EXHIBIT 1
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of September 29, 1998, by and among
Incomnet, Inc., ("Incomnet"), a California corporation and National Telephone
& Communications, Inc., ("NTC"), a Delaware corporation, (together the
"Companies") and Xxxxx Xxxxxxx a resident of Potomac, Maryland ("Executive").
WITNESSETH:
WHEREAS, Incomnet desires to employ Executive as the President and Chief
Executive Officer of Incomnet and NTC desires to employ Executive as the
President and Chief Executive Officer of NTC and Executive is willing to
serve in each capacity; and
WHEREAS, the Companies and Executive desire to set forth the terms and
conditions of such employment.
NOW, THEREFORE, in consideration of the promises and mutual covenants
contained herein and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. TERM OF EMPLOYMENT. Except for earlier termination as provided in
Section 7 hereof, Executive's employment under this Agreement shall be for a
term (the "Employment Term") commencing on September 29, 1998 (the
"Commencement Date") and terminating on December 31, 2001.
2. POSITIONS. (a) During the Employment Term, Executive shall serve
as President and Chief Executive Officer of Incomnet, and as President and
Chief Executive Officer of NTC. It is the intention of the parties that
during the Employment Term, Executive shall have the option to also serve on
the Board of Directors of each of the Companies without additional
compensation and if requested by the Executive, the Companies shall, during
the Employment Term, nominate Executive as a director. If the Executive
serves on the Board of Directors of NTC, he shall act as Chairman of the
Board. Incomnet and NTC each agree that it shall jointly and severally be
responsible for obligations of each of the Companies to the Executive under
this Agreement.
(b) Executive shall report directly to the Board of Directors of
Incomnet (the "Incomnet Board") and the Board of Directors of NTC.
(c) During the Employment Term, Executive shall devote
substantially all of his business time and efforts to the performance of his
duties hereunder and use his best efforts in such endeavors; provided,
however that Executive shall be allowed, to the extent that such activities
do not materially interfere with the performance of his duties and
responsibilities hereunder, to manage his passive personal investments and to
serve on corporate, civic, or charitable boards or committees.
Notwithstanding the foregoing, Executive shall not serve on any corporate
board of directors if such service would be inconsistent with his fiduciary
responsibilities to the Companies and in no event shall Executive serve on
any such board unless previously approved by the Incomnet Board.
(d) Upon request of the Incomnet Board, Executive shall also serve
as an officer of affiliates of the Companies with no additional compensation.
Any compensation paid to Executive by any such affiliate shall reduce the
Companies' compensation obligations hereunder.
(e) Both during his employment hereunder, and for a three year
period commencing after the Executive ceases to be an employee of the
Companies, the Companies shall maintain commercially reasonable directors'
and officers' liability insurance policies covering the Executive with
respect to his service as an officer and/or director of the Companies or any
of its affiliates and to the maximum extent permitted by law and the
applicable Articles of Incorporation and By-laws, shall indemnify the
Executive from liability, loss or expense (including reasonable attorney's
fees) arising out of such service.
3. BASE SALARY. During the Employment Term, Executive shall be paid a
base salary at the annual rate of not less than three hundred twenty-five
thousand dollars ($325,000). Base salary shall be payable by Incomnet in
accordance with its usual payroll practices but not less frequently than once
every two weeks. Executive's Base Salary shall be subject to annual review
by the Incomnet Board, and may be increased, but not decreased, from time to
time. The base salary as determined as aforesaid from time to time shall
constitute "Base Salary" for purposes of this Agreement.
4. COMPENSATION AND OTHER BENEFITS. (a) ANNUAL BONUS. For each
fiscal year or portion thereof during the Employment Term, Executive shall be
eligible to participate in an annual bonus plan of Incomnet in accordance
with, and subject to the terms of, such plan as determined by the Incomnet
Board, with a maximum award level equal to one hundred percent (100%) of Base
Salary, provided that Executive's minimum annual bonus for fiscal year 1999
and 2000 shall be fifty percent (50%) of Base Salary (the "Guaranteed Bonus")
and further provided that beginning with Incomnet's 1999 fiscal year,
Incomnet shall have the right to condition the payment of an annual bonus
(other than the Guaranteed Bonus) on shareholder approval, as and to the
extent required by Section 162(m) of the Internal Revenue Code of 1986, as
amended, of an annual bonus plan designed to comply with the requirements of
such section for performance based compensation.
