EXHIBIT 10.2
EMPLOYMENT AGREEMENT
AGREEMENT made this 4th day of February, 1999, by and between ITXC
Corp., a corporation formed under the laws of the State of Delaware (the
"Company"), and Xxxx X. Xxxxx (the "Executive").
W I T N E S S E T H:
WHEREAS, the Company wishes to employ the Executive and the Executive
wishes to accept such employment, and each desires to enter into an agreement to
provide for the terms and conditions of such employment set forth herein;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, receipt of which is hereby acknowledged, the parties
hereto agree as follows:
1. Employment
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The Company agrees to employ the Executive during the Term specified
in section 2, and the Executive agrees to accept such employment, upon the terms
and conditions hereinafter set forth.
2. Term
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(a) Subject to Section 6 below and the other terms and conditions of
this Agreement, the Executive's employment by the Company shall be for a term
(the "Term") commencing on February 1, 1999 and expiring on the date (hereafter
referred to as the "Expiration Date") which is (a) January 31, 2001 or (b) any
later date to which the Term may be extended by written agreement of the
parties. Notwithstanding anything contained herein to the contrary, in the
event that the Executive's employment with the Company continues after the
Expiration Date, the Executive's employment shall be deemed to be "at will". The
effective date of the termination of the Executive's employment with the
Company, regardless of the reason therefor, is referred to in this Agreement as
the "Date of Termination".
(b) Upon termination of the employment of the Executive with the
Company on or after the Expiration Date, the Company shall pay the Executive,
subject to appropriate offsets, as permitted by applicable law, for debts or
money due to the Company (collectively, "Offsets"), any earned but unpaid salary
and bonus compensation, and any unused accrued vacation, only through or as of,
and any unpaid reimbursement expenses outstanding as of, the
Date of Termination. Any benefits to which the Executive or his beneficiaries
may be entitled to under the plans and programs described in section 5(b) below,
or any other applicable plans and programs, as of the Date of Termination shall
be determined in accordance with the terms of such plans and programs. In
addition, unless the Executive's employment terminates on or after the
Expiration Date other than as a result of the Executive's death, disability or
by the Company for Cause (as defined in section 6(a), the Company shall continue
to pay the Executive his rate of base salary compensation then in effect for a
period of six months. Except as provided in this section 2(b), in connection
with the Executive's termination of employment pursuant to section 2(a), the
Company shall have no further liability to the Executive or the Executive's
heirs, beneficiaries or estate for damages, compensation, benefits, severance,
indemnities or other amount of whatever nature.
3. Duties and Responsibilities
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(a) During the Term, the Executive shall have the position of
Executive Vice President and Chief Operating Officer or such other title as may
be agreed between the Executive and the Company. The Executive shall perform
such duties and responsibilities as may be assigned to him from time to time
consistent with his position, and in the absence of such assignment, such duties
as are customary and commensurate with such position. The Executive further
agrees to accept election, and to serve during all or any part of the Term, as a
director of the Company and as an officer or director of any subsidiary of the
Company, without any additional compensation therefor.
(b) The Executive's employment by the Company shall be full-time and
exclusive, and during the Term, the Executive agrees that he will (i) devote
substantially all of his business time and attention, his best efforts, and all
his skill and ability to promote the interests of the Company and its
affiliates; (ii) carry out his duties in a competent and professional manner;
(iii) work with other employees of the Company and its affiliates in a competent
and professional manner; and (iv) generally promote the interests of the Company
and its affiliates. Notwithstanding the foregoing, the Executive shall be
permitted to engage in civic or charitable activities and manage his personal
investments, provided that such activities (individually or collectively) do not
materially interfere with the performance of his duties or responsibilities
under this Agreement.
(c) The Executive's principal office shall initially be located in
Plainsboro, New Jersey, subject to necessary travel requirements of his position
and duties hereunder. The Company reserves the right to move Executive's
principal office to a location within a 50 miles of said location.
4. Compensation
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(a) As compensation for his services hereunder, the Company shall pay
the Executive, in accordance with its normal payroll practices, base salary
compensation at an annual rate not less than the greater of $200,000.00 or the
base salary of the Executive most recently approved by the Board of Directors of
the Company.
