EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") made July 3, 1997, by and between,
TeleHub Network Services Corporation, an Illinois corporation, whose address is
0000 Xxx-Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000 (the "Employer"), and
Xxxx X. Xxxxxx, an individual residing at 000 Xxxxxxx Xxxxx, Xxxxxx Xxxxxx,
Xxxxxxxx ("Executive").
R E C I T A L S
WHEREAS, Employer desires to hire and employ Executive.
WHEREAS, Executive desires to become an employee of Employer;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties agree as follows:
1. Employment. Employer, its subsidiaries and Affiliates (collectively, the
"Company") agree to employ Executive, and Executive hereby agrees to be employed
by the Company on a full-time basis. Executive represents and warrants that the
execution of this Agreement and his performance under this Agreement does not
breach any other agreement and does not require the consent of any other person.
2. Duties. Executive shall perform the duties as assigned by the Company
from time to time and shall serve the Company faithfully and to the best of
Executive's ability. The Executive will hold, without additional compensation,
such other positions for the Company to which Executive may be appointed or
elected from time to time. In its sole discretion the Company may, from time to
time, change Executive's title or responsibility. Executive's conduct must
promote the best interests of the Company and must not discredit the Company,
its products or services.
3. Exclusivity. Executive shall devote substantially his full business
time, efforts, attention, skill and energy to the Company's business. Executive
shall disclose all other business activities to the Company and Executive shall
not engage in any other business activity that requires significant personal
services by Executive. After notifying the Company, Executive may take
reasonable personal time for:
3.1. personal investments that do not require significant services by
Executive;
3.2. participation in volunteer or charitable activities;
3.3. participation in industry-related organizations;
3.4. with prior Board approval, serving as a Director for other companies;
and
3.5. activities approved in advance by the Board;
except that Executive shall cease any such outside activity if the Company
determines that such activity will interfere or conflict with the Company's
interests.
4. Conflicts of Interest. Executive shall not engage in any activity that,
in the Company's judgment, may interfere or conflict with the proper performance
of Executive's duties or the Company's interest. If Executive has any interest
in a proposed transaction involving the Company,
that interest must be fully disclosed to the Company and the Company must
approve of the transaction.
5. Inventions and Confidentiality. As a condition to the Executive's
employment with the Company, the Executive has executed and delivered to the
Company, the Invention Assignment and Confidentiality Covenant, the terms of
which are hereby incorporated into and made part of this Agreement by this
reference.
6. Compensation and Benefits. In consideration of the services to be
rendered pursuant to this Agreement, Executive shall receive the following
compensation and benefits during the term of his employment:
6.1. Salary. The Company shall pay Executive an annual base salary,
payable semi-monthly in arrears. The annual base salary during the term
hereof shall be $125,000.00. If the Company completes an Initial Public
Offering of its equity securities or otherwise becomes a public company,
Executive's annual base salary will automatically increase to $135,000.00.
6.2. Bonus. The Company will pay Executive an incentive bonus up to
twenty-five percent (25%) of Executive's base Salary per year based upon
Executive's accomplishments of objectives that are mutually defined and
agreed upon between, and documented by, Executive and the Company. The
Company shall pay Executive's Bonus ninety (90) calendar days after the
close of the Company's fiscal year. The Company's Board of Directors, with
the advice of Executive's supervisor, shall annually review the amounts of
Executive's base Salary and Bonus.
6.3. Benefits. The Company may provide Executive with such insurance
plans, hospitalization plans, retirement plans and other executive benefits
that are generally provided to executive employees of the Company and for
which Executive is eligible under the terms and conditions thereof.
6.4. Relocation Allowance. The Executive currently does not reside in
the vicinity of the Company's Gurnee business office. If Executive
relocates his residence within 10 miles of the Gurnee business office, the
Company will reimburse reasonable and necessary relocation expenses.
6.5. Reimbursement of Expenses. Upon receipt of an itemized accounting
of such expenses with acceptable supporting documentation, the Company
shall promptly reimburse Executive for all reasonable and necessary
out-of-pocket expenses incurred by Executive in connection with the
business of the Company and in performance of Executive's duties under this
Agreement in accordance with Company policy.
