EXHIBIT 10.30
THIS AGREEMENT ("Agreement") is made and entered into this 9th day of
April, 1999, by and between Xxxxx X. Xxxxxxxx, a married man, President of
SATLINK 3000, Inc., a Nevada Corporation ("SATLINK"), 0000 X. 00xx Xxxxxx,
Xxxxxxx, XX 00000 (hereinafter "Xxxxxxxx"), and IPVoice COMMUNICATIONS, INC., a
Nevada corporation (the "Company" or "IPVoice"), with offices at 0000 Xxxxx
Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000 (hereinafter collectively
referred to as the "Parties").
WITNESSETH:
WHEREAS, SATLINK, and Xxxxxxxx on behalf of SATLINK, the shareholders
of SATLINK and Company are presently engaged in negotiations for the exchange of
stock of SATLINK for shares of the Company pursuant to that certain Agreement
For The Exchange Of Common Stock (the "Exchange Agreement") by and between
IPVoice, as Issuer, and SATLINK and its shareholders dated April 7, 1999; and
WHEREAS, the Company desires that, as part of the contemplated
transaction under the Exchange Agreement, Xxxxxxxx assist with the acquisition
and transition of SATLINK by and into the Company, relinquish his shares in
SATLINK, and remain with and be employed by the Company pursuant to the terms
and conditions set forth herein; and
WHEREAS, Xxxxxxxx desires to assist the Company with the acquisition
and transition of SATLINK by and into the company to relinquish his shares in
SATLINK and to be employed upon the successful consummation of the acquisition
of SATLINK by the Company as contemplated under the terms of the Exchange
Agreement pursuant to the terms hereof as to be more specifically delineated in
definitive agreements and documents to be entered into by the Parties
incorporating the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions contained herein and for other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, Xxxxxxxx and the Company
agree as follows:
ARTICLE I
TERM
1. Term: The Company hereby engages and employs Xxxxxxxx and Xxxxxxxx hereby
accepts, for and in consideration of the compensation, stock grant, stock
options, and benefits herein provided, the Position of Chief Financial Officer
of the Company from the date of the Closing under the Exchange Agreement (as
defined therein) until the ^ (third /s/ BW, /s/ PS) anniversary thereof, unless
sooner terminated pursuant to the parties' rights to terminate to be set forth
in more definitive agreements between the Parties, including but not limited to
a definitive Employment Agreement ("Employment Agreement").
ARTICLE II
COMPANY'S COVENANTS
2. The Company shall provide Xxxxxxxx with the following compensation,
remuneration and benefits in consideration of his services in assisting in the
acquisition and transition of SATLINK by and into the Company, relinquishment
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of his shares in SATLINK, and for his duties as an officer of the Company after
the Closing under the Exchange Agreement:
(A) A beginning Monthly base salary of $5,000.00 "net" after all deductions,
withholdings, etc., which base shall be increased to an annual base salary of a
minimum of $140,000.00 on the earlier to occur of August 15, 1999, or Company
Board of Directors' approval, which shall not be unreasonably withheld, as more
specifically set forth in the Employment Agreement to be entered into by the
Parties on or after the Closing of the Exchange Agreement ("Employment
Agreement").
(B) Additional perquisites and benefits such as a company automobile, 401K Plan,
deferred compensation plan, medical/dental plans, clubs, memberships and similar
forms of compensation which are in effect for other officer/key employees or
become available and/or are approved by the Board of the Company, as more
specifically set forth in the Employment Agreement.
(C) Maintenance of Xxxxxxxx'x current SATLINK medical insurance, life insurance,
long distance and cellular telephone reimbursement unless and until a more
favorable policy is adopted by the Company for such benefits, the latter of
which shall likewise be provided to Xxxxxxxx, as more specifically set forth in
the Employment Agreement.
(D) Issuance of a non-refundable and non-revocable stock grant to Xxxxxxxx for
200,000 shares of the Company's effective on the Closing under the Exchange
Agreement and delivered to Xxxxxxxx by the Company on the earlier of the first
anniversary date thereof or Xxxxxxxx'x termination hereunder, regardless of
whether such termination is the result of action by Xxxxxxxx or the Company.
Such stock grant shall be deemed earned upon the Closing under the Exchange
Agreement ("Stock Grant") as more specifically set forth in the Stock Grant
Agreement to be entered into by and between the Parties on or after the Closing
under the Exchange Agreement ("Stock Grant Agreement").