(b) SIGNING BONUS. Incomnet on behalf of both the Companies shall
pay Executive a signing bonus equal to three hundred fifty-three thousand
dollars ($353,000) (the "Signing Bonus") within thirty (30) days after the
Commencement Date. Notwithstanding anything else herein, if Executive
voluntarily terminates his employment with the Companies without Good Reason
within one (1) year following the date of payment of the signing Bonus,
Executive shall repay to Incomnet a percentage of the Signing Bonus equal to
the percentage of the year remaining after the date of termination. The
repayment shall occur within sixty (60) days of the date of such termination.
(c) LONG TERM INCENTIVE PLAN. For each fiscal year or portion
thereof during the Employment Term, Executive shall be eligible to
participate in any stock option plan made available to senior executives of
the Incomnet in accordance with, and subject to the terms of,
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such plan. Incomnet hereby acknowledges that it intends to adopt a stock
option plan for use in connection of the recruitment of other senior
executives.
(d) STOCK GRANT. It is the intention of the parties hereto that
on the Commencement Date the Executive will receive stock rights which,
subject to the terms hereinafter set forth, will permit the Executive to
acquire five percent (5%) of the common stock of Incomnet outstanding on the
Commencement Date determined on a fully diluted basis. In order to
accomplish this result, Incomnet shall cause each of the following to occur:
(i) Prior to the Commencement Date, the Incomnet Board shall
designate thirteen (13) shares of its Preferred Shares as Series C preferred
stock and shall designate that each share of Series C preferred stock may be
converted into 100,000 shares of its common stock.
(ii) On the Commencement Date, Incomnet shall issue to the
Executive thirteen (13) shares of its Series C preferred stock (the "C
Preferred Shares"). The C Preferred Shares shall be subject to the following
restrictions:
(A) The Executive shall not be entitled to convert the C
Preferred Shares into Incomnet common stock until the Articles of
Incorporation of Incomnet have been amended to authorize a sufficient number
of additional shares of such common stock to permit exercise of the
conversion rights. The number of shares of Incomnet common stock to be
issued upon exercise of the conversion rights shall be adjusted to reflect
the impact of any common stock splits or stock dividends occurring after the
Commencement Date.
(B) In the event the Executive or his personal
representative, heirs or legatees at any time desire to sell, transfer or
assign any of the C Preferred Shares or the shares of common stock obtained
on conversion of the C Preferred Shares, such shares shall first be offered
for sale to Incomnet. The price at which such shares will be offered to
Incomnet will be calculated as follows:
(x) For purposes of such calculation, any
unconverted C Preferred Shares shall be deemed to have been converted into
Incomnet common stock.
(y) The shares of Incomnet common stock to be sold,
transferred or assigned (the "Transferred Shares"), shall be deemed at the
time of the offer to have a fair market value equal to the then current
public offering price for the same number of shares of Incomnet common stock
which are registered under the Securities Act of 1933.
(z) the offer price for the Transfer Shares will
equal the fair market value of the Transferred Shares calculated as specified
in paragraph (y) above (i) reduced by the fair market value of the
Transferred Shares as of the close of business two days after the
Commencement Date (the "Valuation Date") (calculated based on the public
market price as of the close of business on the Valuation Date as reported in
the WALL STREET
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JOURNAL for the same number of Incomnet common stock registered under the
Securities Act of 1933) and (ii) increased by one cent ($.01) for each share
of Incomnet common stock included in the Transferred Shares. The per share
public market price as of the close of business on the Valuation Date as
reported in the WALL STREET JOURNAL shall be reflected on Schedule I hereto.
The restrictions on the sale of Incomnet stock set forth in
this Section 4(d)(ii)(B) will never lapse. However, if Incomnet does not
complete the purchase of the shares of any stock offered for sale by the
Executive under the terms of this Section 4(d)(ii)(B), within thirty (30)
days from the date of the offer, the Executive shall thereafter be free to
sell such shares (the "Unrestricted Shares") free from such restrictions.
