Employment Agreement - Executive TeleCard SA and Anthony Balinger
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT ("Agreement"), dated June 30, 1995, between
Executive TeleCard, S.A., a Turks and Caicos corporation with offices at
Duke Street, Grand Turk, Turks and Caicos, BWI (hereinafter called the
"Company"), and Anthony Balinger, residing at
(hereinafter called "Executive").
WHEREAS, the Company wishes to continue services of Executive as Vice
President and Director of Asia Pacific Operations for an extended period
to and including June 30, 1997; and
WHEREAS, Executive is willing to enter into this Agreement for such
period upon the terms and conditions hereinafter set forth:
NOW, THEREFORE, in consideration of the mutual covenants and
conditions herein contained, the parties to this Agreement agree as
follows:
1. EMPLOYMENT
Company shall employ Executive, and Executive shall serve as the Vice
President and Director of Far Eastern Operations of the Company during the
term of employment set forth in Paragraph 2 of this Agreement.
2. TERM OF EMPLOYMENT
Executive's "Term of Employment", as this term is used throughout
this Agreement shall be for a period of two years commencing June 30, 1995
and ending June 30, 1997 and any extension thereof.
3. EXECUTIVE'S TITLE AND DUTIES
3.1 Title and Duties
Executive shall during the term of his employment hereunder, have
responsibility for marketing and sales primarily in the Far East and
Pacific Rim. Executive's responsibilities shall consist primarily of
managing the Asian Pacific region including the solicitation and securing
of revenue sharing and enhancement arrangements with Postal Telegraph and
Telephone authorities in the defined area. Executive shall devote his
full time and attention to, and exert his best effort in the performance
of his duties hereunder, so as to promote the business of the Company, and
its affiliates. Executive shall accept the payments to be made to him
under this Agreement as full and complete compensation for all the
services performed by him under this Agreement except as may be otherwise
provided in writing.
3.2 Confidential Information
Executive shall not, directly or indirectly, or at any time, during
the term of his employment hereunder or thereafter and without regard to
when or for what reason, if any, such employment shall terminate, use or
permit the use of any trade secrets, customer's lists, or other
information of, or relating to information of the Company or any such
subsidiary or affiliate in connection with any activity or business,
except the business of the Company or any such subsidiary, or affiliate
and shall not divulge such trade secrets, customer's lists, and
information to any person, firm or corporation whatsoever, except as may
be necessary in the performance of his duties hereunder or as may be
required by any applicable law or determination of any duly constituted
administrative agency.
4. COMPENSATION AND EXPENSES
4.1 Salary
The Company shall pay Executive during the Term of Employment a total
base salary (the "salary") of not less than one hundred thousand dollars
($100,000.00) per annum payable in the normal pay periods of the Company
relating to executives of the Company, during each year of such term. It
is understood that the Company may, in the sole discretion of its Board of
Directors, increase such base salary. If the Company in its discretion
increases the compensation of Executive for any period of time, and if
Executive accepts such increase, this Agreement shall continue in full
force and effect whether or not it has been amended to reflect such
increase. Nothing herein is intended or shall be construed to obligate
the Company to make such increase.
4.2 Business Expenses
The Company will reimburse Executive for all reasonable expenses
properly incurred by him in its behalf in the performance of his duties
hereunder, upon presentation of properly itemized charges, receipts and/or
similar documentation, and otherwise in accordance with policies
established from time to time by the Board of Directors of the Company.
Executive's spouse will be permitted to accompany Executive on ____ trips
per year and Executive will be reimbursed by Company for the reasonable
expenses of his spouses accompaniment, including travel, meals and
accommodations.
4.3 Stock Participation
Executive will be eligible to receive stock options to purchase
shares of Executive TeleCard, Ltd. in an amount to be determined by the
Stock Option Committee under any stock option plan in effect during the
Employment Term and under the same terms and conditions as are provided
for other officers and directors under such plan.
