EMPLOYMENT AGREEMENT
This
EMPLOYMENT AGREEMENT (as amended, supplemented or extended from time to time,
this “Agreement”) is
entered into as of April 6, 2009 (the “Effective Date”), by and
between WorldGate Service, Inc. (the “Company”) and Xxxxx XxXxxxxxxx
(“Employee”).
The
Employee has been employed by the Company as its Vice President Sales and
Marketing since September 1, 2005. The Company has just concluded the
private placement of a controlling interest in the Company, and wishes to retain
the Employee on the terms and conditions contained herein. The
Employee desires to be so retained.
NOW THEREFORE, in
consideration of the mutual covenants contained herein, and in that certain
Non-Disclosure, Non-Circumvention and Non-Competition Agreement that the
employee will sign simultaneously with this Agreement, and for other valuable
consideration, the receipt and adequacy of which are hereby acknowledged, and
intending to be legally bound hereby, the parties do hereby agree as
follows:
1.
Employment
and Employment Period.
1.1. Position
and Duties.
(a) Subject
to the terms and conditions of this Agreement, the Company agrees to employ the
Employee as Vice President Sales and Marketing (the “Position”), and
the Employee agrees to remain in the employ of the Company, during the
Employment Period (as defined in Section
1.2).
(b) The
Employee’s job duties include managing all sales and marketing functions of the
Company and all
other duties as reasonably requested by the Company consistent with that or any
future position of the Employee, which the Employee may accept. The Employee
reports to the Company’s CEO and Chairman of the Board of
Directors.
(c) At
all times during the Employment Period, the Employee agrees to: (i) perform all
services related to the Employee’s employment hereunder faithfully and
diligently and to discharge the responsibilities thereof to the best of the
Employee’s ability; (ii) devote full business time and attention and energies to
the duties of the Employee’s employment under this Agreement; and (iii) use the
Employee’s reasonable best efforts to promote the business of
Company.
1.2. Employment
Period. The term
“Employment Period”
shall mean the period beginning on the Effective Date and shall continue for one
(1) year from that date (the “Expiration Date”). The Employee's
employment with the Company shall be at-will and may be terminated for any legal
reason and at any time by the Company or the Employee.
2.
Compensation.
2.1. Salary. During
the Employment Period, in consideration for the services to be rendered
hereunder, and subject to the terms and conditions of this Agreement, the
Company hereby agrees to pay the Employee, in accordance with its normal
practices, a yearly salary of $190,383 during the Employment
Period (calculated from the date hereof) (the “Annual Base
Salary”). All compensation shall be subject to all applicable
tax withholding and similar requirements under applicable law.
2.2. Incentive
Compensation.
(a) Cash
Bonus Incentive Compensation. During the Employment Period,
the Employee shall be eligible to earn performance bonuses as set forth below
(“Cash Bonus”). The Employee’s entitlement to these Cash Bonuses
shall be based upon individual performance objectives tailored specifically to
the Employee’s position, which shall be set by the Company’s Compensation
Committee and approved by the Company’s Board of Directors. A Cash
Bonus shall be a percentage of the Employee’s Annual Base Salary, calculated by
dividing the Employee’s Annual Base Salary by four, and multiplying that number
by 35% (the “Target Quarterly Bonus Amount”). The Cash Bonus shall be
payable quarterly, promptly after the Company’s results for that quarter are
announced, but in any event during the quarter immediately following the quarter
in which the Cash Bonus is earned, and, with respect to a Cash Bonus earned in
the fourth quarter of a calendar year, on or before March 15 of the following
calendar year. In the event that the Employee’s employment hereunder
terminates involuntarily for any reason other than cause, as defined in section
4.1, below, a Cash Bonus shall, if earned and accrued, be apportioned on a per
diem basis and paid to the Employee upon his termination. The Cash Bonus shall
be paid on the following schedule:
1Q
2009 0%
of the Employee’s Target Quarterly Bonus Amount, regardless if or as
earned
2Q
2009 100%
of the Employee’s Target Quarterly Bonus Amount, guaranteed, regardless if or as
earned
3Q
2009 50%
of the Employee’s Target Quarterly Bonus Amount, guaranteed, regardless if or as
earned; the remainder only if and as earned, no guaranty
4Q
2009 100%
of the Employee’s Target Quarterly Bonus Amount, only if and as earned, no
guaranty
(b) Stock
Option Plan. The Board of Directors intends, as soon as is
practically possible after the Effective Date of this Agreement, to approve and
adopt a new 2009 WorldGate Employee Stock Option Plan. The Board
anticipates that this new employee stock option plan will include options that
vest over four years, except in the case where the Employee is terminated before
any of his options have yet vested, in which case he will be given vesting
credit for 25% of his options upon his termination, and which will have a per
share strike price to be set by the Board based on their fair market value on
the date of their grant. As and when such plan is approved, adopted
and implemented, the Employee will be awarded 900,000 options to purchase the
Company’s shares under this plan.