(C) The stock certificates representing the C Preferred
Shares and the common stock into which it is converted shall be legended to
reflect Incomnet's purchase rights set forth in paragraph B above. The
legend shall be removed from certificates representing the Unrestricted
Shares.
(iii) As expeditiously as possible after the Commencement
Date, Incomnet will use its best efforts to cause its Articles of
Incorporation to be amended to authorize a sufficient number of additional
shares of common stock to permit the conversion of the C Preferred Shares
into common stock.
(e) REGISTRATION RIGHTS AND CALL RIGHTS.
(i) REGISTRATION RIGHTS. After the first anniversary of the
Commencement Date, if at any time the Executive holds any Unrestricted Shares
which the Executive is restricted from reselling under the terms of Rule 144
promulgated under the Securities Act of 1933, then the Executive may request
that Incomnet effect the registration on Form S-3 (or a successor form) of
all of the Unrestricted Shares. Thereupon, Incomnet shall, as expeditiously
as possible, use its best efforts to effect such registration to the extent
permitted and in accordance with applicable law and at its expense.
(ii) CALL RIGHTS. If prior to the first anniversary of the
Commencement Date, there occurs either the termination of the Executive's
employment by the Companies for Cause pursuant to Section 7(e) hereof or the
voluntary termination of employment by Executive without Good Reason (as
defined in Section 7(d) hereof), Incomnet shall have an option (the
"Repurchase Option") to repurchase all, but not less than all, of the C
Preferred Shares, or the shares of common stock obtained on conversion of the
C Preferred Shares, which are owned by the Executive at the time of such
termination. The Repurchase Option must be exercised by written notice given
to the Executive within ten (10) business days from the date of the
termination of Executive's employment. The Repurchase Option shall expire if
not timely exercised, time being of the essence. Settlement with respect to
any timely exercised Repurchase Option shall occur within twenty (20) days
from the date of exercise of the Repurchase Option. The purchase price for
the stock subject to the Repurchase Option shall be calculated in accordance
with the terms of Section 4(d)(ii)(B) in the same
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manner as if the Executive had offered such stock for sale to Incomnet in
accordance with the terms of such Section on the date of termination of the
Executive's employment.
(f) OTHER COMPENSATION. Incomnet may, upon recommendation of the
Compensation Committee of the Incomnet Board, award to Executive such other
bonuses and compensation as it deems appropriate and reasonable.
5. EMPLOYEE BENEFITS AND FRINGES. (a) During the Employment Term,
Executive shall be entitled to participate in all pension, retirement,
savings, welfare and other pension and welfare employee benefit plans and
arrangements and shall be eligible to receive all fringe benefits and
perquisites generally maintained or provided by either of the Companies from
time to time for the benefit of senior executives of the Companies, in
accordance with their respective terms as in effect from time to time (other
than any special arrangement entered into by contract with an executive).
(b) During the Employment Term Incomnet shall make available to
Executive for his exclusive use a company leased automobile of the type
customarily provided to senior executive officers of Incomnet and its
affiliates or, if requested by Executive, will provide a car allowance of one
thousand ($1,000) per month. Incomnet shall in addition pay for the cost of
insurance, maintenance, garaging and fuel for such automobile. Executive
shall be responsible for any income tax consequences arising from the use of
the automobile under this arrangement.
(c) Incomnet agrees to reimburse Executive for (i) all reasonable
expenses incurred by Executive in moving from Xxxxxxxxxx County, Maryland to
Orange County, California, and (ii) all reasonable broker and closing costs
incurred by Executive in connection with the sale of Executive's current
principal residence and the purchase of a new principal residence in Orange
County, California. Executive shall be responsible for any income tax
consequences arising from the payments made under this Section 5(c).
(d) In order to facilitate the ability of the Executive to
purchase a new principal residence in Orange County, California, at the
request of the Executive, Incomnet will loan to the Executive an amount equal
to a percentage of the cost of such new principal residence which is equal to
the percentage differential in the median cost of housing in Xxxxxxxxxx
County, Maryland and Orange County, California. The loan will accrue
interest at the rate of eight percent (8%) per annum and the loan plus
accrued interest will be due upon the first to occur of (i) the sale of the
new principal residence or (ii) one year after the termination of the
Executive's employment hereunder.