4.4 Location of Executive
Company agrees that without Executive's written consent Executive's
principal place of work shall not be relocated and Executive shall
continue to have his offices in Hong Kong. To the extent that Executive
consents to a relocation, Company agrees to reimburse Executive for the
cost of such relocation of Executive and Executive's family and all
personal property from Hong Kong to Executive's new location. Company
further agrees to reimburse Executive for all temporary living expenses
for a minimum of three months, until Executive has completed the purchase
or lease of and occupied a new residence near Executive's new work
location with the Company.
4.5 Additional Compensation
In addition to the compensation and benefits to which Executive is
entitled under this Agreement, Executive shall receive a housing allowance
payable monthly in the sum of Two Thousand Two Hundred Fifty Dollars
($2.250.00) and the sum of Three Hundred Twenty Dollars ($320) per month
to cover the monthly premiums on life insurance policy for Executive.
5. BENEFITS
5.1 Participation in Benefit Plans
In addition to the other compensation provided in Paragraph 4.1
through 4.5 during the Term of Employment, Executive shall be entitled to
participate and shall be included in any profit sharing and stock option
plan or program of the Company now existing, and shall participate in any
such plans or programs established hereafter to the same extent as
executive officers and/or directors of the Company.
5.2 Holidays and Annual Vacation Leave
Executive shall be entitled to all paid holidays as available to
other employees of the Company and, in addition, to an annual vacation
leave which shall accrue on a pro rata basis during the Employment Term at
the rate of three (3) weeks per annum. Unused annual vacation leave
during each year of the Employment Term shall be carried over from year to
year as necessary due to the exigencies of the business.
5.3 Indemnification
Executive shall be indemnified by the Company to the fullest extent
provided under the indemnification provisions of the By-Laws and/or
Certificate of Incorporation presently in existence, or, to the extent
that the scope of such indemnification is greater, under any amendments to
the By-Laws and/or Certificate of Incorporation. To the extent that the
Company obtains indemnification insurance for its officers and/or
directors, such insurance shall also cover Executive to the same extent.
6. TERMINATION AND SEVERANCE PAYMENT
6.1 Termination
Upon the occurrence of an event of termination (as hereinafter
defined) during the period of Executive's employment under this Agreement,
the provisions of this Paragraph 6 shall apply. As used in this Agreement
an "event of termination" shall mean and include any one or more of the
following:
(i) The termination by the Company of Executive's employment
hereunder for any reason other than a material breach by Executive of this
Agreement or for "cause" as defined in (iii) hereinbelow, or
(ii) Executive's resignation from the Company's employ, pursuant to
the provisions of this paragraph, upon (a) any liquidation, dissolution,
consolidation, or merger of the Company with any third party, or transfer
of all or substantially all of its assets to any third party; or (b)
material breach of this Agreement by Company and such breach continues for
at least thirty (30) days following written notification by Executive of
such breach. Upon the occurrence of any event described in Clauses (a),
or (b) above, Executive shall have the right to elect to terminate his
employment under this Agreement by resignation upon not less than thirty
(30) days prior written notice given within a reasonable period of time
not to exceed, except in case of continuing breach, four (4) calendar
months after the event giving rise to said right to elect.
(iii) Termination by the Company for "cause" shall mean the
Executive's termination by action of the Company's Board of Directors
because of dishonesty, gross neglect of duties hereunder, conviction of a
felony, engaging directly or indirectly in any competing business, or
willful misconduct.
6.2 Termination Pay
Upon the occurrence of an event of termination the Company shall pay
Executive (a) a lump sum compensation of the greater of One Hundred,
Twenty Thousand ($120,000.00) or the balance of the salary to which the
Executive would be entitled to the end of the Term of Employment (b) at no
cost to Executive, the number of unrestricted shares of the common stock
of Executive TeleCard, Ltd. equal to the total number of outstanding stock
options held by Executive on the fifth day following termination or in
lieu thereof Executive may elect to surrender to Company his rights in
such outstanding stock options or shares (whether or not then exercisable)
then held by Executive, and, upon such surrender, Company shall pay to
Executive an amount in cash per share equal to, the mean between the high
and low selling price of such stock on the Nasdaq National Market or such
other market as Executive TeleCard, Ltd. stock is then traded on the date
of Executive's termination.
