Exhibit 10.8
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT is made as of the 13th day of December,
1999, by and between US WATS, INC., a New York corporation, with offices at 331
Street Road, 0 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxxxx 00000 (the
"Company"), and XXXXX X. XXXXXXX, residing at 00 Xxxxxx Xxx, Xxxxxxx,
Xxxxxxxxxxxx 00000 (the "Executive").
W I T N E S S E T H:
WHEREAS, the Company desires to continue to employ the Executive, and the
Executive is willing to continue to be employed by the Company, upon the terms
and subject to the conditions hereinafter set forth:
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the parties hereto agree as follows:
1. EMPLOYMENT. The Company agrees to continue to employ the Executive,
and the Executive agrees to continue in employment with the Company, subject to
the terms and conditions herein set forth.
2. TERM. The term of the Executive's employment under this Agreement
shall commence on January 3, 2000 (the "Effective Date") and shall terminate on
the first (1st) anniversary of the Effective Date, subject to the provisions of
this Agreement (such period is hereinafter referred to as the "Term").
3. DUTIES.
3.1 During the Term, the Executive shall be employed as President and
Chief Executive Officer of the Company and any successors thereto or to its
business, and shall be in charge of and responsible for the general and
supervisory duties normally and customarily attendant to such office and shall
render such other lawful services, and exercise such powers, which are from time
to time requested of him, assigned to him or vested in him by the Board of
Directors of the Company (the "Board") and which are commensurate with his
position as President and Chief Executive Officer.
3.2 The Executive agrees that, during the Term, unless the Board shall
otherwise consent, he will devote such amount of his time, energies, labor and
skills to the business of the Company and to the duties and responsibilities
specified in Section 3.1 as shall be reasonably necessary.
4. BASE COMPENSATION. In consideration for services to be performed
hereunder by Executive, the Company shall pay to the Executive an annual base
salary of $225,000 in installments payable in accordance with the Company's
customary payroll practices, but in no event less than one time per month. On
each anniversary of the Effective Date of this Agreement, the Executive's base
salary shall be increased at a minimum by an amount equal to the base salary
then in effect multiplied by the greater of (i) the percentage increase in the
consumer price index from the preceding year, or (ii) five percent. In addition,
the Company shall reimburse the Executive for all expenses reasonably incurred
by him in the performance of his duties hereunder and the business of the
Company upon the submission to the Company of appropriate receipts therefor.
5. BENEFITS AND CASH BONUS.
5.1 During the Term, the Executive shall be eligible to participate in
any pension, profit-sharing, stock option or similar plan or program of the
Company now existing or established hereafter for the benefit of its employees
generally, to the extent that he is eligible under the general provisions
thereof. The Executive shall also be entitled to participate in any group
insurance, hospitalization, medical, health and accident, disability or other
plan or program of the Company now existing or established hereafter for the
benefit of its employees or executives generally, to the extent that he is
eligible under the general provisions thereof.
5.2 During the Term, the Company shall provide the Executive with a
policy of term life insurance in an amount equal to not less than two (2) times
his yearly salary hereunder, payable to such beneficiary or such beneficiaries
as shall be designated in writing by the Executive.
5.3 During the Term, the Executive shall be entitled to receive an
annual bonus, payable within sixty (60) days following the end of each calendar
year during the Term, based on the achievement by the Company or the Executive
of such targets as the Board may from time to time prescribe; provided that the
minimum annual bonus shall be an amount equal to thirty percent (30%) of the
Executive's annual base salary for the preceding calendar year; and provided
further that upon the termination of Executive's employment hereunder during the
middle of any calendar year for any reason other than a discharge of Executive
by the Company for Cause (as defined below), Executive's death or Disability (as
defined below) or Executive's resignation without Good Reason (as defined
below), the final bonus shall be prorated based on that portion of the calendar
year that Executive was employed with the Company.
5.4 During the Term, the Company shall provide Executive an automobile
allowance of $700 per month to cover Executive's use of his vehicle for business
purposes.
6. STOCK OPTION GRANT. As provided in the stock option agreement attached
hereto as Exhibit A, the Executive will be granted options to purchase shares of
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the Company's common stock under the 1999 US WATS, Inc. Stock Option Plan (the
"Option Plan").
7. TERMINATION OF EXECUTIVE'S EMPLOYMENT.
7.1 The Executive's employment hereunder may be terminated by the
Company or by the Executive at any time. Upon termination, the Executive shall
be entitled to only the compensation and benefits described in this Section 7.
Any amount payable under this Section 7 will be subject to tax withholding in
accordance with applicable law and subject to the Company's normal payroll
practices.
7.2 In the event that the Executive's employment hereunder is
terminated as a result of (i) his death, (ii) his Disability (as defined below),
(iii) his discharge by the Company for Cause (as defined below), or (iv) his
resignation without Good Reason (as defined below), then the Company's
obligation to Executive will be limited solely to the payment of accrued and
unpaid salary and benefits through the date of such termination. All salary and
benefits shall cease at the time of such termination, subject to the terms of
any benefit or compensation plans then in force and applicable to Executive, and
the Company shall have no further obligations or liabilities to the Executive
hereunder.