(E) Issuance of stock options pursuant to a more definitive Stock Option
Agreement which shall be executed by the Company and Xxxxxxxx on or after the
Closing of the Exchange Agreement whereby Xxxxxxxx shall be issued options for a
minimum of 200,000 shares of the Company's common stock, vested over three
years,, exercisable at $1.00 per share, provided there has been execution by
Xxxxxxxx of his assigned duties, as set forth in his written job description
("Stock Option Agreement").
(F) Issuance of a Company stock bonus for a minimum of 100,000 shares of the
Company's common stock, payable by the Company to Xxxxxxxx, resulting from the
successful endeavors of the Company with Netgenie and/or Xxx Giannoit, the share
amount to be determined by the Company's Board, which shall be timely and not
unreasonably withheld ("Netgenie Bonus"). Such stock bonus shall be effective
and deemed earned upon the closing under the Exchange Agreement earlier of the
first anniversary date thereof or Xxxxxxxx'x termination hereunder, regardless
of whether such termination is the result of action by Xxxxxxxx or the Company,
as more specifically set forth in a Bonus Agreement to be entered into by and
between the Parties on or after the Closing under the Exchange Agreement.
("Bonus Agreement").
(G) A similar Company stock and/or cash bonus upon the successful consummation
of transactions brought about by Xxxxxxxx'x identification/efforts effective
upon Board approval, which shall be timely and not unreasonably withheld
("Finder's Bonus").
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(H) Xxxxxxxx to remain headquartered in his present location in Phoenix until a
final decision has been made by the Company as to permanent headquarters for the
Company.
(I) Upon such final decision as to the Company headquarters, the Company shall
pay for and/or reimburse Xxxxxxxx for all direct and indirect costs and expenses
of relocation, including but not limited to interim housing expenses of
relocation, including but not limited to interim housing expenses while securing
a new home, moving expenses in accordance with a budget approved by the
Company's Board; and
(J) Annually a four (4) week paid vacation.
ARTICLE III
TERMINATION
3.1 Termination by Company: Upon the occurrence of any of the events
set forth below, this Agreement shall, at the election of the Company, be
terminated prior to the end of the Term upon written notice of such termination
from Company to Xxxxxxxx :
(A) If Xxxxxxxx should fail to keep, observe or perform any covenant,
agreement, term or provision of his Employment Agreement; or
(B) Upon the negligence, fraud or willful misconduct of the Xxxxxxxx.
3.2 Termination Fee: In the event the Company terminates this Agreement
for reasons other than (A) or (B) setforth herein and above, and subject to
Xxxxxxxx'x faithful Performance of his duties to the Company, the Company shall
pay an amount ("Termination Fee") to Xxxxxxxx equal to one (1) year's annual
salary (calculated on the basis of the immediately preceding Operating Period),
if such termination occurs during the first three (3) years of the Term, as more
specifically set forth in the Employment Agreement to be entered into by the
Parties on or after the Closing of the Exchange Agreement.
ARTICLE IV
TRANSFERABILITY
4.1 Personal Services: This Agreement is considered to be a personal
service contract with respect to Xxxxxxxx. Accordingly, except as expressly set
forth herein to the contrary, Xxxxxxxx shall not have the right to assign,
transfer or devolve upon any other person or entity, by operation of law or
otherwise, any of the rights in and to or obligations and duties under this
Agreement without the prior written consent of the Company. No assignment,
whether requiring the Company's consent or not, shall relieve or release
Xxxxxxxx of any obligations, duties or liabilities hereunder and the Company's
consent to any assignment shall not be deemed to be a consent to any subsequent
assignment.
4.2 Company: The Company may assign, transfer and convey this Agreement
and its rights, title and interests therein to any successor or assign, and in
such event, upon the transferee assuming the Company's obligations hereunder no
further liability or obligation shall thereafter accrue against the Company
hereunder.
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ARTICLE V
REMEDIES
5.1 Integration: This Agreement and the Exchange Agreement are integrated each
with the other, provided however, that no default under this Agreement nor the
agreements to be entered into by the Parties in connection herewith, as
contemplated herein, shall excuse performance by the Company of its obligations
under the Exchange Agreement, which shall continue to remain in full force and
legal effect and survive the termination or cancellation of this Agreement. A
default by the Company under this Agreement may be deemed by Xxxxxxxx a default
under the Exchange Agreement and, in such event, Xxxxxxxx, at his sole
discretion, shall have all rights and remedies provided under each Agreement
against the Company.
5.2 Injunction: The parties hereto understand, accept and agree that a default
and/or breach by the Company hereunder will result in irreparable harm to
Xxxxxxxx due to the loss of his present position with SATLINK, his shares
therein and the merger of SATLINK into the Company, and that Xxxxxxxx shall have
the right, remedy and authority to seek and obtain a mandatory injunction
directing the Company to perform its obligations to Xxxxxxxx hereunder without
the requirement of posting a bond, making a showing of irreparable harm or
probable success of prevailing on the merits of such injunction proceeding.