6.3 No Obligation to Mitigate Damages
Executive's benefits hereunder shall be considered severance pay in
consideration of his past service and pay and consideration of his
continued service from the date hereof and his entitlement thereto shall
not be governed by any duty to mitigate his damages by seeking further
employment nor offset by any compensation which he may receive from future
employment.
7. ASSIGNMENT
This Agreement and any rights (including Executive's Compensation)
hereunder shall not be assigned, pledged or transferred in any way by
either party hereto except that the Company shall have, with Executive's
consent, the right to assign its rights hereunder to any third party
successor in interest of the Company whether by merger, consolidation,
purchase of assets or stock or otherwise. Any attempted assignment,
pledge, transfer or other disposition of this Agreement or any rights,
interests or benefits contrary to the foregoing provisions shall be null
and void.
8. NOTICES
All notices, requests, demands and other communications hereunder
must be in writing and shall be deemed to have been duly given if
delivered by hand, sent by facsimile, or mailed by first class, registered
mail, return receipt requested, postage and registry fees prepaid to, the
applicable party and addressed as follows:
(i) if to the Company: Executive TeleCard, S.A.
8 Avenue C
Nanuet, New York 10954
Facsimile: (914) 627 3631
(ii) if to Executive: Anthony Balinger
[Address]
9. SEVERABILITY
If any provision of this Agreement shall, for any reason, be adjudged
by any court of competent jurisdiction to be invalid or unenforceable,
such judgement shall not affect, impair or invalidate the remainder of
this Agreement but shall be confined in its operation to the jurisdiction
in which made and to the provisions of this Agreement directly involved in
the controversy in which such judgement shall have been rendered.
10. WAIVER
No course of dealing and no delay on the part of any party hereto in
exercising any right, power or remedy under or relating to this Agreement
shall operate as a waiver thereof or otherwise prejudice such party's
rights, powers and remedies. No single or partial exercise of any rights,
powers or remedies under or relating to this Agreement shall preclude any
other or further exercise thereof or the exercise of any other right,
power or remedy.
11. ENTIRE AGREEMENT/GOVERNING LAW
This Agreement embodies the entire understanding and supersedes all
other oral or written agreements or understandings, between the parties
regarding the subject matter hereof. No change, alteration or
modification hereof may be made except in writing signed by both parties
hereto. This Agreement shall be construed and governed in all respect and
shall at all times be determined in accordance with the laws of the State
of New York.
12. HEADINGS
The headings of Paragraphs herein are included solely for convenience
of reference and shall not control the meaning or interpretation of any of
the provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement, consisting of seven (6) pages, on this 30th day of June, 1995.
EXECUTIVE TELECARD, S.A.
/s/Harold Reisner By:/s/ Edward J. Gerrity, Jr.
Witness Its:
EXECUTIVE
/s/Anthony Balinger
Anthony Balinger
GUARANTY
For valuable consideration and to induce Executive to enter into the
within Agreement with the Company, the undersigned hereby unconditionally
guarantees to Executive, his heirs and assigns, full, prompt and complete
performance by the Company of all of the provisions, conditions, covenants
and agreements contained in the within Agreement and does hereby waive all
notice of default by the Company, notice of the acceptance of this
Guaranty by Executive and consents to any extension of time that may be
given by Executive to the Company of time of payment and performance.
This guaranty is an absolute, continuing and unlimited guarantee of
payment and performance.
IN WITNESS WHEREOF, Guarantor has signed this guaranty on June 30,
1995.
EXECUTIVE TELECARD, LTD.
/s/Harold Reisner By:/s/ Edward J. Gerrity, Jr.
Witness Its:
<PAGE>
TERMINATION AGREEMENT
This AGREEMENT ("Agreement"), dated June 30, 1995, by and between
Executive TeleCard, S.A., a Turks & Caicos corporation (the "Company"),
and Anthony Balinger (the "Executive").