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(b) Subject to the attainment of such individual and Company
objectives as the Board of Directors of the Company shall establish, the
Executive may be awarded a cash bonus for each three month period of employment
not to exceed, on an annualized basis, 200% of the Executive's annual base
salary then in effect; provided, however, that the minimum cash bonus to be paid
the Executive for the three month period of employment commencing February 1,
1999 shall be $50,000 and the minimum cash bonus to be paid the Executive for
the three month period of employment commencing May 1, 1999 shall be $25,000.
(c) As of the first day of the Term, the Executive shall be granted
non-qualified options ("First Day Options") under the ITXC Corp. Stock Incentive
Plan (the "Stock Incentive Plan") to purchase 750,000 shares of ITXC Corp.
common stock. The exercise price of such First Day Options shall be the fair
market value of ITXC Corp. common stock on December 31, 1998 (the "Grant Date")
as determined in accordance with the terms of the Stock Incentive Plan.
500,000 of such First Day Options shall vest and become exercisable at
the rate of thirty-three and one-third percent (33-1/3%) on each one-year
anniversary of the Grant Date, commencing with January 1, 2000. The remaining
250,000 such First Day Options shall vest and become exercisable on January 1,
2006; provided, however, that if a "change in control" of [Qwest] (as defined
under the [Qwest Stock Option Plan]) occurs before January 1, 2001, 125,000 of
such First Day Options shall thereupon immediately vest if the price paid for
each share of [Qwest] common stock in connection with such change in control is
at least $35.00 per share but no more than $40.00 per share, and 250,000 of such
First Day Options shall thereupon immediately vest if the price paid for each
share of Qwest common stock in connection with such change in control is more
than $40.00 per share. Except as provided by section 6(d) or the Stock
Incentive Plan, upon the Executive's termination of employment with the Company,
all First Day Options which are not vested shall be forfeited.
In the event that, within 18 months after the Grant Date, the Company
engages in one or more private equity placements (each a "Placement") at a time
when shares of the Company's Series C Convertible Preferred Stock have a value
of less than $9.29 per share, the Company shall grant Executive, as of the date
of each such Placement, such number of additional non-qualified options (the
"Additional Options") under the Stock Incentive Plan (or any successor plan) as
may be required to maintain the equity ownership percentage of the Executive in
the Company (on a fully diluted basis) to the extent represented by Executive's
outstanding Options (whether or not vested and including any Additional Options
granted hereunder in connection with a prior Placement) immediately prior to the
Placement plus any shares of ITXC Corp. common stock which have been issued to
the Executive as a result of his exercise of Options prior to such Placement.
The exercise price of the Additional Options shall be the fair market value of
ITXC Corp. common stock on such date of grant as determined in accordance with
the terms of the Stock Incentive Plan (or any successor plan). The Additional
Options shall vest in accordance with the same vesting schedule described above
with respect to First Day Options, as if such Additional Options had been
granted on the Grant Date.
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For purposes of this Agreement, First Day Options and Additional
Options, if any, shall be collectively referred to as "Options". Except as set
forth herein, the Options shall be subject in all respects to the terms and
conditions of the plan governing the Options.
(d) All compensation paid to the Executive shall be subject to
applicable tax withholding requirements.
5. Expenses; Fringe Benefits
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(a) The Company agrees to pay or to reimburse the Executive during the
Term for all reasonable, ordinary and necessary vouchered business or
entertainment expenses incurred in the performance of his services hereunder in
accordance with the policy of the Company as from time to time in effect.
(b) During the Term, the Executive and, to the extent eligible, his
dependents, shall be entitled to participate in and receive all benefits under
any employee benefit plans and programs provided by the Company (including
without limitation, 401(k), medical, dental, disability, group life (including
accidental death and dismemberment) and business travel insurance plans and
programs) applicable generally to the employees of the Company, subject,
however, to the terms and conditions of the various plans and programs in effect
from time to time.