(e) Incomnet shall provide Executive with a temporary housing
allowance for a period not to exceed six months for housing expenses in
Orange County, California which allowance shall not exceed two thousand
dollars ($2,000) per month, or as the parties may agree, the Company shall
make available for Executive other suitable temporary living quarters in
Orange County, California. If Executive incurs any income tax liability as a
result of the housing benefit pursuant to this Section 5(e), Incomnet shall
reimburse Executive for such tax liability on a fully grossed up basis.
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(f) Incomnet will reimburse the Executive for reasonable legal
fees incurred in negotiating this Agreement.
(g) During the Employment Term, Executive shall be entitled to
vacation each year in accordance with Incomnet's policies in effect from time
to time, but in no event less than five (5) weeks paid vacation per calendar
year. Executive shall also be entitled to such periods of sick leave as is
customarily provided by Incomnet for its senior executive officers.
6. BUSINESS EXPENSES. Upon submission of appropriate documentation,
Executive shall be reimbursed for the travel, entertainment and other
business expenses incurred by Executive in the performance of his duties
hereunder, in accordance with the applicable policies as in effect from time
to time.
7. TERMINATION.
(a) The employment of Executive under this Agreement shall
terminate upon the occurrence of any of the following events:
(i) the death of Executive;
(ii) the termination of Executive's employment by the
Companies due to Executive's Disability pursuant to Section 7(b) hereof;
(iii) the termination of Executive's employment by the
Executive for Good Reason pursuant to Section 7(c) hereof;
(iv) the termination of Executive's employment by the
Companies without Cause;
(v) the voluntary termination of employment by Executive
without Good Reason upon thirty (30) days' prior written notice;
(vi) the termination of the Employment Term in accordance with
Section 1 hereof;
(vii) the termination of Executive's employment by the
Companies for Cause pursuant to Section 7(e) hereof.
(b) DISABILITY. If, by reason of the same or related physical or
mental reasons, Executive is unable to carry out his material duties pursuant
to this Agreement for more than six (6) months in any twelve (12) month
period, the Companies may terminate Executive's employment for Disability
upon thirty (30) days prior written notice, at any time thereafter during
such twelve (12) month period in which Executive is unable to carry out his
duties as a result of the same or related physical or mental illness. Such
termination shall not be effective if Executive returns to the full time
performance of his material duties within such thirty (30) day notice period.
If Executive is eligible for disability payments prior to said termination
under any
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disability plan sponsored by either of the Companies, his Base Salary shall
be reduced by the amount of such disability payments.
(c) TERMINATION FOR GOOD REASON. A Termination for Good Reason
means a termination by Executive by written notice given within ninety (90)
days after the occurrence of the Good Reason event. For purposes of this
Agreement, "Good Reason" shall mean the occurrence or failure to cause the
occurrence, as the case may be, without Executive's express written consent,
of any of the following circumstances, unless such circumstances are fully
corrected prior to the date of determination specified in the Notice of
Termination for Good Reason (as defined in Section 7(d) hereof): (i) any
material diminution of Executive's responsibilities hereunder as President
and Chief Executive Officer of the Companies (except in each case in
connections with the termination of Executive's employment for Cause or
Disability or as a result of Executive's death, or temporarily as a result of
Executive's illness or other absence); (ii) Executive's removal from or
failure to be re-elected to, the Board of Directors of the Companies provided
the Executive desires to serve on such Boards, (other than for cause within
the meaning of the law of the state in which the Companies are then
incorporated); (iii) any material breach by either of the Companies of any
provision of this Agreement; or (iv) the occurrence of a Change in Control
(as defined in Exhibit A hereto).