3.
Benefits.
3.1. Generally. During the
Employment Period and according to the terms of the relevant plan documents, the
Employee shall be eligible to participate in any medical, prescription, dental,
life insurance, disability or other welfare benefit plans or policies and any
pension or retirement plans which the Company currently has in place or may
hereafter make available generally to employees having comparable
responsibilities and duties to the Employee, but the Company will not be
required to establish any such program or plan. The Employee shall be
entitled to annual vacation and to reimbursement of expenses, each in accordance
with the Company’s policies in effect from time to time with respect to
employees having comparable responsibilities and duties. With respect
to any expense reimbursements provided hereunder which are not otherwise
excludible from the Employee’s gross taxable income, to the extent
required to comply with of Section 409A of the Internal Revenue Code of 1986, as
amended, and the regulations of the Treasury and applicable guidance of the
Internal Revenue Service thereunder (together, “Section 409A”), no reimbursement
of expenses incurred by the Employee during any taxable year of the Employee
shall be made after the last day of the following taxable year, the right to
reimbursement of any such expenses shall not be subject to liquidation or
exchange for another benefit, and the amount of expenses eligible for
reimbursement during any taxable year of the Employee may not affect the
expenses eligible for reimbursement available in any other taxable
year.
Page 2 of
7
4.
Termination of
Employment.
4.1. Termination
for Cause. This Agreement
and the Employee’s employment with the Company may be terminated at any time by
The Company for Cause by written notice to Employee specifying in reasonable
detail the reasons therefor. For purposes of this Agreement, “Cause” shall mean:
(a) the Employee has been convicted of or pled guilty or no contest
to (i) any criminal offence which is classified as a felony (or its equivalent
under the laws or regulations of any country or political subdivision thereof),
or (ii) any other criminal offense which involves a violation of federal or
state securities laws or regulations (or equivalent laws or regulations of any
country or political subdivision thereof), embezzlement, fraud, material
wrongful taking or material misappropriation of property or theft; (b)
persistent and willful failure to perform in a manner consistent with the
Employee’s past performance a substantial portion of the Employee’s duties and
responsibilities, which failure continues more than ten (10) days after written
notice is given to the Employee by the Company; (c) gross negligence or willful
misconduct of the Employee in the performance of his or her duties to the
material detriment of the Company or any affiliate or shareholder of the
Company; (d) breach of any of the covenants, terms and provisions of this
Agreement; and (e) breach of trust or breach of fiduciary duty owed to the
Company, its shareholders, directors, customers, affiliates, subsidiaries or
members. Nothing in this section or elsewhere in this Agreement shall
be construed to mean that the Company cannot alter, change, whether such might
be perceived as improvement or diminishment, the Employee’s duties and
responsibilities hereunder, nor as any obligation on the art of the Employee to
accept any such change.