WHEREAS, the service of Executive, his knowledge and experience and
contacts in the industry are extremely valuable to the Company and Company
recognizes the valuable services that Executive can continue to render to
the Company; and
WHEREAS, Executive is willing to continue to serve Company but
desires assurances that in the event of any change in control of Company
he will continue to have the responsibility and status he has earned;
NOW THEREFORE, in consideration of the promises and the mutual
agreements herein contained, Company and Executive hereby agree as
follows:
1. Term.
This Agreement shall terminate the later of two years from the date
of this Agreement or two years from the effective date of a Change in
Control of the Company or a Change in Control of Executive TeleCard, Ltd.
("EXTL").
2. Change in Control.
No benefits shall be payable under this Agreement unless and until
(a) there shall have been a Change in Control of the Company or a Change
in Control of EXTL, while the Executive is still an employee of the
Company and (b) the Executive's employment by the Company thereafter shall
have been terminated in accordance with Section 3 below. For purposes of
this Agreement, a Change in Control of the Company and/or EXTL shall be
deemed to have occurred if (i) there shall be consummated (x) any
consolidation or merger of the Company or EXTL in which the Company or
EXTL is not the continuing or surviving corporation or pursuant to which
shares of the Company's or EXTL's Common Stock would be converted into
cash, securities or other property, other than a merger of the Company or
EXTL in which the holders of the Company's or EXTL's Common Stock
immediately prior to the merger have the same proportionate ownership of
common stock of the surviving corporation immediately after the merger, or
(y) any sale, lease, exchange or other transfer (in one transaction or a
series of related transactions) of all, or substantially all, of the
assets of the Company or EXTL, or (ii) the stockholders of the Company or
EXTL approved any plan or proposal for the liquidation or dissolution of
the Company or EXTL, or (iii) any person (as such term is used in Section
13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), shall become the beneficial owner (within the meaning of
Rule 13d-3 under the Exchange Act) of 20% or more of the Company's or
EXTL's outstanding Common Stock, or (iv) during any period of two
consecutive years, individuals who at the beginning of such period
constitute the entire Board of Directors of either the Company or EXTL
shall cease for any reason to constitute a majority thereof unless the
election, or the nomination for election by the Company's or EXTL's
stockholders, of each new director was approved by a vote of at least two-
thirds of the directors then still in office who were directors at the
beginning of the period.
3. Termination Following Change in Control.
(a) If a Change in Control of the Company or EXTL shall have
occurred while the Executive is still an Employee of the Company, the
Executive shall be entitled to the benefits provided in Section 4 below
upon the subsequent termination of the Executive's employment with the
Company by the Executive for Good Reason (as defined in Section 3 (c)
below) or by the Company unless such termination is as a result of (i) the
Executive's death; or (ii) the Executive's termination by the Company for
Cause (as defined in Section 3(b) below).
(B) Cause: For purposes of this Agreement only, the Company shall
have "Cause" to terminate the Executive's employment hereunder only on the
basis of material fraud or a criminal conviction involving moral turpitude
or arising from an act of the Executive that is directly contrary to the
Company's interest. Notwithstanding the foregoing, the Executive shall
not be deemed to have been terminated for Cause unless and until there
shall have been delivered to the Executive a copy of a resolution duly
adopted by the affirmative vote of not less than three-quarters of the
entire membership of the Company's Board of Directors at a meeting of the
Board called and held for that purpose (after reasonable notice to the
Executive and an opportunity for the Executive, together with the
Executive's counsel, to be heard before the Board), finding that in the
good faith opinion of the Board the Executive was guilty of the conduct
set forth in the first sentence of this Section 3(b) and specifying the
particulars thereof in detail, and an opinion of counsel for the Company
confirming that the opinion of the Board has a substantial basis in fact
and in law.