7. Duration. Executive's employment shall commence on the Effective Date
and continue until terminated in accordance with Section 8. The initial term of
Executive's employment shall be two (2) years ("Initial Term"), and shall be
automatically renewed for additional terms of one (1) year unless earlier
terminated pursuant to the terms of this Agreement. After termination of
Executive's employment, the applicable provisions of Sections 5, 8 and 9 shall
remain in full force and effect until the time specified in each such section.
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8. Termination. Executive's employment may be terminated as follows:
8.1. Expiration of Term. Upon written notice by either party delivered
at least thirty (30) calendar days before the expiration of the Initial
Term or renewal term (collectively, "Term"), Executive's employment will
terminate at the expiration of the then current Term.
8.2. Death. If Executive dies during the Term of his employment, the
Company shall pay his estate the compensation that would otherwise be
payable to him for the month in which his death occurs, and his employment
shall be deemed terminated on the last day of such month.
8.3. Cause. The Company may immediately terminate Executive's
employment at any time for:
8.3.1. non-performance or gross negligent performance by Executive of
any material duties which continues after sixty (60) calendar
days' written notice specifying such non-performance or gross
negligent performance; or
8.3.2. the commission of any theft, fraud, embezzlement or similar
crime involving the commission of any felony; for acts of
dishonesty or moral turpitude; for violation of Company policy or
applicable local, state or federal laws or regulations, including
anti-discrimination laws or securities laws; or for violation of
other laws which causes material economic damage to the Company
or material damage to the business reputation of the Company; or
for a material breach of any provision of this Agreement.
8.4. Demotion. The Executive may terminate Executive's employment with
the Company upon thirty (30) calendar days' written notice if the Company
assigns the Executive to a position of lower responsibility and Executive
rejects such assignment.
8.5. Discretion. Either party, in its sole discretion, may terminate
Executive's employment at any time upon thirty (30) calendar days' prior
written notice.
8.6. Change of Control. Either party may terminate Executive's
employment upon at least thirty (30) calendar days' written notice upon the
occurrence of any of the following events:
8.6.1. sale by the Company of substantially all of its assets to a
single purchaser or associated group of purchasers who are not
Affiliates of the Company;
8.6.2. sale, exchange or other disposition in one transaction of 35%
or more of the outstanding voting stock of the Company to
persons, firms or corporations who are not Affiliates of the
Company;
8.6.3. merger or consolidation of the Company in a transaction not
involving an Affiliate of the Company in which the shareholders
of the Company receive less than 50% of the outstanding voting
stock of the newcontinuing corporation or successor entity;
8.6.4. a bona fide decision by the Company to terminate its business
and liquidate its assets (but only if such liquidation is not
part of a plan to carry on the Company's business through its
shareholders).
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For the purpose of this Agreement, the term "affiliate" means a person,
firm or corporation that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control of
the Company.
8.7. Severance. If Executive's employment is terminated pursuant to
Subsection 8.4 or 8.6 hereof, or the Company terminates Executive's
employment pursuant to Subsection 8.5 hereof, the Company shall pay
Executive a Termination Fee equal to Executive's Annual Base Salary, plus
Benefits, plus the Bonus specified in Section 6.2 hereof; if Executive's
employment is terminated during the first year of employment, the Bonus
will be twenty-five percent (25%) of Executive's Annual Salary pro-rated
for the portion of the year served; otherwise the Bonus will be the amount
of the previous year's Bonus pro rated for the portion of the year served.
Such Bonus shall be paid within ninety (90) calendar days of the end of the
Company's fiscal year.
9. Covenant Not to Compete. By reason of Executive's position with the
Company, Executive will have access to Confidential Information, and the
national scope of the Company's proposed business. Executive agrees that the
restrictions on Executive's future activities contained in this Section are
fair, reasonable and necessary.