(d) NOTICE OF TERMINATION FOR GOOD REASON. A Notice of
Termination for Good Reason shall mean a notice that shall indicate the
specific termination provision in Section 7(c) relied upon and shall set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for his termination for Good Reason. The failure by Executive to set
forth in the Notice of Termination for Good Reason any facts or circumstances
which contribute to the showing of Good Reason shall not waive any right of
Executive hereunder or preclude Executive from asserting such fact or
circumstance in enforcing his rights hereunder. The Notice of Termination
for Good Reason shall provide for a date of termination not less than thirty
(30) nor more than sixty (60) days after the date such Notice of Termination
for Good Reason is given.
(e) CAUSE. Subject to the notification provisions of Section 7(f)
below, Executive's employment hereunder may be terminated by the Companies
for Cause. For purposes of this Agreement, the term "Cause" shall be limited
to (i) willful misconduct by Executive with regard to either of the
Companies, their affiliates, their businesses or employees if such misconduct
is not cured within seven (7) days after written notice specifying the
misconduct or, to the extent it is not feasible to complete the cure within
such period, if the Executive shall commence the cure within such period and
complete the cure within thirty (30) days; (ii) the refusal of Executive to
follow the proper written direction of the Board of Directors of either or
both of the Companies, provided that the foregoing refusal shall not be
"Cause" if Executive in good faith believes that such direction is illegal,
unethical or immoral and promptly so notifies the entity or person giving the
direction, as applicable; (iii) continuing willful refusal by Executive to
attempt to perform the duties required of him hereunder (other than any such
failure resulting from incapacity due to physical or mental illness) after a
written demand for performance is delivered to Executive by the Incomnet
Board which specifically identifies the manner in which it is believed that
Executive has continually refused to attempt to perform his duties hereunder;
(iv) Executive being convicted of a felony (other than a felony involving a
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traffic violation); (v) the breach by Executive of any material fiduciary
duty owed by Executive to either or both of the Companies or their
affiliates; or (vi) Executive's material misappropriation or fraud with
regard to either or both of the Companies or its affiliates (other than good
faith expense account disputes).
(f) NOTICE OF TERMINATION FOR CAUSE. A Notice of Termination for
Cause shall mean a notice that shall indicate the specific termination
provision in Section 7(e) relied upon and shall set forth in reasonable
detail the facts and circumstances which provide for a basis for Termination
for Cause. The date of termination for a termination for Cause shall be the
date indicated in the Notice of Termination. Any purported termination for
Cause which is held by a court not to have been based on the grounds set
forth in this Agreement or not to have followed the procedures set forth in
this Agreement shall be deemed a termination by the Company without Cause,
and the Executive shall be awarded any reasonable attorney's fees incurred by
the Executive with respect to such court proceedings.
8. CONSEQUENCES OF TERMINATION OF EMPLOYMENT.
(a) DEATH. If Executive's employment is terminated during the
Employment Term by reason of Executive's death, the Employment Term under
this Agreement shall terminate without further obligations to Executive's
legal representatives under this Agreement or otherwise except for: (i) any
compensation earned but not yet paid, including without limitation, any
declared but unpaid bonus for the prior fiscal year, any unpaid Signing
Bonus, any amount of Base Salary or deferred compensation, if any, accrued or
earned but unpaid, any accrued vacation pay payable pursuant to the
Companies' policies, any unreimbursed business expenses payable pursuant to
Section 6, which amounts shall be promptly paid in a lump sum to Executive's
estate and any stock rights arising under Section 4(d); and (ii) any other
amounts or benefits owing to Executive under the then applicable employee
benefit or equity plans of the Companies, which shall be paid in accordance
with such plans.
(b) DISABILITY. If Executive's employment is terminated by reason
of Executive's Disability, Executive shall be entitled to receive the
payments and benefits to which his representatives would be entitled in the
event of a termination of employment by reason of his death pursuant to
Section 8(a)(i) and any amounts Executive is eligible to receive under any
long term disability policy or program maintained by the Companies and the
Companies shall have no further obligations to Executive under this Agreement
or otherwise.
