Exhibit 10.3
AMENDMENT TO EXECUTIVE EMPLOYMENT
AGREEMENT
THIS AMENDMENT TO EXECUTIVE
EMPLOYMENT AGREEMENT dated as of February 6, 2009 (the “
Amendment ”), is entered into by and
between ELANDIA INTERNATIONAL INC., a Delaware corporation (the
“ Company ”) and PETE R. PIZARRO,
an individual (the “ Executive ”).
Capitalized terms used in this Amendment and not otherwise defined
in this Amendment have the meanings assigned to them in the
Original Employment Agreement (defined below).
RECITALS
WHEREAS , the Company and the Executive entered into
that certain Executive Employment Agreement, dated as of
February 15, 2008, as amended April 29, 2008, and further
amended August 13, 2008 (the “ Original
Employment Agreement ”), whereby the Company
agreed to employ the Executive as its President and Chief Executive
Officer on the terms and conditions set forth in the Original
Employment Agreement; and
WHEREAS , the Company and Stanford International Bank
Ltd. entered into that certain Credit Agreement, dated as of
July 21, 2008, as amended by (i) that certain First
Amendment to Credit Agreement dated as of September 5, 2008,
(ii) that certain Fourth Amendment to Preferred Stock Purchase
Agreement and Second Amendment to Credit Agreement dated as of
September 17, 2008 and (iii) that certain Third Amendment
to Credit Agreement dated as of November 14, 2008 (the
foregoing amendments together with the original Credit Agreement,
collectively, the “ Credit Agreement
”), whereby Stanford committed to loan the Company up to
$40,000,000 on the terms and conditions set forth in the Credit
Agreement;
WHEREAS , Stanford’s funding commitment under the
Credit Agreement was a material inducement for the Executive to
enter into the Original Employment Agreement with the
Company;
WHEREAS , as of the date hereof, the Company and
Stanford have entered into a modification agreement, a copy of
which is attached as Exhibit “A” hereto (the “
Modification Agreement ”), pursuant to
which, among other things, the Company has agreed to amend the
Credit Agreement in order to terminate Stanford’s obligation
to fund any further amounts thereunder;
WHEREAS , the consummation of certain of the
transactions contemplated by the Modification Agreement may
constitute a breach by the Company of the Original Employment
Agreement or otherwise allow the Executive to terminate the
Original Employment Agreement for “Good
Reason”;
WHEREAS , the Company has not yet adopted any bonus plan
for Executive as otherwise required by Section 2(b) of the
Original Employment Agreement;
WHEREAS , the Company and the Executive wish to amend
the Original Employment Agreement as provided herein to, among
other things, provide additional compensatory benefits to the
Executive in consideration for his waiver of any breach by the
Company of the Original Employment Agreement which may result from
the consummation of the transactions contemplated by the
Modification Agreement, and to agree upon terms for
Executive’s 2009 bonus and set a timetable for adoption of
Executive’s bonus plan for future years; and
WHEREAS , the Compensation Committee of the Board of
Directors of the Company (acting on the recommendation of an
independent compensation advisor) has (i) determined that this
Amendment is advisable, (ii) determined that this Amendment
and the transactions contemplated hereby, including the additional
compensation to be provided to the Executive, are fair to and in
the best interests of the Company, and (iii) approved this
Amendment and the transactions contemplated hereby all upon the
terms and subject to the conditions set forth herein.
NOW, THEREFORE
, in consideration of the premises
and the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
AGREEMENT
1. Modification of Stanford
Financing Commitment . The Executive acknowledges and
agrees that the modifications to the financing commitment made by
Stanford in favor of the Company as set forth in the Modification
Agreement shall not constitute: (A) a breach of any of the
obligations of the Company under the terms and conditions of the
Original Employment Agreement including, without limitation, the
provisions of Sections 3 and 6(d)(iii) thereof, (B) a
circumstance allowing the Executive to terminate the Original
Employment Agreement for “Good Reason” as defined in
Section 6(d)(iii) thereof, nor (C) grounds for the
Executive to otherwise terminate the Original Employment Agreement.
The modifications to Stanford’s financing obligations under
the Credit Agreement include, without limitation, the
following:
(a) The termination of any further
obligation of Stanford to fund amounts under the Credit Agreement
along with the cancellation of all loan documents related
thereto;
(b) The conversion by Stanford of
all amounts currently outstanding under the Credit Agreement
($12,000,000 plus accrued interest thereon) into 1,555,556 shares
of Series B Convertible Preferred Stock of the Company;
and
(c) The surrender by Stanford to the
Company of 16,148,612 shares of common stock for cancellation as a
result of which Stanford shall beneficially own no more than 49.9%
of the issued and outstanding common stock of the
Company.
The Executive hereby waives any
rights or remedies he may have under the Original Employment
Agreement, as amended hereby, arising from any matter described in
this Section 1. The Executive, on behalf of himself and his
heirs, administrators and personal representatives (the “
Releasors ”), hereby irrevocably and
forever releases and discharges the Company and its stockholders,
affiliates,
2
directors, officers, employees, legal advisors
and other representatives, and the respective successors and
assigns of each of them (the “ Releasees
”) from any and all claims, demands, actions, obligations,
and liabilities whatsoever, whether absolute or contingent,
liquidated or unliquidated, both at law and in equity which the
Executive or any other Releasor now has, has ever had or may
hereafter have against the respective Releasees arising
contemporaneously with or prior to the date hereof on account of
or