(c) The Executive shall accrue paid personal time off days in
accordance with the personal time off days policy of the Company applicable
generally to executives of the Company in effect from time to time. In
addition, the Executive shall be entitled to five (5) additional paid personal
time off days to be used in connection with the Executive's relocation to New
Jersey.
(d) Notwithstanding anything contained herein to the contrary, the
Company reserves the right to modify, amend or terminate any employee benefit
plan or policy as it deems appropriate in its discretion; provided that unless
required by law, the Company shall not amend, modify or terminate any such plan
or policy in a manner that treats the Executive differently from other similarly
situated employees.
(e) The Executive agrees to relocate his principal residence within
driving commuting distance of the Company's Plainsboro, New Jersey office by not
later than August 15, 1999. The Company shall, subject to receipt of
appropriate expense reports and vouchers, promptly reimburse the Executive for
Relocation Expenses in an aggregate amount not to exceed $100,000.00.
Relocation Expenses shall include normal and customary moving expenses
(including packing and unpacking, personal effects, automobiles), temporary
living expenses, house and school hunting trips, real estate commission on the
sale of Executive's current home, attorneys fees and closing costs on a new
home, mortgage points on a new mortgage in excess of two points (but only if
mortgages for two points or less are unavailable in the marketplace on
reasonable lending terms), and commuting costs incurred until the earlier of the
date Executive relocates his principal residence or August 15, 1999. To the
extent that the Relocation Expenses
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for which Executive receives reimbursement from the Company are not deductible
for Federal income tax purposes, the Company will "gross-up" the payments based
on Executive's effective Federal income tax rate for 1999 and any such "gross-
up" payment shall be deemed a Relocation Expense for purposes of this paragraph
and subject to the $100,000.00 limitation set forth above. Notwithstanding
anything contained herein to the contrary, if Executive's employment with the
Company terminates prior to February 1, 2000 for any reason other than as a
result of death or disability or pursuant to sections 6(a) or 6(b) hereof, no
Relocation Expenses shall be paid or reimbursed by the Company (other than
Relocation Expenses that are commuting expenses) and the Executive shall within
thirty (30) days of such termination of employment repay the Company for any
Relocation Expenses (other than Relocation Expenses that are commuting expenses)
that have been paid or reimbursed by the Company.
6. Termination
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(a) The Company, by direction of its Board of Directors and/or Chief
Executive Officer, shall be entitled to terminate the Term prior to the
Expiration Date and to discharge the Executive for "Cause" effective upon the
giving of written notice. The term "Cause" shall be limited to the following
grounds:
(i) The willful and continued failure by the Executive to
substantially perform any of his material duties hereunder or to
follow the reasonable and lawful orders of the Board of Directors of
the Company or the Chief Executive Officer of the Company;
(ii) The Executive's misappropriation of material assets of the
Company;
(iii) Use of alcohol or illegal drugs, materially interfering
with the performance of the Executive's obligations under this
Agreement;
(iv) Indictment, arraignment or conviction of a felony or of any
crime involving moral turpitude, dishonesty or theft;
(v) The commission by the Executive of any willful or intentional
act, or the Executive's willful or intentional failure to act, which
could reasonably be expected to injure the reputation, business or
business relationships of the Company; provided, however, that no act
or failure to act on the part of the Executive shall be deemed to be
willful or intentional if it was due primarily to an error of judgment
or negligence, but shall be deemed willful or intentional if done, or
omitted to be done, by the Executive not in good faith and without
reasonable belief that his action or omission was in or not opposed to
the best interests of the Company. Failure to meet performance
standards or objectives of the Company by itself shall not constitute
Cause for purposes of this Agreement.
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(vi) Any material breach (not covered by any of the clauses (i)
through (v)) of any term, provision or condition of this Agreement or
of any Company policy.
(b) The Executive shall be entitled to terminate this Agreement and
the Term hereunder prior to the Expiration Date in the event that the Company is
in default of a material term of this Agreement, which default remains uncured
for a period of 30 days after written notice of such default from the Executive
to the Company, such notice to specify the specific nature of the claimed
default and the manner in which the Executive requires such default to be cured.