(c) TERMINATION BY EXECUTIVE FOR GOOD REASON OR TERMINATION BY THE
COMPANY WITHOUT CAUSE. If (i) Executive terminates his employment hereunder
for Good Reason during the Employment Term or (ii) if Executive's employment
with the Companies is terminated by the Companies without Cause during the
Employment Term, the Company shall have no further obligations to Executive
under this Agreement or otherwise, except that, subject to Section 9 and 10
hereof, Executive shall be entitled to receive: (A) any unreimbursed business
expenses payable pursuant to Section 6, any stock rights arising under
Section 4(d), and any Base Salary, bonus, vacation pay or other compensation
accrued or earned, but not yet paid at the date of termination; (B) equal
monthly payments, in accordance with Incomnet's normal payroll
8
practices, of an amount equal to the monthly payments of Executive's then
Base Salary for a period of eighteen (18) months following the date of his
termination or until December 31, 2001 whichever is later; (C) reimbursement
for the cost of Executive's continued participation in Incomnet's health
insurance plan until the expiration of the maximum period permitted by COBRA
or until December 31, 2001 which ever shall occur first and (D) any other
amounts or benefits due Executive under the then applicable employee benefit,
long term incentive plans or equity plans in which he then participates as
shall be determined and paid in accordance with such plans.
(d) TERMINATION WITH CAUSE OR VOLUNTARY RESIGNATION WITHOUT GOOD
REASON OR DUE TO EXPIRATION OF THE EMPLOYMENT TERM. If Executive's
employment hereunder is terminated (i) by the Companies for Cause, or (ii)
voluntarily by Executive without Good Reason in accordance with Section
7(a)(v) hereof, or (iii) due to the expiration of the Employment Term in
accordance with Section 1 hereof, Executive shall be entitled to receive only
his Base Salary through the date of termination, any stock rights arising
under Section 4(d), any unreimbursed business expenses payable pursuant to
Section 6 and any accrued vacation pay payable pursuant to applicable
policies of the Companies. Executive's rights under any benefit plan or any
equity plan following such termination of employment shall be determined in
accordance with the provisions of the applicable benefit or equity plan.
9. NO MITIGATION: SET-OFF. In the event of any termination of
employment under Section 8, Executive shall be under no obligation to seek
other employment and, subject to Section 10 below, there shall be no offset
against any amounts due Executive under this Agreement on account of any
remuneration attributable to any subsequent employment that Executive may
obtain. Any amounts due under Section 8 are in the nature of severance
payments, or liquidated damages, or both, and are not in the nature of a
penalty. Such amounts are inclusive, and in lieu of any amounts payable
under any other salary continuation or cash severance arrangement of the
Companies and to the extent paid or provided under any other such arrangement
shall be offset from the amount due hereunder. The Companies shall have no
obligations to Executive upon a termination of employment except as provided
in Section 8 or as otherwise specified in this Agreement. If Executive dies
while receiving payments under Section 8(c), any remaining payments shall be
paid to Executive's estate.
10. CONFIDENTIAL INFORMATION, NON-COMPETITION AND NON-SOLICITATION OF
THE COMPANY. (a) (i) Executive acknowledges that as a result of his
employment by the Companies, Executive will obtain secret and confidential
information as to the Companies and their affiliates and the Companies and
their affiliates will suffer substantial damage, which would be difficult to
ascertain, if Executive should use such confidential information and that
because of the nature of the information that will be known to Executive it
is necessary for the Companies and their affiliates to be protected by the
prohibition against Competition as set forth herein, as well as the
Confidentiality restrictions set forth herein.
(ii) Executive acknowledges that the retention of nonclerical
employees employed by either or both of the Companies and their affiliates in
which either or both of the Companies and their affiliates have invested
training and depend on for the
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operation of their businesses is important to the businesses of the Companies
and their affiliates, that Executive will obtain unique information as to
such employees as an executive of the Companies and will develop a unique
relationship with such persons as a result of being an executive of the
Companies and, therefore, it is necessary for the Companies and their
affiliates to be protected from Executive's Solicitation of such employees as
set forth below.
(iii) Executive acknowledges that the provisions of this
Agreement are reasonable and necessary for the protection of the businesses
of the Companies and their affiliates and that part of the compensation paid
under this Agreement and the agreement to pay severance in certain instances
is in consideration for the agreements in this Section 10.
