EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT ("Agreement") made and entered into as of the 21st
day of December, 1998 by and between Clariti Telecommunications International,
Ltd., a Delaware corporation ("Company"), and Xxxxxx XxXxxxxx ("Executive").
Company desires to employ Executive, and Executive desires to be employed
by Company, upon the terms and conditions outlined in this Agreement.
The Company and the Executive agree as follows:
1. Employment and Term.
Company hereby employs Executive and Executive hereby accepts employment
for a three- (3) year term commencing on January 4, 1999 ("Start Date") and
continuing until January 3, 2002 unless sooner terminated as provided for in
this Agreement ("Term of Employment"). Company and Executive have the option
to renegotiate this Agreement beyond the three-year period. Executive hereby
warrants and represents to Company that he is free to enter into this Agreement
and is not a party to any agreement, written or otherwise, or bound by any
restrictions, which limit or restrict him from entering into this Agreement or
performing the services, duties and responsibilities called for hereunder.
2. Duties.
2.1 Executive shall perform the duties of Senior Vice President of Telecom
Operations and/or such executive duties of Company and its affiliates as may
be, from time to time, requested of him by the Company's Board of Directors,
Chief Executive Officer, or President of the Company.
2.2 Executive shall devote his full professional time and best efforts to the
performance of his duties and responsibilities to advance the interests of the
Company. During the term of this Agreement (as defined in Section 1 hereof),
Executive shall not be employed, involved or otherwise engaged in, either
directly or indirectly, any other employment for gain, profit or other
pecuniary advantage, without the prior written consent of the Company. At no
time shall Executive engage in any activity that conflicts with the business of
the Company or its subsidiaries and/or its affiliates. Nothing set forth in
this section 2.2 shall prevent Executive from devoting of such Executive's time
and attention to charitable or community activities, but only to the extent
that Executive's pursuance of any outside activities does not adversely effect
the Executive's ability to perform Executive's duties to the Company.
2.3 Except for required travel on Company business or unless Company agrees
otherwise, Executive shall perform his duties and responsibilities at the
Company's principal executive offices located in the greater Philadelphia area
and such locations as are mutually agreed upon by the Executive and the Company
in order to carry out the Executive's duties hereunder.
3. Compensation.
3.1 For all duties and responsibilities to be performed by Executive
hereunder, Executive shall be entitled to receive an annual salary as set forth
below ("Base Salary"). The Base Salary, less any sums required to be withheld
by law, shall be payable in equal monthly installments or such other more
frequent regular installments as the Company may, from time to time, determine.
For purposes hereof, Base Salary shall be:
3.1.1 For the twelve-month period commencing on the Start Date, the Base
Salary shall be One Hundred and Seventy Five Thousand Dollars ($175,000).
3.1.2 For each year thereafter, the Base Salary shall be increased by an
amount determined by the Board of Directors or their designee, but in no event
less than seven percent (7%) after the first year, and eight percent (8%) after
the second year. Each percentage increase for a particular year shall be based
on the Base Salary for the immediately preceding year.
4. Fringe Benefits.
Company shall pay for or provide Executive with the following benefits:
4.1 For the first year, Executive shall be entitled to three (3) weeks paid
vacation to be used at the Executive's discretion. Thereafter, Executive shall
be entitled to four (4) weeks paid vacation during each full year of this
Agreement to be used at the Executive's discretion. Vacation time shall accrue
on a pro-rata basis during each year of this Agreement. Up to 4 weeks of
unused vacation time may be carried over to the following calendar year.
Unused vacation time in excess of 4 weeks will be forfeited at the conclusion
of each calendar year.
4.2 Health and hospitalization insurance established and maintained by the
Company for its employees. Since the Company presently does not have a health
and hospitalization insurance plan in effect, Company shall reimburse Executive
for all COBRA payments made by Executive to his previous employer for health
and hospitalization coverage for Executive and his family. Thereafter, Company
shall either secure and maintain health and hospitalization insurance for
Executive and his dependents, or reimburse Executive for coverage comparable to
the health and hospitalization insurance coverage afforded to other comparable
Company executives and their immediate family.
4.3 Such other employee benefits maintained by the Company for its senior
executives and key management employees, including all pension, profit sharing,
retirement, stock bonus and stock option plans, to the extent Executive is
eligible to participate pursuant to the terms and conditions of such plans.