9.1. Covenant Period. The covenants contained in this Section shall
continue until one year after the later of:
9.1.1. Termination of Executive's employment;
9.1.2. Company's receipt of revenue from wholesale long distance
services;
9.1.3. Company's receipt of revenue from Open Access Mediation
Services; Or
9.1.4. Company becomes subject to the reporting requirements of
Section 12 or 15(d) of the federal Securities Exchange Act
of 1934;
(the "Covenant Period").
9.2. Restrictions on Future Employment. Until the Covenant Period
expires, Executive shall not, directly or indirectly, own, manage, operate,
control, be employed by, assist or participate in the ownership,
management, operation or control of a business operating in the United
States that is engaged in the following activities:
9.2.1. management, billing and control services for telephony and
other communications;
9.2.2. wholesale long distance services using Asynchronous
Transfer Mode ("ATM") techniques or any public switched
network ATM services;
9.2.3. the provision of Open Access Mediation Services; or
9.2.4. computer hardware and software used to provide any of the
foregoing.
This restriction applies whether or not the Company is authorized to
provide and actually provides such services during Executive's employment
by the Company.
9.3. Non-solicitation. Executive shall not directly or indirectly:
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9.3.1. induce any employee of the Company to leave the employ of
the Company;
9.3.2. interfere with the relationship between the Company and
any employee;
9.3.3. hire any Company employee to work for any organization of
which Executive is an officer, director, employee,
consultant, independent contractor or owner of an equity or
other financial interest; or
9.3.4. solicit or service any actual or prospective supplier,
client, customer of the Company who was solicited or
serviced during Executive's employment;
9.3.5. interfere or attempt to interfere with any transaction
involving the Company;
until the Covenant Period expires.
10. Securities Matters. Since the Executive will have access to
Confidential Information, Executive's ability to engage in securities
transactions (including securities issued by the Company and by others) will be
limited. Executive agrees to:
10.1.not engage in any transactions that intentionally or knowingly
violate federal and state securities laws;
10.2. file all reports required by securities regulatory authorities;
10.3.provide information about securities transactions when requested
by the Company;
10.4.follow written Company policies concerning securities
transactions;
10.5.execute any "lock-up" agreements or other restrictions on
transactions when requested by the Company; and
10.6. comply with securities law requirements for all transactions.
While Executive may request the Company's permission to engage in proposed
securities transactions, Executive is still responsible for compliance with
applicable legal requirements.
11. Injunctive Relief. Upon a material breach or threatened material breach
by Executive of any of the provisions of Sections 3, 4, 5, 9 and 10 of this
Agreement, or any term of the Covenant, the Company shall be entitled to an
injunction restraining Executive from such breach, together with any other
relief or remedy available, for such breach or threatened breach, including the
recovery of damages. Nothing herein shall be construed as prohibiting the
Company from pursuing any other remedies for such breach or threatened breach.
If the Company takes legal action to enforce the provisions of this Agreement or
to enjoin Executive from violating this Agreement, the prevailing party, as part
of its damages, shall be entitled to recover its legal fees and expenses
incurred in such action from the losing party.
12. Severability. It is the desire and intent of the parties that the
provisions of this Agreement shall be enforced to the fullest extent permissible
under the laws and public policies applied in each jurisdiction in which
enforcement is sought. Accordingly, if any particular provision or portion of
this Agreement shall be adjudicated to be invalid or unenforceable, this
Agreement shall be deemed amended to delete therefrom the portion thus
adjudicated to be invalid or unenforceable, such deletion to apply only with
respect to the operation of such Section in the particular jurisdiction in which
such adjudication is made.
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13. Notices. All communications, requests, consents and other notices under
this Agreement shall be given in writing and delivered by facsimile, courier,
registered or certified mail (postage prepaid), to the receiving party at the
address set forth above or the recipient's last known address. Notice shall be
deemed given on the date of delivery as shown by the facsimile confirmation or
delivery receipt.
14. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Illinois.
15. Assignment. The Company may assign its rights and obligations under
this Agreement to any successor corporation or to any acquirer of substantially
all of the business of the Company, and all covenants and agreements hereunder
shall inure to the benefit of and be enforceable by or against any such
assignee. Neither this Agreement nor any rights or duties hereunder may be
assigned or delegated by Executive.