Notwithstanding any such termination, or in the event the Company terminates the
employment of the Executive prior to the Expiration Date in breach of its
obligations under this Agreement (hereinafter referred to as a "Termination
Without Cause"), the restrictions set forth in section 8 shall remain in full
force and effect.
(c) Upon the termination of the employment of the Executive with the
Company pursuant to section 6(a) or by virtue of a resignation other than
pursuant to a termination under section 6(b) below, the Company shall pay the
Executive, subject to any Offsets, (i) any earned but unpaid salary
compensation, (ii) any earned but unpaid cash bonus, (iii) any unused accrued
vacation, and (iv) any unpaid reimbursable expenses (except as provided under
Section 5(d), in each case, as of the Date of Termination. Any benefits to
which the Executive or his beneficiaries may be entitled to under the plans and
programs described in section 5(b) above, or any other applicable plans and
programs, as of his Date of Termination shall be determined in accordance with
the terms of such plans and programs. Except as provided in this section 6(c),
the Company shall have no further liability to the Executive or the Executive's
heirs, beneficiaries or estate for damages, compensation, benefits, severance,
indemnities or other amount of whatever nature.
(d) In the event of the termination of the Executive's employment by
the Executive pursuant to section 6(b) above or in the event of a Termination
Without Cause by the Company (each such event being called a "Wrongful
Termination"), as liquidated damages, the Executive shall be entitled to
continue to receive from the Company, subject to any Offsets and for so long as
the Executive is not in breach of his obligations to the Company under sections
8 and 9 hereof, (i) his then applicable salary compensation when otherwise
payable through the remainder of the then current Term hereof reduced by any
income earned by the Executive as a result of gainful activity during the
remainder of such Term whether as an employee, principal, partner, agent,
consultant, co-venturer or in any other capacity (hereinafter referred to as
"Other Employment"), (ii) any earned but unpaid bonus as of the Date of
Termination, and (iii) any unpaid reimbursable expenses outstanding, and any
unused accrued paid personal time off days, as of the Date of Termination. Any
benefits to which Executive or his beneficiaries may be entitled to under the
plans and programs described in section 5(b) above, or any other applicable
plans and programs, as of his Date of Termination shall be determined in
accordance with the terms of such plans and programs; provided, however, that
the first six months of the Executive's cost of continued "COBRA" medical
coverage, should such coverage be elected, shall be the same as the cost paid by
active executives of the Company for group health coverage. In addition, the
Executive shall continue to vest in the Options in accordance with the terms set
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forth in section 4(c) for the remainder of the Term. Except as provided in this
section 6(d) in connection with a Wrongful Termination, (x) the Company shall
have no further liability to the Executive or the Executive's heirs,
beneficiaries or estate for damages, compensation, benefits, severance,
indemnities or other amount of whatever nature and (y) the Executive shall be
under no obligation to mitigate his damages or to seek Other Employment;
provided that, as indicated in this section 6(d), any income the Executive earns
from Other Employment shall reduce payments by the Company under section
6(d)(i). From time to time, upon the Company's reasonable request, the
Executive shall provide the Company written verification of amounts earned from
Other Employment. In the event the Executive fails to supply such information,
the obligations of the Company to the Executive under this section 6(d) shall
terminate. It is agreed that a termination of the Executive's employment on or
after the Expiration Date shall not be deemed a Wrongful Termination.
7. Disability; Death
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(a) In the event the Executive shall be unable to perform his duties
hereunder by virtue of illness or physical or mental incapacity or disability
(from any cause or causes whatsoever) in substantially the manner and to the
extent required hereunder prior to the commencement of such disability (all such
causes being herein referred to as "disability"), the Company shall have the
right to terminate the Executive's employment hereunder as at the end of any
calendar month during the continuance of such disability upon at least 30 days'
prior written notice to him. In the event of the Executive's death, the Date of
Termination shall be the date of such death.