4.4 The Company will select and pay the cost of temporary housing and travel
expenses for Executive in and to the Philadelphia area during the term of this
Agreement.
5. Stock Options.
5.1 As part of Executive's compensation for services to be rendered hereunder,
Executive shall have the right and option to purchase from Company voting
common stock in the Company ("Option"). The total number of shares available
to Executive under this Option is Three Hundred Thousand Shares (300,000) at a
purchase price of Two Dollars and Seventy Five Cents ($2.75) per share. The
Option Shares are available for purchase in installments as listed in Column A
below and each installment shall become vested on the corresponding date listed
in Column B, as follows:
Column A Column B
Number of Shares Date Option Shares
Available for Purchase Become Vested
---------------------- ------------------------
i) 75,000 First day of Executive's
employment ("Start Date")
ii) 100,000 January 3, 2000
iii) 125,000 January 3, 2001
In order for the Option Shares to become vested as provided for above,
Executive must be employed by the Company under the terms of this Agreement as
of the vesting date set forth in Column B above.
5.2 Except as otherwise provided for below, the term of the Option granted
shall remain in effect for ten (10) years from the Start Date. If the
Executive's employment with the Company is terminated by the Company for Cause,
or if Executive resigns without Good Reason, (as defined in this Agreement),
the Executive's right to exercise vested Option Shares shall cease and become
null and void thirty (30) days after the date employment is terminated.
Further, the Executive's rights to exercise the Options granted herein or
vesting of such Options are reflected on an Option form attached hereto as
Exhibit "A". All unvested Option Shares will terminate immediately as of the
date of such termination of employment.
5.3 In the event the Company receives, accepts and consummates a tender offer
for all of its outstanding common stock or a significant portion so as to
materially change control of the Company prior to the vesting of the Option
Shares, the vesting rights shall be accelerated so as to allow Executive to
exercise the Option to purchase all of the Option Shares immediately prior to
the consummation of such tender offer.
5.4 The purchase price of the Option Shares shall be paid in full upon the
exercise of the Option, and Company shall not be required to deliver
certificates for such Option Shares until payment has been made. In addition,
at the time of payment of the purchase price for such Option Shares, Executive
shall be responsible for all applicable federal and state withholding or other
employment taxes, and any other fees resulting from the exercise of the
Executive.
5.5 Each share of Option Stock purchased pursuant to the terms hereof shall
carry all appropriate registration and/or restrictions on sale and notices as
determined from time to time by Company's securities counsel. Executive shall
cooperate with Company and Company's counsel in complying with all applicable
securities laws. Company agrees to register the common stock issuable upon
exercise of the Stock Options at the same time as other Company Executives'
options, which will be as soon as reasonably practicable.
5.6 The exercise price and the number of shares of Common Stock issuable upon
the exercise of Options are subject to equitable adjustment to take into
account stock dividends, stock splits, recapitalizations and other dilutive
events, all as reasonably determined in good faith by the Board of Directors.
6. Termination of Employment.
The employment of Executive and Company's liability and obligations
hereunder shall terminate as follows:
6.1 This Agreement shall terminate immediately upon the death of Executive.
In such event, Company shall pay to such person as Executive may designate in a
written notice filed with the Company, or if no such person shall be
designated, to Executive's estate, a lump sum death benefit in an amount equal
to twelve (12) months of Executive's Base Salary as in effect on the date of
Executive's death.
6.2 This Agreement shall terminate immediately upon the Disability of
Executive. Disability shall exist if, due to a mental or physical condition,
Executive is determined to be unable to perform his duties and responsibilities
hereunder for a continuous period of two (2) months. Disability shall be
conclusively established by written certification by two (2) licensed,
disinterested physicians selected as mutually agreed upon between Company and
Executive. In the event the two (2) physicians disagree, a third physician
shall be selected by the two physicians to break such impasse. The costs
associated with the determination of Disability shall be borne equally between
Company and Executive. In the event of Disability, Executive shall be entitled
to receive his Base Salary in accordance with Section 3 for a period of six (6)
months following the onset of Disability.
6.3 The Company may discharge the Executive for Cause and thereby immediately
terminate his employment under this Agreement. For purposes of this Agreement,
Company shall have "Cause" to terminate the Executive's employment if the
Executive, in the reasonable and prudent judgement of the Company:
6.3.1 Willfully fails to perform any reasonable directive of the
Company's Board of Directors, Chief Executive Officer, or President.