5.3 Liquidated Damages: The parties hereto agree that it would be impossible to
quantify monetarily the damages that would be suffered by Xxxxxxxx in the event
of the breach by the Company of any one or more of its obligations to Xxxxxxxx
hereunder and therefore agree that in lieu of his injunctive remedies provided
for herein above, Xxxxxxxx may elect, at his sole discretion, to be compensated
by the Company for such breach in the liquidated damage amount of $200,000.00
which each of the parties hereto mutually agree is a fair and reasonable amount
to compensate Xxxxxxxx for the Company's breach and Xxxxxxxx'x change of
position in reliance upon the Company's promises, agreements and covenants
herein.
ARTICLE VI
MISCELLANEOUS
6.1 Notices: Any notice, communication or election to be given under the terms
of this Agreement shall be in writing and delivered in person or deposited,
certified or registered, return receipt requested, in the United States Mail,
postage prepaid, addressed as follows:
If to Company: IPVoice Communications, Inc.
Attention:
Address first set forth herein and above
If to Xxxxxxxx: Xxxxx X. Xxxxxxxx
Address first set forth herein and above
or to such other address as either party may hereafter designate by notice
hereunder. Such notices shall be considered as given or received, as the case
may be, immediately if delivered in person or seventy-two (72) hours after
deposit in the United States Mail.
6.2 Complete Agreement: This Agreement constitutes and embodies the full and
complete understanding of the parties hereto with respect to the employment and
compensation of Xxxxxxxx by the Company, and EXCEPT FOR the Exchange Agreement
provided for herein and above, supersedes all prior or contemporaneous
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understandings, agreements or representations, whether oral or in writing. This
Agreement may only be amended, modified or changed by written instrument
executed by both parties hereto.
6.3 Governing Law: This Agreement shall be governed by, enforced and construed
in accordance with the laws of the State of Arizona. The parties hereto agree
that the proper jurisdiction and venue for any litigation proceeding arising
hereunder shall be the Maricopa County Superior Court for the State of Arizona
or the Federal District Court for the District of Arizona (Phoenix Division).
6.4 Headings: The Article and Section headings used herein are for convenience
and reference only and are not intended to define, limit or describe the scope
or intent of any provisions of this Agreement.
6.5 Assigns: Subject tot he provisions of Article IV, this Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective
successors and assigns.
6.6 Attorneys' Fees: In the event that the Company defaults under or otherwise
breaches this Agreement, Xxxxxxxx shall have the right to recover and otherwise
be reimbursed for any and all costs and expense incurred in connection with
settling and litigating such matter hereunder, including but not limited to,
attorneys' fees, experts and witnesses' fees, court costs and disbursements.
6.7 Waiver: No waiver by Xxxxxxxx of any breach by the Company of any of its
obligations, agreements or covenants hereunder shall be a waiver of any
subsequent breach of any obligation, agreement or covenant, nor shall any
forbearance by Xxxxxxxx to seek a remedy for any breach be a waiver by Xxxxxxxx
of his rights and remedies with respect to that or any other breach.
6.8 Invalid, Illegal or Unenforceable Provisions: In case any provision of the
Agreement shall for any reason be held invalid, illegal or unenforceable in any
respect, this Agreement shall be construed as if such provision had never been
contained herein; provided, however, that this Agreement will be construed in
such a manner so as to enable Xxxxxxxx to obtain the practical realization of
all benefits and rights contemplated to be acquired and/or granted hereunder.
6.9 Execution of Documents; Actions by Parties: The Company shall execute all
documents and do all things as may be necessary to accomplish the objectives of
this Agreement. This Agreement may be executed by the parties hereto in
counterpart originals, all of which shall constitute but one instrument.
6.10 Survival: This Agreement shall survive and not be merged in the execution
and delivery of any other documents and shall specifically survive the
consummation and/or fulfillment of the Exchange Agreement. The provisions hereof
are cumulative with those contained in the Exchange Agreement or any other
documents executed or delivered in connection therewith.
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IN WITNESS WHEREOF, the parties, through their duly authorized representatives
as appropriate, have executed this Agreement in multiple counterparts, each of
which shall have the force and effect of any original, as of the date and year
first above written.
XXXXX X. XXXXXXXX
/s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
IPVOICE COMMUNICATIONS, INC.,
A Nevada Corporation
By:/s/ Xxxxxxx X. Will
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