(b) Competition shall mean: (i) participating, directly or
indirectly, as an individual proprietor, partner, stockholder, officer,
employee, director, joint venturer, investor, lender, consultant or in any
capacity whatsoever within the United States of America, in a business in
competition with any business conducted by the Companies, provided, however,
that such participation shall not include (i) the mere ownership of not more
than one percent (1%) of the total outstanding stock of a publicly held
company; (ii) the performance of services for any enterprise to the extent no
portion of such services are performed, directly or indirectly, for the
portion of the enterprise in the aforesaid competition; or (iii) any activity
engaged in with the prior written approval of the Incomnet Board.
(c) Solicitation shall mean: recruiting, soliciting or inducing,
of any nonclerical employee or employees of either or both of the Companies
or their affiliates to terminate their employment with, or otherwise cease
their relationship with, either or both of the Companies or their affiliates
or hiring or assisting another person or entity to hire any nonclerical
employee of either or both of the Companies or their affiliates or any person
who within six (6) months before had been a nonclerical employee of either or
both of the Companies or their affiliates, provided, however, that
solicitation shall not include any of the foregoing activities engaged in
with the prior written approval of the Incomnet Board.
(d) If any restriction set forth with regard to Competition or
Solicitation is found by any court of competent jurisdiction, or an
arbitrator, to be unenforceable because it extends for too long a period of
time or over too great a range of activities or in too broad a geographic
area, it shall be interpreted to extend over the maximum period of time,
range of activities or geographic area as to which it may be enforceable. If
any provision of this Section 10 shall be declared to be invalid or
unenforceable, in whole or in part, as a result of the foregoing, as a result
of public policy or for any other reason, such invalidity shall not affect
the remaining provisions of this Section which shall remain in full force and
effect.
(e) During and after the Employment Term, Executive shall hold in
a fiduciary capacity for the benefit of the Companies and their affiliates
all secret or confidential information, knowledge or data relating to the
Companies and their affiliates, and their respective businesses, including
any confidential information as to customers of the Companies and their
affiliates, (i) obtained by Executive during his employment by the Companies
and their affiliates and (ii) not otherwise public knowledge or known within
the applicable industry (other than by
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acts of Executive in violation of this Agreement). Executive shall not,
without prior written consent of the Companies, unless compelled pursuant to
the order of a court or other governmental or legal body having jurisdiction
over such matter, communicate or divulge any such information, knowledge or
data to anyone other than the Companies and those designated by them. In the
event Executive is compelled by order of a court or other governmental or
legal body to communicate or divulge any such information, knowledge or data
to anyone other than the foregoing, he shall promptly notify the Companies of
any such order and he shall cooperate fully with the Companies in protecting
such information to the extent possible under applicable law.
(f) Upon termination of his employment with the Companies and
their affiliates, or at any time as the Companies may request, Executive will
promptly deliver to the Companies, as requested, all documents (whether
prepared by the Companies, an affiliate, Executive or a third party) relating
to either or both of the Companies, an affiliate or any of their businesses
or property which he may possess or have under his direction or control other
than documents provided to Executive in his capacity as a participant in any
employee benefit plan, policy or program of the Companies or any agreement by
and between Executive and the Companies with regard to Executive's employment
or severance.
(g) During his employment by the Companies Executive will not
enter into Competition with either or both of the Companies or their
affiliates. Furthermore, in the event of any termination of Executive's
employment for Cause or the voluntary termination of employment by Executive
without Good Reason, Executive for eighteen (18) months thereafter will not
enter into Competition with the Companies or engage in Solicitation.
(h) In the event of a breach or potential breach of this Section
10, Executive acknowledges that the Companies and their affiliates will be
caused irreparable injury and that money damages may not be an adequate
remedy and agree that the Companies and their affiliates shall be entitled to
injunctive relief (in addition to its other remedies at law) to have the
provisions of this Section 10 enforced.
11. EXECUTIVE'S REPRESENTATION. Executive represents and warrants to
the Companies that as of the date hereof there is no legal impediment to his
performing his obligations under this Agreement and neither entering into
this Agreement nor performing his contemplated service hereunder will violate
any agreement to which he is a party or the date hereof any other legal
restriction.