4.2. Death or
Permanent Disability of Employee. This Agreement and the
Employee’s employment with the Company shall terminate upon the Employee’s
death. In addition, the Company shall have the right to terminate
this Agreement and the Employee’s employment hereunder if the Company determines
in good faith that the Disability of Employee, as defined below, has occurred
during the Employment Period. In the event of the Disability of the
Employee, the Employee’s employment hereunder shall terminate effective on the
30th day after the Employee’s receipt of written notice from the Company
notifying the Employee of the Company’s intention to terminate this Agreement
and the Employee’s employment hereunder on account of such Disability; provided that, within
the 30-day period after such receipt, the Employee shall not have returned to
full-time performance of the Employee’s duties and
responsibilities. For purposes of this Agreement, “Disability” shall mean the
inability of the Employee to perform one or more of the primary duties of the
Vice President Sales and Marketing or other comparable
position as a result of incapacity of the Employee, despite any reasonable
accommodation required by law, due to bodily injury or disease or any other
mental or physical illness, which inability continues for a period of thirty
(30) days within any six month period.
4.3. Termination
Without Cause or Voluntary Resignation. The Company, by written
notice to Employee, shall have the right to terminate this Agreement and the
Employee’s employment with the Company at any time without Cause, for any reason
or for no reason, subject to Section 4.4
hereof. The Employee, by fifteen (15) days’ written notice to the
Company, shall have the right to terminate the Employee’s employment for any
reason or for no reason.
Page 3 of
7
4.4. Compensation
Upon Termination. If
the Company terminates the Employee's employment without Cause at any time after
the Effective Date, the Company will, contingent upon the Employee executing and
delivering to the Company a written general release of claims against the
Company in a form acceptable to the Company which will become irrevocable
by its terms on or before the 60th day
following the Employee’s ‘Separation from Service’, within the meaning of
Internal Revenue Code Section 409A, from the Company and will pay the Employee
severance in the amount of the greater of (a) the Employee’s monthly base salary
amount, plus any Cash Bonus amounts, including, for clarity, all guaranteed
amounts, earned or accrued through the date of the Employee’s termination
multiplied by the number of months left until the Expiration Date, or (b) the
Employee’s monthly base salary amount, plus any Cash Bonus amounts,
including, for clarity, all guaranteed amounts, earned or accrued through the
date of the Employee’s termination, multiplied by six. All severance payments
shall be made as and when the Employee’s salary payments for the same periods
would have been made, and shall be subject to identical withholdings as would
have been base salary and cash bonuses. The first severance payment to the
Employee shall be made following the date on which the release becomes
effective, and no later than the 75th day
following that date, and shall include a ‘catch-up’ payment for all amounts
which would have otherwise been paid during such period. In addition
to the severance payments, the Company shall, during the time severance payments
are made, retain the Employee as part of its insured group covered by the
Company’s welfare benefits providers, and continue to pay the Company portion of
the insurance premiums for such benefits, and continue to deduct the employee’s
portion from all severance paid. COBRA notice and coverage for the
employee would thus begin upon cessation of the severance
payments. Notwithstanding any other provision of this Agreement, if
any amount payable to the Employee under this Agreement on account of the
Employee’s Separation from Service constitutes deferred compensation within the
meaning of and subject to Section 409A, and the Employee is a “Specified
Employee” of the Company on the date of his Separation from Service, then
payment of such amount shall be delayed until the first business day that is at
least six (6) months after the date on which the Employee’s Separation from
Service occurs. For these purposes, “Specified Employee” has the
meaning given to that term in Internal Revenue Code Section 409A(a)(2)(B)(i) and
Treas. Reg. 1.409A-1(i). Notwithstanding the foregoing, such six
month delay of payments shall not apply to any payments or benefits that are not
subject to Section 409A, including the following: (a) any severance or other
payments that qualify as “short term deferral” payments under Treas. Reg.