6.3.2 Materially breaches any of the agreements, duties, responsibilities
or obligations under this Agreement.
6.3.3 Embezzles or converts to his own use any funds or property of the
Company or any client or customer of the Company.
6.3.4 Is convicted of a felony or any crime involving larceny,
embezzlement or moral turpitude.
6.4 In the event that Executive's employment is terminated by the Company
without Cause, as defined in Section 6.3, above, for a reason other than death
or Disability, or Executive shall resign for "Good Reason", as defined below,
then, in such event:
6.4.1 Executive's Base Salary shall continue to be paid for a period of
up to six (6) months, based on the following formula ("Payment Period"):
6.4.1.1 If there is more than six (6) months remaining on the
Agreement at the time of employment termination, then Executive's Base Salary
shall continue to be paid for exactly six (6) months.
6.4.1.2 If there is six (6) months or less than six (6) months
remaining on the Agreement at the time of employment termination, then
Executive's Base Salary shall continue to be paid for the balance of the
Agreement.
6.4.2 Company shall maintain in effect during the Payment Period, for the
continued benefit of the Executive, all of the employee benefit plans and
programs in which the Executive was entitled to participate immediately prior
to the Executive's termination as long as continued eligibility is possible
under the general terms and provisions of such benefit plans and programs.
For purposes of this Section 6.4, "Good Reason" shall mean:
(i) Failure by the Company to comply with the provisions of this
Agreement.
(ii) Any compelling personal circumstance, which, in the mutual
discretion of the Executive and the Board of Directors, makes the Executive's
continued employment hereunder impossible, or inappropriate. Any material
change of executive's duties or responsibilities within the Company shall be
considered a compelling personal circumstance.
6.5 Executive may voluntarily terminate his employment under this Agreement
without Good Reason, as defined in Section 6.4 above, by giving the Company
ninety (90) days prior written notice. Upon the expiration of such ninety (90)
day period, Executive's employment under this Agreement shall terminate, and
Company shall have no further obligation or liabilities under this Agreement
except to pay the Executive the portion, if any, that remains unpaid of the
Base Salary and unpaid accrued prorated vacation for the period up to the date
of termination. Resignation as defined herein must be in written form to the
President, signed by the Executive.
7. Proprietary Information.
7.1 Executive acknowledges that all lists, books, records, literature,
products and any other materials owned by Company or its subsidiaries and/or
affiliates or used by them in connection with the conduct of their businesses,
shall at all times remain the property of Company and its subsidiaries and/or
affiliates. Upon termination of employment hereunder, irrespective of the
time, manner or cause of termination, Executive will surrender to Company all
such lists, books, records, literature, products and other materials in his
possession and/or control.
7.2 Executive acknowledges that Company and its subsidiaries own a variety of
proprietary information, which is confidential, valuable, and essential to the
ongoing conduct of the Company and its subsidiaries businesses. The Executive
further recognizes that this proprietary information may include, but is not
limited to, product plans, source codes, identities of new products, planned
product enhancements, profits, profit margins, research and development
projects, pricing, technical specifications, manufacturing techniques, test
procedures, bid strategies, business strategies, and information concerning
current, former, or prospective customers, business plans, merger and
acquisition targets and strategies, business and financial software, financial
and business contacts or relationships and the Executive recognizes that
Company and its subsidiaries proprietary information may appear in written form
or in other tangible media which are not labeled or otherwise identified as
being "confidential" or "proprietary" (the above proprietary information is
hereinafter referred to as "Confidential Property"). Confidential Property,
however, shall not include any information which is approved for release by
written authorization of the Company. With respect to Confidential Property,
Executive, during the course of his employment and following the termination of
his employment for any reason, shall:
7.2.1 Retain such information in confidence and refrain from publishing,
making available or otherwise disclosing such information to any third party
except with the prior written consent of the Chairman, CEO or President of the
Company. This obligation will survive Executive's employment with the Company.
7.2.2 Will use all reasonable precautions to assure that Company's
proprietary information is properly protected and disclosed only to other
authorized personnel within the Company for proper use thereby. Executive
understands that the Company and its subsidiary operations are required to
adhere to federal securities laws as they relate to disclosure of Company
information to the public and agrees to abide by the requirements related
thereto.