(b) In the event the Executive's employment terminates pursuant to
section 7(a), the Executive, or in the case of his death, the Executive's
estate, shall be entitled to receive, subject to any Offsets, (i) all salary and
bonus compensation earned but unpaid as of the Date of Termination and (ii) any
unpaid reimbursable expenses outstanding, and any unused accrued vacation, as of
such date. Any benefits to which the Executive or his beneficiaries may be
entitled under the plans and programs described in sections 5(b) above, or any
other applicable plans and programs, as of his Date of Termination shall be
determined in accordance with the terms of such plans and programs. Except as
provided in this section 7(b), in the event of the Executive's termination due
to disability or death, the Company shall have no further liability to the
Executive or the Executive's heirs, beneficiaries or estate for damages,
compensation, benefits, severance, indemnities or other amounts of whatever
nature.
8. Confidential Information In consideration of the covenants of the
------------------------
Company herein, the Executive agrees as follows:
(a) The Executive hereby agrees and acknowledges that he has and has
had access to or is aware of Confidential Information. The Executive hereby
agrees that he shall keep strictly confidential and will not prior to or after
his Date of Termination, without the Company's express written consent, divulge,
furnish or make accessible to any person or entity, or make use of for the
benefit of himself or others, any Confidential Information obtained, possessed,
or known by him except as required in the regular course of performing the
duties
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and responsibilities of his employment by the Company while in the employ
of the Company, and that he will, prior to or upon his Date of Termination
deliver or return to the Company all such Confidential Information that is in
written or other physical or recorded form or which has been reduced to written
or other physical or recorded form, and all copies thereof, in his possession,
custody or control. The foregoing covenant shall not apply to (i) any
Confidential Information that becomes generally known or available to the public
other than as a result of a breach of the agreements of the Executive contained
herein, (ii) any disclosure of Confidential Information by the Executive that is
expressly required by judicial or administrative order; provided however that
the Executive shall have (x) notified the Company as promptly as possible of the
existence, terms and circumstances of any notice, subpoena or other process or
order issued by a court or administrative authority that may require him to
disclose any Confidential Information, and (y) cooperated with the Company, at
the Company's request, in taking legally available steps to resist or narrow
such process or order and to obtain an order or other reliable assurance that
confidential treatment will be given to such Confidential Information as is
required to be disclosed.
(b) For purposes of this Agreement, "Confidential Information" means
any information including without limitation plans, specifications, drawings,
sketches, models, samples, data, computer programs, documentation, reports,
accountings, and other technical and/or business information, that can be
communicated by any means whatsoever, including without limitation oral, visual,
written and electronic transmission, that relates to the Company's current or
future business, products, services or development including, without
limitation:
(i) products and services, including without limitation existing
hardware and software products and hardware and software in various
stages of research and development;
(ii) business policies, practices, and customer and supplier
lists and information pertaining to customers and suppliers; and
(iii) information received from others that the Company is
obligated to treat as confidential or proprietary.
Confidential Information shall include any materials that relate to,
pertain to, record or embody any of the foregoing.
"Confidential Information" shall not include information which would
otherwise fit the definition of Confidential Information above if Executive can
conclusively establish to the Company that such information has:
(i) entered or was in the public domain other than due to the
breach by Executive or another, by act or omission, of any obligation
owed to the Company;
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(ii) become demonstrably known to Executive prior to the
Company's disclosure of such information to Executive;
(iii) become demonstrably known by or available to Executive from
a source other than the Company subsequent to the disclosure by the
Company of such information to Executive, without any breach - by act
or omission - of any obligation of confidentiality owed to the
Company, as evidenced by written documents received by Executive.
9. Post-Employment Obligations In consideration of the covenants of
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the Company herein, the Executive agrees as follows:
(a) The Executive agrees that his services hereunder are of a special,
unique, extraordinary and intellectual character, and his position with the
Company places him in a position of confidence and trust with employees,
suppliers of the Company. The Executive further agrees and acknowledges that in
the course of the Executive's employment with the Company, the Executive has
been and will be privy to Confidential Information. The Executive consequently
agrees that it is reasonable and necessary for the protection of the trade
secrets, goodwill and business of the Company that the Executive make the
covenants contained herein. Accordingly, the Executive agrees that while he is
in the employ of the Company and for a period of six months after the Date of
Termination (regardless of the reason for his ceasing to be employed by the
Company), he shall not, without the prior written consent of the Company,
directly or indirectly, anywhere within the United Sates or Canada:
(i) become Associated With any Competing Business; or
(ii) solicit, sell, call upon or induce others to solicit, sell
or call upon, directly or indirectly, any customer or prospective
customer of the Company for the purpose of inducing any such customer
or prospective customer to purchase, license or lease a product or
service of a Competing Business; or
(iii) employ, solicit for employment, or advise or recommend to
any other person that they employ or solicit for employment or
retention as a consultant, any person who is, or was at any time
within twelve (12) months prior to the Date of Termination, an
employee of, or exclusive consultant to, the Company.