Section 1.409A-1(b)(4); and (b) any remaining severance or other payments paid
after the Employee’s Separation from Service to the extent (i) that the dollar
amount of such payments does not exceed two (2) times the lesser of (x) the
Employee’s annualized compensation (based on the Employee’s annual rate of pay
for the calendar year preceding the calendar year in which the Separation from
Service occurs, adjusted to reflect any increase during such calendar year which
was expected to continue indefinitely had the Employee’s Separation from Service
not occurred) and (y) the maximum amount of compensation that may be taken into
account under a qualified plan pursuant to Section 401(a)(17) of the Internal
Revenue Code for the calendar year in which the Separation from Service occurs,
and (ii) such severance or other payments are to be made to the Employee no
later than the last day of the second calendar year following the calendar year
in which the Separation from Service occurs. For purposes of Section
409A, each payment of severance made on a payroll date and each monthly
provision of severance benefits under this Agreement shall be treated as a right
to a series of separate payments, as defined in Treas. Reg. Section
1.409A-2(b)(2).
5.
Miscellaneous.
5.1. Representation. The Employee and the Company
hereby represent and warrant, each to the other, that the execution of this
Agreement and the performance of the obligations hereunder will not breach or be
in conflict with any written or other agreement to which they are a party or are
bound, and that neither of them is subject to any written or other covenants
which would affect the performance of their respective obligations
hereunder.
Page 4 of
7
5.2. Waivers. Any waiver of any terms or
conditions or of the breach of any covenant or warranty of this Agreement in any
one instance shall not operate as or be deemed to be or construed as a further
or continuing waiver of any other breach of such term, condition, covenant, or
warranty or any other term, condition, covenant, or warranty, nor shall any
failure or delay at any time or times to enforce or require performance of any
provision hereof operate as a waiver of, or affect in any manner, such party’s
right at a later time to enforce or require performance of such provision or of
any other provision hereof; provided, however, that no such
waiver, unless it, by its own terms, explicitly provides to the contrary, shall
be construed to effect a continuing waiver of the provision being waived and no
such waiver in any instance shall constitute a waiver in any other instance or
for any other purpose or impair the right of the party against whom such waiver
is claimed in all other instances or for all other purposes to require full
compliance.
5.3. Modification. Except as
otherwise provided in this Agreement, neither this Agreement nor any term hereof
may be changed, amended, modified, waived, discharged or terminated except to
the extent that the same is effected and evidenced by the signed written consent
of the party against whom enforcement of such change, modification, waiver,
discharge or termination is sought. This Agreement may not be
modified by electronic mail.
5.4. Governing
Law. This Agreement
shall be governed by, and interpreted in accordance with, the laws of the
Commonwealth of Pennsylvania without regard without regard to its conflict of
laws or principles.
5.5. Notices.
(a) All
notices, requests, demands and other communications required or permitted under
this Agreement shall be in writing and sent as follows:
If to the
Company, to:
WorldGate Service, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx,
XX 00000
Attn: General Counsel
With a copy to:
WGI Investor, LLC
000-X Xxxxxxxxxxx
Xxxxxxxxx
#000
Xxxxxxx,
XX 00000
Attn: Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxx
If to
Employee, to the address of Employee set forth on the signature page
hereto.
(b) All
notices and other communications required or permitted under this Agreement
shall be sent via reputable overnight courier with tracking capability, and
shall be effective upon receipt. The parties hereto may from time to
time change their respective addresses for the purpose of notices to that party
by a similar notice specifying a new address, but no such change shall be deemed
to have been given unless it is delivered or received in accordance with this
Section
7.5(b).