16. No Waiver. A waiver by the Company of a breach of any provision of this
Agreement by the Executive shall not operate or be construed as a waiver of any
subsequent or other breach by the Executive.
17. Amendments. No provision of this Agreement shall be altered, amended,
revoked or waived, except by an instrument in writing, signed by the Company and
Executive.
18. Binding Effect. Except as otherwise provided herein, this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective legal representatives, heirs, successors and assigns.
19. Execution in Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
20. Entire Agreement. This Agreement together with the Invention Assignment
and Confidentiality Covenant set forth the entire agreement and understanding of
the parties and supersede all prior understandings, agreements or
representations by or between the parties, whether written or oral. This
Agreement supersedes the Employment Agreement dated April 21, 1997, between the
Company and Executive.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the date first above written.
COMPANY: TeleHub Network Services Corporation,
an Illinois corporation
By: /s/ XXXXXX X. XXXXXX
----------------------------------
Xxxxxx X. Xxxxxx, President & CEO
EXECUTIVE: /s/ XXXX X. XXXXXX
----------------------------------
Xxxx X. Xxxxxx
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Addendum to July 3, 1997 Employment Agreement for Xxxx X. Xxxxxx
Paragraph 6.1 Salary. Executive's annual base salary during the term hereof
shall be increased from $128,750.00 to $140,000.00 effective
October 1, 1998. If the Company successfully completes an Initial
Public Offering of its equity securities or otherwise becomes a
public company, Executive's annual base salary will automatically
increase to $150,000.00.
/s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx, President & CEO, TeleHub Communications Corp.
Dated: September 23, 1998
AMENDMENT TO EMPLOYMENT AGREEMENT
This AMENDMENT ("Amendment") entered into by and between TELEHUB
COMMUNICATIONS CORPORATION, a Nevada corporation, and TELEHUB NETWORK SERVICES
CORPORATION, an Illinois corporation, which have offices at 0000 Xxx-Xxxxx
Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 60031(collectively, "Employer"), and Xxxx
X. Xxxxxx, an individual residing at 000 Xxxxxxx Xxxxx, Xxxxxx Xxxxxx, Xxxxxxxx
("Executive"), hereby amends the Employment Agreement dated July 3, 1997
(together with the September 23, 1998, addendum, the "Original Employment
Agreement") as of January 25, 1999 ("Effective Date").
R E C I T A L S
WHEREAS, Employer and Executive entered into the Original Employment
Agreement which provided for the employment of Executive as corporate
controller;
WHEREAS, Employer wishes to appoint Executive as its Chief Financial
Officer ("CFO");
WHEREAS, Employer and Executive desire to amend the Original Employment
Agreement to reflect Executive's new position;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Amendment, the parties agree as follows:
1. Amendment. The Original Agreement is amended as provided herein; when
used in the Original Agreement or this Amendment, the term "Agreement" shall
mean the Original Agreement as amended by this Amendment. Unless otherwise
defined herein, all capitalized terms used in this Amendment shall have the same
meaning as set forth in the Original Agreement.
2. Scope of Duties. With Executive's appointment as CFO, section 2 of the
Original Employment is amended to read:
2. Duties. Executive shall serve as Company's Chief Financial
Officer and shall perform the duties, bear the responsibilities
commensurate with his position and serve the Company faithfully and to
the best of his ability, under the direction of Company's Board of
Directors ("Board"). In addition, the Executive will hold, without
additional compensation, such other offices and directorships for the
Company to which he may be appointed or elected from time-to-time.
Subject to Sections 8.4, 8.5 and 8.7 of this Agreement, Executive
serves at the pleasure of the Board, so the Company, in its sole
discretion, may assign Executive to a position of
lesserresponsibility. Executive's conduct must promote the best
interests of the Company and must not discredit the Company, its
products or services.