(b) For purposes of this section 9, the following terms shall have the
following meanings:
"Competing Business" means that portion or segment of the business of
any person, corporation (for profit or not for profit) or other entity which
indirectly or directly provides wholesale internet telephony services, including
without limitation, (i) linking internet telephone service providers ("ITSPs")
to each other; (ii) providing billing and settlement services
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to internet telephony customers; and/or (iii) connecting participating ITSPs to
telephone numbers using a combination of internet providers and traditional
telephony for wholesale or retail customers.
"Associated With" means serving as an owner, officer, employee,
independent contractor, agent or a holder of 5% or more of any class of equity
securities of, director, trustee, member, consultant or partner of any person,
corporation (for profit or not for profit) or other entity engaged in a
Competing Business.
(c) If the Executive commits a breach or is about to commit a breach,
of any of the provisions of sections 8 or 9 hereof, the Company shall have the
right to have the provisions of this Agreement specifically enforced by any
court having equity jurisdiction without being required to post bond or other
security and without having to prove the inadequacy of the available remedies at
law, it being acknowledged and agreed that any such breach or threatened breach
will cause irreparable injury to the Company and that money damages will not
provide an adequate remedy to the Company. In addition, the Company may take
all such other actions and remedies available to them under law or in equity and
shall be entitled to such damages as they can show they have sustained by reason
of such breach.
(d) The parties acknowledge that the type and periods of restriction
imposed in the provisions of sections 8 and 9 hereof are fair and reasonable and
are reasonably required for the protection of the Company and the goodwill
associated with the business of the Company; and that the time, scope,
geographic area and other provisions of sections 8 and 9 have been specifically
negotiated by sophisticated parties and are given as an integral part of this
Agreement, it being understood that the Company's stores are located throughout
the United States and accordingly it is reasonable that the restrictive
covenants set forth herein are not limited by narrow geographic area but
generally by the location of the Company's stores. The Executive specifically
acknowledges that the restrictions contemplated by this Agreement will not
prevent him from being employed or earning a livelihood. If any of the
covenants in sections 8 or 9 hereof, or any part thereof, is hereafter construed
to be invalid or unenforceable, the same shall not affect the remainder of the
covenants or covenants, which shall be given full effect, without regard to the
invalid portions. If any of the covenants contained in sections 8 or 9 hereof,
or any part thereof, is held to be unenforceable because of the duration of such
provision or the area covered thereby, the parties agree that the court making
such determination shall have the power to reduce the duration and/or areas of
such provision and, in its reduced form, such provision shall then be
enforceable. The parties hereto intend to and hereby confer jurisdiction to
enforce the covenants contained in sections 8 or 9 hereof above upon the courts
of any state or other jurisdiction within the geographical scope of such
covenants. In the event that the courts of any one or more of such states or
other jurisdictions shall hold such covenants wholly unenforceable by reason of
the breadth of such scope or otherwise, it is the intention of the parties
hereto that such determination not bar or in any way affect the right of the
Company to the relief provided above in the courts of any other states or other
jurisdictions within the geographical scope of such covenants, as to breaches of
such covenants in such other respective states or other jurisdictions, the above
covenants as they relate to each state or other jurisdiction being, for this
purpose, severable into diverse and independent covenants.