12. COMPANIES' REPRESENTATIONS. The Companies represent and warrant to
the Executive that as of the date hereof there are no legal impediments on
their performance of their obligations under the Agreement and that neither
the entering into of this Agreement nor the performing of their obligations
hereunder will violate any agreement in which they are a party as the date
hereof or any other legal restriction.
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13. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of California without
reference to principles of conflict of laws.
(b) ENTIRE AGREEMENT/AMENDMENTS. This Agreement and the
instruments contemplated herein, contain the entire understanding of the
parties with respect to the employment of Executive by the Companies and
supersedes any policy of the Companies with regard to severance payments and
any prior agreements between the Companies and Executive with regard to
employment or severance. There are no restriction, agreements, promises,
warranties, covenants, representations or undertakings between the parties
with respect to the subject matter herein other than those expressly set
forth herein and therein. This Agreement may not be altered, modified, or
amended except by written instrument signed by the parties hereto.
(c) NO WAIVER. The failure of a party to insist upon strict
adherence to any term of this Agreement on any occasion shall not be
considered a waver of such party's rights or deprive such party of the right
thereafter to insist upon strict adherence to that term or any other term of
this Agreement. Any such waiver must be in writing and signed by Executive or
an authorized officer of the Companies, as the case may be.
(d) ASSIGNMENT. This Agreement shall not be assignable by any of
the parties hereto except by operation of law.
(e) SUCCESSORS; BINDING AGREEMENT. This Agreement shall inure to
the benefit of and be binding upon the personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees legatees
and permitted assignees of the parties hereto.
(f) COMMUNICATIONS. For the purpose of this Agreement, notices
and all other communications provided for in this Agreement shall be in
writing and shall be deemed to have been duly given (i) when faxed or
delivered, or (ii) two business days after being mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed to the respective addresses set forth on Schedule II to this
Agreement, provided that all notices to the Companies shall be directed to
the attention of the Secretary of Incomnet, or to such other address as any
party may have furnished to the other in writing in accordance herewith.
Notice of change of address shall be effective only upon receipt.
(g) WITHHOLDING TAXES. The Companies may withhold from any and
all amounts payable under this Agreement such federal, state and local taxes
as may be required to be withheld pursuant to any applicable law or
regulation.
(h) SURVIVORSHIP. The respective rights and obligations of the
parties hereunder shall survive any termination of Executive's employment to
the extent necessary to the agreed preservation of such rights and
obligations.
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(i) COUNTERPARTS. This Agreement may be signed in counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
(j) HEADINGS. The headings of the sections contained in this
Agreement are for convenience only and shall not be deemed to control or
affect the meaning or construction of any provision of this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
INCOMNET, INC.
By: /s/ XXXX X. XXXXX
----------------------------------------
Name: Xxxx X. Xxxxx
Title: Chairman
NATIONAL TELEPHONE & COMMUNICATIONS, INC.
By: /s/ XXXX X. XXXXX
----------------------------------------
Name: Xxxx X. Xxxxx
Title Chairman
/s/ XXXXX XXXXXXX
----------------------------------------
Xxxxx Xxxxxxx
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EXHIBIT A
1. A "Change in Control" shall be deemed to have occurred (a) upon a
sale of substan tially all the assets of either of the Companies (excluding
a sale transaction between the Companies) or (b) if any "person" (as such
term is used in Sect ion 13(d) and 14 (d)(2) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), other than a person or group (as
such term is defined in Rule 13d-5(b) of the General Rules and Regulations
promulgated under the Exchange Act) (the "Rules and Regulations") of persons
who are affiliates (as such term is defined in Rule 12b-2 of the Rules and
Regulations) of Incomnet or NTC on the date hereof or Xxxx Xxxxx or his
issue and trusts and other entities formed primarily for their benefit, after
the date of the Agreement becomes the beneficial owner, directly of
indirectly, of securities of Incomnet represe nting forty percent (40%) or
more of the combined voting power of Incomnet's then outstanding securities
(including securities the holder of which has the right to convert into
voting securities of Incomnet).
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Schedule 1
(Per Share Market Price on Valuation Date)
$2.1875
--------------------------------------------------------------------------------
Schedule II
(Address for Notice)
Address for Notices to Incomnet, NTC and Xxxxx Xxxxxxx:
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
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