(C) Good Reason. For purposes of this Agreement "Good Reason" shall
mean any of the following (without the Executive's express written
consent):
(i) The assignment to the Executive by the Company of duties
inconsistent with the Executive's position, duties, responsibilities and
status with the Company immediately prior to a Change in Control of the
Company or EXTL, or a change in the Executive's titles or offices then in
effect immediately prior to the Change in Control of the Company or EXTL,
or any removal of the Executive from or any failure to reelect or
reappoint the Executive to any such positions;
(ii) a reduction by the Company in the Executive's base salary
in effect on the date hereof or as the same may be increased from time to
time during the term of this Agreement or the Company's failure to
increase (within 12 months of the Executive's last increase in base
salary) the Executive's base salary after a Change in Control of the
Company or EXTL in an amount which at least equals, on a percentage basis,
the average percentage increase in base salary for officers of the Company
effected in the preceding 12 months.
(iii) any failure by the Company to continue in effect any
benefit plan, program or arrangement in which the Executive and/or
eligible family members are participating at the time of a Change in
Control of the Company or EXTL and any other plans or fringe benefits
providing the Executive with substantially similar benefits (hereinafter
referred to as "Benefit Plans"), or the taking of any action by the
Company which would adversely affect the Executive's and/or Executive's
eligible family member's benefits under any such Benefit Plan or deprive
the Executive and/or any eligible family member of any material fringe
benefit enjoyed by the Executive at the time of a Change in Control of the
Company or EXTL;
(iv) any failure by the Company to continue in effect any
incentive plan or arrangement in which the Executive is participating at
the time of a Change in Control of the Company or EXTL (or any other plans
or arrangements providing him with substantially similar benefits)
(hereinafter referred to as "Incentive Plans") or the taking of any action
by the Company which would adversely affect the Executive's participation
in any such Incentive Plan or reduce the Executive's benefits under any
such Incentive Plan;
(v) any failure by the Company to continue in effect any plan
or arrangement to receive securities of the Company (including, without
limitation, the Company's existing Stock Option Plan, or any future Stock
Option Plan through the term of Executive's employment and any other plan
or arrangement to receive and exercise stock options, stock appreciation
rights, restricted stock or grants thereof) in which the Executive is
participating at the time of a Change in Control of the Company or EXTL
(or plans or arrangements providing him with substantially similar
benefits) (hereinafter referred to as "Securities Plans") or the taking of
any action by the Company which would adversely affect the Executive's
participation in or materially reduce the Executive's benefits under any
such Securities Plan;
(vi) a relocation of Executive's offices to a location greater
then twenty-five miles from the Executive's office as of the effective
date of Change in Control, or the Executive's relocation to any place
other than the location at which the Executive performed the Executive's
duties prior to a Change in Control of the Company or EXTL, except for
required travel by the Executive on the Company's business to an extent
substantially consistent with the Executive's business travel obligations
at the time of a Change in Control of the Company or EXTL.
(vii) any failure by the Company to provide the Executive with
the number of paid vacation days to which the Executive is entitled at the
time of a Change in Control of the Company.
(viii) any material breach by the Company of any provision of
this Agreement.
(ix) the Company's failure to pay Executive the compensation
and expenses to which Executive is entitled under the terms of his
employment with the Company dated June 30, 1995. Any failure by the
Company to obtain the assumption of this Agreement by any successor or
assign of the Company; or
(x) any purported termination of the Executive's employment
which is not effected pursuant to the Notice of Termination satisfying the
requirements of Section 3(d), and for purposes of this Agreement, no such
purported termination shall be effective.
(xi) Executive's voluntary resignation for any reason within
six (6) months from the effective date of Change in Control of the Company
or EXTL
(d) Notice of Termination by the Company. Any termination by the
Company pursuant to Section 3(b) shall be communicated by a Notice of
Termination. For purposes of this Agreement a "Notice of Termination"
shall mean a written notice which shall indicate those specific
termination provisions in this Agreement relied upon and which 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. For the purposes of this Agreement, no such purported
termination by the Company shall be effective without such Notice of
Termination.