3. Compensation. The compensation and benefits provision of the Original
Employment Agreement are amended as follows:
3.1.Section 6.1 is amended to read:
Amendment to Xxxxxx
Employment Contract - Page 1
6.1.Salary. The company shall pay Executive an annual base
salary, payable semi-monthly in arrears. The annual base salary
during the term hereof shall be $150,000.
3.2.The incentive bonus described in Section 6.2 will be "up to 50% of
Executive's annual base salary".
3.3.Executive will receive a signing bonus of $10,000 (before taxes
and other witholding) to be paid in February 1999.
3.4.The following sections 6.6 and 6.7 are added to the Original
Agreement:
6.6.Stock Options. The Company has created stock option plans for
directors, officers and employees. Executive will be eligible to
receive stock options in accordance with the terms of such plans.
0.0.Xxx Allowance. The Company shall pay Executive a car
allowance of $600.00 per month, plus permit Executive to charge
running expenses (e.g., gas, maintenance and repairs) on the Company
credit card.
4. Protection of Confidential Information. Since Executive will be a key
employee of the Company, Executive shall have access to Confidential
Information. Unauthorized use or disclosure of any Confidential Information
would harm Company. Executive has reviewed and reaffirms the Invention
Assignment and Confidentiality Covenant identified in Agreement Section 5. In
addition, the following Section 21 is added to the Original Agreement:
21. Covenant Not to Compete. Executive will be a key employee of
Company, Executive shall have access to Confidential Information, and the
scope of Company's proposed business is national. Consequently, Employee
agrees that the restrictions on his future activities contained in this
Section are fair, reasonable and necessary.
21.1 Covenant Period. The covenants contained in this Section
shall continue until one year after the later of:
21.1.1. termination of Executive's employment;
21.1.2. Company receives revenue from wholesale long distance
services;
21.1.3. Company receives revenue from Open Access Mediation
Services; or
21.1.4. Company becomes subject to the reporting requirements of
sections 12 or 15(d) of the federal Securities Exchange Act of 1934.
(the "Covenant Period"). Subsections 21.1.2, 21.1.3, and 21.1.4 do not
apply if they have not occurred within one year after termination of
Executive's employment.
Amendment to Xxxxxx
Employment Contract - Page 2
21.2. Restrictions on Future Employment. Until the Covenant Period
expires, Executive shall not, directly or indirectly, own, manage, operate,
control, be employed by, assist or participate in the ownership,
management, operation or control of a business operating in the United
States that is engaged in the following activities:
21.2.1. provision of management, billing and control services
using Advanced Intelligent Network technologies;
21.2.2. provision of wholesale long distance services using
Asynchronous Transfer Mode techniques; or
21.2.3 provision of Open Access Mediation Services. This
restriction applies whether or not Company is authorized and actually
provides such services during Executive's employment.
21.3 Non-solicitation. Executive shall not directly or indirectly:
21.3.1. induce any Company employee to leave the employ of the
Company;
21.3.2. interfere with the relationship between Company and any
employee;
21.3.3. hire any Company employee to work for any organization of
which Executive is an officer, director, employee, consultant,
independent contractor or owner of an equity or other financial
interest; or
21.3.4. solicit or service any actual or prospective Company
supplier, client, customer who was solicited or serviced during
Executive's employment;
21.3.5. interfere or attempt to interfere with any transaction
involving Company; until the Covenant Period expires.
IN WITNESS WHEREOF, the duly authorized representatives of each party,
after reading and understanding the terms herein, has executed this Amendment.
COMPANY: TELEHUB COMMUNICATIONS CORPORATION,
a Nevada corporation
By: /s/ XXXXXX X. XXXXXX
-----------------------------------------
Xxxxxx X. Xxxxxx, Chief Executive Officer
COMPANY: TELEHUB NETWORK SERVICES CORPORATION,
an Illinois corporation
By: /s/ XXXXXX X. XXXXXX
----------------------------------------
Xxxxxx X. Xxxxxx, Director
EXECUTIVE: /s/ XXXX X. XXXXXX
---------------------------------------------
XXXX X. XXXXXX
Amendment to Xxxxxx
Employment Contract - Page 3