7.3 In the event that the Executive's employment hereunder is
terminated (i) without Cause by the Company or (ii) by the Executive for Good
Reason, then the Company shall be obligated to make monthly severance payments
to Executive in an amount equal to his monthly base salary, at the rate in
effect immediately preceding such termination, (or if such termination is by the
Executive for Good Reason as described in Section 7.6.3(i), the rate in effect
immediately preceding the reduction in the Executive's base salary), for a
period equal to the remainder of the Term, plus three months. In addition, the
Executive shall be entitled to a final bonus payment as provided in Section 5.3.
7.4 Notwithstanding anything contained in this Agreement to the
contrary, if the Executive's employment hereunder is terminated without Cause by
the Company or by Executive for Good Reason following a Change in Control (as
defined in the Option Plan), then, within sixty (60) days of the termination,
the Company will make a single sum severance payment to Executive in an amount
equal to the greater of: (i) the total amount of base salary Executive would
have received during the remainder of the Term, but for such termination, or
(ii) one and one-half (1.50) times his annual base salary. In either case, for
purposes of this
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Section 7.4, Executive's base salary shall be determined with reference to his
rate of base salary as in effect immediately preceding the termination of his
employment hereunder (or, if such termination is by Executive for Good Reason as
described in Section 7.6.3(i), the rate of base salary in effect immediately
preceding the reduction in Executive's base salary). Any amount paid under this
Section 7.4 will be in lieu of, and not in addition to, any amount otherwise
payable under Section 7.3.
7.5 Payments under this Section 7 shall be made without regard to
whether the deductibility of such payments (or any other payments) would be
limited or precluded by Section 280G of the Internal Revenue Code of 1986 (the
"Code") and without regard to whether such payments would subject the Executive
to the federal excise tax levied on certain "excess parachute payments" under
Section 4999 of the Code; provided, however, that if the Total After-Tax
Payments (as defined below) would be increased by the limitation or elimination
of any amount payable under this Section 7, then the amount payable under
Section 7 will be reduced to the extent necessary to maximize the Total After-
Tax Payments. The determination of whether and to what extent payments under
this Section 7 are required to be reduced in accordance with the preceding
sentence will be made at the Company's expense by an independent, certified
public accounting firm selected by the Board or by such other qualified person
or firm as the Board may select. In the event of any underpayment or overpayment
under this Section 7 (as determined after the application of this Section 7.5),
the amount of such underpayment or overpayment will be immediately paid by the
Company to the Executive or refunded by the Executive to the Company, as the
case may be, with interest at the applicable federal rate provided for in
Section 7872(f)(2) of the Code.
7.6 For purposes of this Agreement, the following definitions will
apply
7.6.1 "Cause" shall mean: (i) Executive's conviction of a
felony; (ii) gross misconduct relating to the Company and
not cured within ten (10) days of the delivery of written
notice thereof; (iii) intentional misappropriation of
Company funds; or (iv) deliberate and premeditated acts
against the interest of the Company not cured within ten
(10) of the delivery of written notice days notice.
7.6.2 "Disability" shall mean the Executive is mentally or
physically disabled from properly and fully performing
his duties and responsibilities hereunder for a period of
120 consecutive days or for 180 days, even though not
consecutive, within a 360-day period, all as evidenced by
the written certification of a qualified medical doctor
selected by the Company.
7.6.3 "Good Reason" shall mean: (i) a reduction in Executive's
base salary, (ii) a reduction in Executive's bonus or
fringe benefits other than in proportion to reductions
applicable to other senior executive officers of the
Company, (iii) a significant adverse alteration in the
nature or status of Executive's title, duties or
authority not cured within thirty (30) days of the
delivery of written notice thereof, (iv) any other
material breach of this Agreement by the Company not
cured within thirty (30) days of the delivery of written
notice thereof, or (v) relocation of the principal place
where Executive performs his day-to-day responsibilities
by more than 100 miles.
7.6.4 "Total After-Tax Payments" means the total of all
"parachute payments" (as that term is defined in Section
280G(b)(2) of the Code) made to or for the benefit of
Executive (whether made hereunder or otherwise), after
reduction for all applicable federal taxes (including,
without limitation, the tax described in Section 4999 of
the Code).
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8. COVENANTS OF THE EXECUTIVE.