5.6. Entire
Understanding; No Third Party Beneficiaries. This Agreement, and the
Non-Disclosure, Non-Circumvention and Non-Competition Agreement that the
Employee is signing as a part of its new employment relationship with the
Company, together represent the entire understanding of the Company and the
Employee with respect to the Employee’s employment with the Company and
Employee’s compensation. Nothing in this Agreement, express or
implied, is intended to confer on any person, other than the parties hereto and
their respective heirs, personal representatives, successors and assigns any
rights, remedies, obligations or liabilities under or by reason of this
Agreement. On and after the Effective Date, this Agreement will
supersede any and all other agreements, written or oral relating to Employee’s
employment with the Company or any predecessor of the
Company. Specifically, the Employee acknowledges that no commitment
has been made by the Company to Employee with respect to any employment beyond
the term of this Agreement (whether ending by lapse of time or earlier
termination pursuant to its terms) or with respect to any benefit not expressly
set forth in this Agreement or incorporated herein by
reference.
Page 5 of
7
5.7. Confidentiality
Agreement. The effectiveness of this Agreement is expressly
conditioned on the Employee’s executing simultaneously a Non-Disclosure,
Non-Circumvention and Non-Competition Agreement prepared by the Company
expressly for such purpose, which shall replace the existing
Non-Competition and Non-Disclosure Agreement with the Company to which the
Employee is subject.
5.8. Arbitration. The parties shall
submit any dispute (i) concerning the interpretation or enforcement of the
rights and duties under this Agreement, or (ii) relating to this Agreement
to final and binding arbitration pursuant to the National Rules for the
Resolution of Employment Disputes of the American Arbitration Association then
existing. At the request of any party, the arbitrator, attorneys,
parties to the arbitration, witnesses, experts, court reports, or other persons
present at the arbitration shall agree in writing to maintain the strict
confidentiality of the arbitration proceedings. The arbitration shall
be conducted in Pennsylvania by a single, neutral arbitrator. The
award of the arbitrator may be enforced in any court having jurisdiction over
the award, the relevant party or such party’s assets.
5.9. Counterparts. This Agreement
may be executed in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
5.10. Headings;
Interpretation.
The various headings contained herein are for reference purposes only and
do not limit or otherwise affect any of the provisions of this
Agreement. It is the intent of the parties that this Agreement not be
construed more strictly with regard to one party than with regard to any other
party.
5.11. Assignment. Neither this
Agreement, nor any rights or obligations hereunder, may be assigned by one party
without the consent of the other, except that this Agreement shall be binding
upon and inure to the benefit of any successor or successors of the Company,
whether by merger, consolidation, sale of assets or otherwise, and references
herein to the Company shall be deemed to include any such successor or
successors.
5.12 Consultation
with Attorney.
The Company understands that the Employee may wish to consult with an
attorney prior to the execution of this Agreement. The Employee
agrees and acknowledges that the Company has advised the Employee to consult
with an attorney and that if the Employee chooses not to consult with an
attorney, the Employee has done so of the Employee’s own free will.
5.13. Section
409A. All
payments to the Employee pursuant to this Agreement are intended to comply with,
or to be exempt from, the requirements of Section 409A. The Employee
acknowledges that the Employee bears the entire risk of any adverse federal
and/or state tax consequences and penalty taxes in the event that any payment
amount pursuant to this Agreement is deemed to be subject to Section 409A and
that no representations have been made to the Employee relating to the tax
treatment of any payment pursuant to this Agreement under Section 409A and the
corresponding provisions of any applicable state income taxation
laws.
Page 6 of
7
IN WITNESS WHEREOF, the
parties have executed this Employment Agreement as of the date first above
written.
|
The
Company
|
|||
|
WorldGate
Service, Inc.
|
|||
|
By:
|
/s/ Xxxxxx X. Xxxxxxxxx
|
||
|
Name:
Xxxxxx X. Xxxxxxxxx
|
|||
|
Title:
Chief Executive
Officer
|
|||
|
/s/ Xxxxx XxXxxxxxxx
|
||
|
Xxxxx
XxXxxxxxxx
|
||
|
[address]
|
Page 7 of
7