7.2.3 Refrain from making any copies of written material or tangible
objects embodying such information, except as (and only to the extent that)
such copies are required in the performance of Executive's duties for the
Company.
7.3 During the term of this Agreement, Company has an ownership right to all
of Executive's patents, ideas, inventions, discoveries, and enhancements which
relate to the Business of the Company (defined below) or which are derived from
the Company's property or proprietary information.
7.3.1 The "Business of the Company" referred to in this Agreement shall
mean all businesses of Company and its subsidiaries and/or its affiliates,
whether presently conducted or hereafter engaged in or reasonably contemplated
or envisioned by Company. The Business of the Company includes, but is not
limited to, the business of developing and marketing communication products and
services.
7.3.2 Executive further acknowledges that all such Confidential Property
is owned solely by Company, shall remain the exclusive property of Company and
that the unauthorized disclosure or use of such Confidential Property by
Executive will cause irreparable harm to Company. Executive agrees to use or
cause such Confidential Property to be used only in a manner consistent with
the terms and conditions of this Agreement, and not otherwise for the use or
advantage of Executive or others. Executive shall not communicate or disclose
any Confidential Property to any third persons, except to the extent required
by law, to enforce the terms of this Agreement.
8.Miscellaneous.
8.1 Any notice, demand or communication required or permitted under this
Agreement shall be in writing and shall be sufficient when delivered
personally, or three (3) days after mailing by registered or certified mail,
return receipt requested, or the next day if sent by nationally recognized
overnight courier with proof of delivery, in each case postage prepaid,
addressed as follows:
If to the Company:
Clariti Telecommunications International, Ltd.
0000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn.: Xxxxx X. Xxxxxxx, Chairman/CEO
If to the Executive:
Xxx XxXxxxxx
000 Xxxxxx Xxxx Xx.
Xxxxx Xxxxxxx, XX 00000
The foregoing addressees may be changed at any time so long as notice is
provided.
8.2 This Agreement constitutes the entire understanding and agreement between
Company and Executive regarding its subject matter and supersedes all prior
negotiations and agreements, whether oral or written, between them with respect
to its subject matter. This Agreement may not be modified except by a written
agreement signed by the Executive and the Company.
8.3 This Agreement shall be binding upon and inure to the benefit of the
parties and their respective heirs, executors, successors and assigns, except
that the Executive may not assign this Agreement.
8.4 No waiver by either party of any condition or of the breach by the other
of any term or covenant contained in this Agreement, whether by conduct or
otherwise, in any one or more instances shall be deemed or construed as a
further or continuing waiver of any such condition or breach or a waiver of any
other condition, or the breach of any other term or covenant set forth in this
Agreement. Moreover, the failure of either party to exercise any right
hereunder shall not bar the later exercise thereof.
8.5 This Agreement shall be governed by the statutes and common laws of the
Commonwealth of Pennsylvania, excluding its choice of law statutes or common
law.
8.6 The headings of the various sections and paragraphs have been included
herein for convenience only and shall not be construed in interpreting this
Agreement.
8.7 If any provision of this Agreement shall be held invalid or unenforceable,
the remainder of this Agreement shall, nevertheless, remain in full force and
effect. If any provision is held invalid or unenforceable with respect to
particular circumstances, it shall, nevertheless, remain in full force and
effect in all other circumstances.
8.8 This Agreement may be executed in several counterparts, each of which
shall be deemed to be an original but all of which together will constitute one
and the same instrument.
IN WITNESS WHEREOF, this Agreement has been executed by the Executive and
on behalf of the Company by its duly authorized officer on the date first above
written.
ATTEST:
By: s/Xxxxxx Xxxxxxxxxx Date: January 3, 1999
------------------- ---------------
Xxxxxx Xxxxxxxxxx
Secretary, Clariti Telecommunications
CLARITI TELECOMMUNICATIONS INTERNATIONAL, LTD.:
By: s/ Xxxxx X. Xxxxxxx Date: January 3, 1999
------------------- ---------------
Xxxxx X. Xxxxxxx
Chairman/CEO, Clariti Telecommunications
EXECUTIVE:
By: s/ Xxx XxXxxxxx Date: January 3, 1999
------------------- ---------------
Xxx XxXxxxxx