8.1 CONFIDENTIALITY. The Executive acknowledges that his employment
by the Company will, throughout his employment, bring him into close contact
with the confidential affairs of the Company, including information about costs,
profits, markets, sales, key personnel, pricing policies, operational methods,
and other business affairs, methods and information, including plans for future
developments, not readily available to the public. The Executive further
acknowledges that the services to be performed by him under this Agreement are
of a special, unique, unusual, extraordinary and intellectual character, and
that the Company currently competes or intends to compete with other
organizations that are located in all of the states of the United States. In
recognition of the foregoing, the Executive covenants and agrees that: (i) he
will not knowingly divulge any material confidential matters of the Company
which are not otherwise in the public domain and will not intentionally disclose
them to anyone outside of the Company during his employment by the Company
hereunder or following the expiration or termination of his employment with the
Company for any reason; (ii) he will deliver promptly to the Company at the end
of Term, or at any other time as the Company may so request, at the Company's
expense, all memoranda, notes, records, reports and other documents (and all
copies thereof) relating to the businesses of the Company which he obtained
while employed by, or otherwise serving or acting on behalf of, the Company, or
any of its subsidiaries or affiliates, and which he may then possess or have
under his control; and (iii) during the Term and any additional period during
which the Executive may be employed by the Company (whether or not such
employment shall be pursuant to written agreement) the Executive will not,
unless the Board shall otherwise consent, along or together with any other
person, firm, partnership, corporation, or other entity whatsoever (except any
subsidiaries or affiliates of the Company), directly or indirectly, whether as
an officer, director, stockholder, partner, proprietor, associate, employee,
representative, public relations or advertising representative, management
consultant or otherwise, engage in or become or be interested in or associated
with any other person, corporation, firm, partnership or other entity engaged in
any business which is competitive with any business conducted or contemplated by
the Company.
8.2 ANTI-RAIDING. Executive agrees that during the Term and
thereafter for a period of six (6) months, he will not, as a principal, agent,
employee, employer, consultant, director or partner of any person, firm,
corporation or business entity, or in any individual or representative capacity
whatsoever, directly or indirectly, without the prior express written consent of
the Company, attempt to induce any person who is then in the employ of the
Company to leave the employ of the Company or employ, or attempt to employ, any
such person or persons who at any time during the six months period preceding
termination of Executive's employment with the Company was in the employ of the
Company.
8.3 Notwithstanding the provisions of Section 8.1(iii), the Executive
may own, as a passive investor, securities of a corporation engaged in a
competitive line of business whose equity securities are registered under
Section 12(b) or 12(g) of the Securities Exchange Act of 1934, so long as his
beneficial ownership in any one such corporation shall not in the aggregate
constitute more than five percent (5%) of any class of equity securities of such
corporation.
8.4 The parties agree that the remedy at law for any breach or
threatened breach of any covenant contained in this Section 8 will be inadequate
and that either party, in addition to such other remedies as may be available to
it, and/or them, at law or in equity, shall be entitled to injunctive relief
without bond or other security.
9. GOVERNING LAW. This Agreement shall be construed in accordance with
and governed by the laws of the State of Delaware applicable to contracts
executed in and to be performed solely within such state.
10. NOTICES. All notices required or permitted to be given by either party
hereunder, including notice of change of address, shall be in writing and
delivered by hand, or by telecopier or mailed, postage prepaid, certified or
registered mail, return receipt requested, to the other party as follows:
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If to the Company: US WATS, Inc.
000 Xxxxxx Xxxx
0 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Chairman of the Board
With a copy to: Xxxxxx Xxxxxxxx, LLP
3000 Two Xxxxx Square
00xx & Xxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
If to the Executive: Xxxxx X. Xxxxxxx
00 Xxxxxx Xxx
Xxxxxxx, XX 00000
11. MISCELLANEOUS.
11.1 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes any and all prior oral or written agreements and understandings;
however, this Agreement shall not supersede, diminish or modify any rights of
the Executive under any employee benefit plans of the Company. There are no oral
promises, conditions, representations, understandings, interpretations or terms
of any kind as conditions or inducements to the execution hereof or in effect
among the parties. This Agreement may not be amended, and no provision hereof
shall be waived, except by a writing signed by the Company and the Executive, or
in the case of a waiver, by the party waiving compliance therewith, which states
that it is intended to amend or waive a provision of this Agreement. Any waiver
of any rights or failure to act in any one instance shall not be regarded as an
agreement to waive any rights or failure to act in any other instance, whether
or not similar.
11.2 FURTHER ACTS. The parties hereto agree that, after the execution
of this Agreement, they will make, do, execute or cause to be made, done or
executed all such further and other lawful acts, deeds, things, devices,
conveyances and assurances in law whatsoever as may be required to carry out the
true intention and to give full force and effect to this Agreement.
11.3 SURVIVABILITY. Should any provision of this Agreement be held by
a court of competent jurisdiction to be unenforceable or prohibited by an
applicable law, this Agreement shall be considered divisible as to such
provision, which shall be inoperative, and the remainder of this Agreement shall
be valid and binding as though such provision were not included herein.
11.4 SUCCESSORS AND ASSIGNS. This Agreement shall insure to the
benefit of, and be binding upon, the Company and any corporation with which the
Company merges or consolidates (including Capsule Communications, Inc.) or to
which the Company sells all or substantially all of its assets, and upon the
Executive and his executors, administrators, heirs and legal representatives.
11.5 HEADINGS. All headings in this Agreement are for convenience
only and are not intended to affect the meaning of any provision hereof.
11.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts with the same effect as if the signatures to all such counterparts
were upon the same instrument, and all such counterparts shall constitute one
instrument.
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IN WITNESS WHEREOF, the Executive has executed this Agreement and the
Company has caused this Agreement to be executed by its duly authorized
representative as of the day and year first above written.
ATTEST US WATS, INC.
By: By: Xxxxx X. Xxxxx
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Chairman
(corporate seal)
Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
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