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10. Intellectual Property
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The Executive will disclose to the Company all ideas, inventions and
business plans developed by him during the period of his employment with the
Company which relate directly or indirectly to the business of the Company,
including without limitation, any design, logo, slogan or campaign or any
process, operation, product or improvement which may be patentable or
copyrightable. The Executive agrees that all patents, licenses, copyrights,
tradenames, trademarks, service marks, advertising campaigns, promotional
campaigns, designs, logos, slogans and business plans developed or created by
the Executive in the course of his employment hereunder, either individually or
in collaboration with others, will be deemed works for hire and the sole and
absolute property of the Company. The Executive agrees, that at the Company's
request, he will take all steps necessary to secure the rights thereto to the
Company by patent, copyright or otherwise.
11. Enforceability
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The failure of any party at any time to require performance by another
party of any provision hereunder shall in no way affect the right of that party
thereafter to enforce the same, nor shall it affect any other party's right to
enforce the same, or to enforce any of the other provisions in this Agreement;
nor shall the waiver by any party of the breach of any provision hereof be taken
or held to be a waiver of any subsequent breach of such provision or as a waiver
of the provision itself.
12. Assignment
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This Agreement is a personal contract and the Executive's rights and
obligations hereunder may not be sold, transferred, assigned, pledged or
hypothecated by the Executive. The rights and obligation of the Company
hereunder shall be binding upon and run in favor of the successors and assigns
of the Company; provided, however, the Company may not assign or transfer its
rights or obligations under this Agreement unless such assignee or transferee
assumes the liabilities, obligations and duties of the Company, as contained in
this Agreement, either contractually or as a matter of law.
13. Modification
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This Agreement may not be orally canceled, changed, modified or
amended, and no cancellation, change, modification or amendment shall be
effective or binding, unless in writing and signed by the parties to this
Agreement.
14. Severability; Survival
----------------------
In the event any provision or portion of this Agreement is determined
to be invalid or unenforceable for any reason, in whole or in part, the
remaining provisions of this
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Agreement shall nevertheless be binding upon the parties with the same effect as
though the invalid or unenforceable part had been severed and deleted. The
respective rights and obligations of the parties hereunder shall survive the
termination of the Executive's employment to the extent necessary to the
intended preservation of such rights and obligations.
15. Notice
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Any notice, request, instruction or other document to be given
hereunder by any party hereto to another party shall be in writing and shall be
deemed effective (a) upon person delivery, if delivered by hand, or (b) three
days after the date of deposit in the mails, postage prepaid if mailed by
certified or registered mail, or (c) on the next business day, if sent by
facsimile transmission or prepaid overnight courier service, and in each case,
addressed as follows:
If to the Executive:
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Xxxx X. Xxxxx
000 X. Xxxxxxxx Xx.
Xxxxx, Xxxx 00000
If to the Company:
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ITXC Corp.
000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Chief Executive Officer
Any party may change the address to which notices are to be sent by giving
notice of such change of address to the other party in the manner herein
provided for giving notice.
16. Applicable Law
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This Agreement shall be governed by and construed in accordance with
the laws of the State of New Jersey, without application of conflict or law
provisions applicable herein.
17. Subsidiaries and Affiliates
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As used herein, the term "subsidiary" shall mean any corporation or
other business entity controlled directly or indirectly by the corporation or
other business entity in question, and the term "affiliate" shall mean and
include any corporation or other business entity directly or indirectly
controlling, controlled by or under common control with the corporation or other
business entity in question.
18. No Conflict
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The Executive represents and warrants that he is not subject to any
agreement, instrument, order, judgment or decree of any kind, or any other
restrictive agreement of any character, which would prevent him from entering
into this Agreement or which would be breached by the Executive upon his
performance of his duties pursuant to this Agreement.
19. Entire Agreement
----------------
This Agreement represents the entire agreement between the Company and
the Executive with respect to the subject matter hereof, and all prior
agreements, plans and arrangements relating to the employment of the Executive
the Company are nullified and superseded hereby.
20. Headings
--------
The headings contained in this Agreement are for reference purposes
only, and shall not affect the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
ITXC CORP.
By:/s/ Xxx Xxxxxx
------------------------------------
Name: Xxx Xxxxxx
Title: Chairman
Executive's Signature
/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
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