
generally for the benefit of its directors and officers, against all costs,
charges and expenses whatsoever incurred or sustained by him or his legal
representative in connection with any action, suit or proceeding to which he
(or his legal representatives or other successors) may be made a party by
reason of his being or having been a director or officer of the Company or any
of its subsidiaries.
9. Litigation Expenses.
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In the event of any litigation or other proceeding between the
Company and the Employee with respect to the subject matter of this Agreement
and the enforcement of the rights hereunder, the Company shall reimburse the
Employee for all of his reasonable costs and expenses relating to such
litigation or other proceeding, including, without limitation, his reasonable
attorneys' fees and expenses, provided that such litigation or
proceeding results in:
(i) settlement requiring the Company to make a
payment to the Employee, or
(ii) final judgment or order in favor of the Employee.
10. Consolidation; Merger; Sale of Assets; Change of Control.
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Nothing in this Agreement shall preclude the Company from
combining, consolidating or merging with or into, transferring all or
substantially all of its assets to, or entering into a partnership or joint
venture with, another corporation or other entity, or effecting any other kind
of corporate combination provided that the corporation resulting from or
surviving such combination, consolidation or merger, or to which such assets
are transferred, or such partnership or joint venture assumes this Agreement
and all obligations and undertakings of the Company hereunder. Upon such a
consolidation, merger, transfer of assets or formation of such partnership or
joint venture, this Agreement shall inure to the benefit of, be assumed by,
and be binding upon such resulting or surviving transferee corporation or such
partnership or joint venture, and the term "Company," as used in this
Agreement, shall mean such corporation, partnership or joint venture, or other
entity and this Agreement shall continue in full force and effect and shall
entitle the Employee and his heirs, beneficiaries and representatives to
exactly the same compensation, benefits, perquisites, payments and other
rights as would have been their entitlement had such combination,
consolidation, merger, transfer of assets or formation of such partnership or
joint venture not occurred.
11. Survival of Obligations.
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Sections 5, 6, 7, 8, 9 and 10 shall survive the termination for
any reason of this Agreement (whether such termination is by the Company, by
the
Employee, upon the expiration of this Agreement or otherwise).
12. Options.
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As part of this agreement, Employee is entitled to incentive
options of the Company's common stock at a strike price of $4.50 per share
(hereafter "Options") subject to the 1996 Stock Option Plan. Said Options
will vest according to the following schedule as long as Employee is employed
by the company:
116,667 on August 1, 1997;
116,666 on August 1, 1998;
116,666 on August 1, 1999.
13. Severability.
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In case any one or more of the provisions or part of a provision
contained in this Agreement shall for any reason be held to be invalid,
illegal or unenforceable in any respect in any jurisdiction, such invalidity,
illegality or unenforceability shall be deemed not to affect any other
jurisdiction or any other provision or part of a provision of this Agreement,
nor shall such invalidity, illegality or unenforceability affect the validity,
legality or enforceability of this Agreement or any provision or provisions
hereof in any other jurisdiction; and this Agreement shall be reformed and
construed in such jurisdiction as if such provision or part of a provision
held to be invalid or illegal or unenforceable had never been contained herein
and such provision or part reformed so that it would be valid, legal and
enforceable in such jurisdiction to the maximum extent possible. In
furtherance and not in limitation of the foregoing, the Company and the
Employee each intend that the covenants contained in Sections 6 and 7 shall be
deemed to be a series of separate covenants, one for each state, territory or
jurisdiction of the United Mexican States and the United States of America and
any foreign country referenced therein. If, in any judicial proceeding, a
court shall refuse to enforce any of such separate covenants, then such
unenforceable covenants shall be deemed eliminated from the provisions hereof
for the purpose of such proceedings to the extent necessary to permit the
remaining separate covenants to be enforced in such proceedings. If, in any
judicial proceeding, a court shall refuse to enforce any one or more of such
separate covenants because the total time thereof or the geographic area
covered thereby is deemed to be excessive or unreasonable, then it is the
intent of the parties hereto that such covenants, which would otherwise be
unenforceable due to such excessive or unreasonable period of time or
geographic area, be enforced for such lesser period of time as shall be deemed
reasonable and not excessive by such court.
14. Entire Agreement; Amendment.
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This Agreement contains the entire agreement between the Company
and the Employee with respect to the subject matter hereof and thereof. This
Agreement may not be amended, waived, changed, modified or discharged except
by an instrument in writing executed by or on behalf of the party against whom
enforcement of any amendment, waiver, change, modification or discharge is
sought. No course of conduct or dealing shall be construed to modify, amend
or otherwise affect any of the provisions hereof.
15. Notices.
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All notices, request, demands and other communications hereunder
shall be in writing and shall be deemed to have been duly given (i) upon
delivery, if personally delivered, (ii) the next business day, if delivered
with all charges prepaid to a recognized overnight delivery service for
next day delivery, or (iii) five days after mailing, if mailed, postage
prepaid, via first class mail, in each such case as follows:
(a) To the Company: (b) To the Employee:
Telscape International Telscape International
0000 Xxxxxxxxx Xxxxxxx 0000 Xxxxxxxxx Xxxxxxx
Xxxxx 000 Xxxxx 000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
with an additional copy by like means, and by facsimile, to:
De Xxxxxxx Xxxxxxxxxxx Xxxxx & Xxxxx
0000 X Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxx, X.X. 00000
Attn: Xxxxx X. Xx Xxxxxxx, Esquire
and/or to such other persons and addresses as any party shall have specified
in writing to the other.
16. Assignability.
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This Agreement shall not be assignable by either party and shall
be binding upon, and shall inure to the benefit of, the heirs, executors,
administrators, legal representatives, successors and assigns of the parties.
In the event that all or substantially all of the business of the Company is
sold or transferred, then this Agreement shall be binding on the transferee of
the business of the Company whether or not this Agreement is expressly
assigned to the transferee.
17.. Governing Law.
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This Agreement shall be governed by and construed under the laws
of the State of Texas in the United States of America.
18. Waiver and Further Agreement.
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Any waiver of any breach of any terms or conditions of this
Agreement shall not operate as a waiver of any other breach of such terms or
conditions or any other term or condition, nor shall any failure to enforce
any provision hereof operate as a waiver of such provision or of any other
provision hereof. Each of the parties hereto agrees to execute all such
further instruments and documents and to take all such further action as the
other party may reasonably require in order to effectuate the terms and
purposes of this Agreement.
19. Headings of No Effect.
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The paragraph headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
COMPANY:
TELSCAPE INTERNATIONAL
By:
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Name: E. Xxxxx Xxxxx
Title: President, CEO
EMPLOYEE:
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Xxxx Xxxxx