(e) Date of Termination. "Date of Termination" shall mean if the
Executive's employment is terminated by Executive or by the Company for
any reason, the date on which a Notice of Termination is given, provided
that if within 30 days after any Notice of Termination is given to the
Executive by the Company, the Executive notifies the Company that a
dispute exists concerning the termination, the Date of Termination shall
be the date the dispute is finally determined, whether by mutual agreement
by the parties or upon final judgment, order or decree of a court of
competent jurisdiction (the time for appeal therefrom having expired and
no appeal having been perfected).
4. Severance Compensation upon Termination of Employment.
If the Company shall terminate the Executive's employment other than
pursuant to Section 3(b) or if the Executive shall terminate his
employment for Good Reason, then the Company shall pay to the Executive as
severance pay the following compensation:
(a) On the fifth day following termination, in a lump sum, in cash,
an amount equal to three times the average of the aggregate of the annual
compensation paid by the Company to the Executive during the term of his
employment preceding the Change in Control of the Company or EXTL;
provided, however, that if the lump sum severance payment under this
Section 4, either alone or together with other payments which the
Executive has the right to receive from the Company, would constitute a
"parachute payment" (as defined in Section 280G of the Internal Revenue
Code of 1986, as amended (the "Code"), such lump sum severance payment
shall be reduced to the largest amount as will result in no portion of the
lump sum severance payment under this Section 4 being subject to the
excise tax imposed by Section 4999 of the Code. The determination of any
reduction in the lump sum severance payment under this Section 4 pursuant
to the foregoing provision shall be made by the Executive in good faith,
and such determination shall be conclusive and binding on the Company;
(b) To the extent Executive and the Executive's eligible family
members are eligible they shall continue to be covered by all noncash
benefit plans of the Company or any successor plans or programs in effect
on the date of acquisition of control, for twenty-four months thereafter.
In the event Executive and participating family members are ineligible
under the terms of such plans to continue to be so covered, Company shall
provide substantially equivalent coverage from other sources.
(c) At no cost to Executive, the number of unrestricted shares of
the common stock of Executive TeleCard, Ltd. equal to the total number of
outstanding stock options held by Executive on the fifth day following
termination or in lieu thereof Executive may elect to surrender to Company
his rights in such outstanding stock options (whether or not then
exercisable) then held by Executive, and, upon such surrender, Company
shall pay to Executive an amount in cash per share, which is the greater
of the average price per share paid in connection with the acquisition of
control of Executive TeleCard, Ltd. if such control was acquired by the
payment of cash or the then fair market value per option share of the
consideration paid for such shares if such control was acquired for
consideration other than cash, or the price per share paid in connection
with any tender offer for shares of Executive TeleCard, Ltd. common stock
leading to control, or the mean between the high and low selling price of
such stock on the Nasdaq National Market or other market on which
Executive TeleCard, Ltd. stock is then traded on the date of Executive's
termination.
5. No Obligation to Mitigate Damages; No Effect on Other Contractual
Rights; No Right of Set-Off.
(a) Executive's benefits hereunder shall be considered severance pay
in consideration of his past service and pay and consideration of his
continued service from the date hereof and his entitlement thereto shall
not be governed by any duty to mitigate his damages by seeking further
employment nor offset by any compensation which he may receive from future
employment.
(b) The provisions of this Agreement, and any payment provided for
hereunder, shall not reduce any amounts otherwise payable, or in any way
diminish the Executive's or the Executive's eligible family members'
existing rights, or rights which would accrue solely as a result of the
passage of time, under any Benefit Plan, Incentive Plan or Securities
Plan, employment agreement or other contract, plan or arrangement.
(c) The Company shall have no right of set-off or counterclaim in
respect of any claim, debt or obligation against any payments to
Executive, his dependents, beneficiaries, or estate provided for in this
Agreement.
6. Successor to the Company.
(a) The Company and EXTL will require any successor or assign
(whether direct or indirect, by purchase merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of
the Company, by agreement in form and substance satisfactory to the
Executive, expressly, absolutely and unconditionally to assume and agree
to perform this Agreement in the same manner and to the same extent that
the Company and EXTL would be required to perform it if no such succession
or assignment had taken place. Any failure by the Company or EXTL to
obtain such agreement prior to the effectiveness of any such succession or
assignment shall be a material breach of this Agreement and shall entitle
the Executive to terminate the Executive's employment for Good Reason. As
used in this Agreement, "Company" shall mean the Company as hereinbefore
defined and any successor or assign to its business and/or assets as
aforesaid which executes and delivers the agreement provided for in this
Section 6 or which otherwise becomes bound by all the terms and provisions
of this Agreement by operation of law. If at any time during the term of
this Agreement the Executive is employed by any corporation a majority of
the voting securities of which is then owned by the Company, "Company" as
used in this Agreement shall in addition include such employer. In such
event, the Company agrees that it shall pay or shall cause such employer
to pay any amounts owed to the Executive pursuant to Section 4 hereof.
(b) This Agreement shall inure to the benefit of and be enforceable
by the Executive's personal and legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.
If the Executive should die while any amounts are still payable to him
hereunder, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to the Executive's
devisee, legatee or other designee or, if there be no such designee, to
the Executive's estate.
7. Notice.
For purposes of this Agreement, notices and all other communications
provided for in the Agreement shall be in writing and shall be deemed to
have been duly given when delivered or mailed by United States registered
mail, return receipt registered, postage prepaid as follows:
If to the Company: Executive TeleCard, S.A.
MacLaw House, Duke Street
Grand Turk, Turks & Caicos Island, B.W.I.
If to Executive: Anthony Balinger
[Address]
or such other address as either of the parties may have furnished to the
other in writing in accordance herewith, except that notices of change of
address shall be effective only upon receipt.
8. Miscellaneous.
No provisions of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in writing
signed by the Executive and the Company. No waiver by any party hereto at
any time of any breach by another party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreements
or representations, oral or otherwise, express or implied, with respect to
the subject matter hereof have been made by any party which are not set
forth expressly in this Agreement. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
9. Validity.
The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of
this Agreement, which shall remain in full force and effect.
10. Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
11. Legal Fees and Expenses.
In the event that the Company terminates or seeks to terminate
Executive and Executive disputes such termination or attempted termination
and prevails and, or Executive elects to terminate his service hereunder
for Good Reason and the Company disputes its obligation to pay Executive
the benefits provided for under Section 4 of this Agreement and Executive
prevails, the Company shall pay or reimburse Executive for all reasonable
costs incurred by Executive in such dispute, including attorney's fees and
costs.
12, Entire Agreement/Governing Law
This Agreement embodies the entire understanding and supersedes all
other oral or written agreements or understandings, between the parties
regarding the subject matter hereof. No change, alteration or
modification hereof may be made except in writing signed by both parties
hereto. This Agreement shall be construed and governed in all respect and
shall at all times be determined in accordance with the laws of the State
of New York.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement, consisting of eight pages, on this 30th day of June, 1995.
EXECUTIVE TELECARD, S.A.
By:/s/Edward J. Gerrity, Jr.
Witness Its:
/s/Anthony Balinger
Witness Anthony Balinger
GUARANTY
For valuable consideration and to induce Executive to enter into the
within Agreement with the Company, the undersigned hereby unconditionally
guarantees to Executive, his heirs and assigns, full, prompt and complete
performance by the Company of all of the provisions, conditions, covenants
and agreements contained in the within Agreement and does hereby waive all
notice of default by the Company, notice of the acceptance of this
Guaranty by Executive and consents to any extension of time that may be
given by Executive to the Company of time of payment and performance.
This guaranty is an absolute, continuing and unlimited guarantee of
payment and performance.
IN WITNESS WHEREOF, Guarantor has signed this guaranty on June 30, 1995.
EXECUTIVE TELECARD, LTD.
By:/s/Edward J. Gerrity, Jr.
Witness Its: