EMPLOYMENT AGREEMENT
This
Employment Agreement is made and entered into by and between VoIP, Inc. (the
"Company") and Xxxxxxx X. Xxxxxxx ("Executive") as of September 14, 2007 (the
"Effective Date").
WHEREAS,
the
EMPLOYER is desirous of employing Executive, and Executive wishes to be employed
by EMPLOYER in accordance with the terms and conditions set forth in this
Agreement.
NOW,
THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND PROMISES AND OTHER
GOOD
AND VALUABLE CONSIDERATION, THE RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED, IT
IS
MUTUALLY AGREED AS FOLLOWS:
1.
Position and Duties:
Executive shall be employed by the Company as its Executive
Chairman
("Chairman")
and Chief Executive Officer (“CEO”), reporting only to the Company's Board of
Directors. As its Chairman and CEO, Executive agrees to devote the necessary
business time, energy and skill to his duties at the Company, and will be
permitted
engage
in outside consulting provided said consulting services do not interfere with
Executive’s obligations to Company under the terms of this Agreement. Executive
agrees to advise the Board of any outside Consulting Services, and further
agrees that the Company’s Board of Directors shall make the sole determination
of whether a proposed consulting activity would interfere with Executive’s
obligations under this Agreement.
These
duties of Executive under this Agreement shall include all those duties
customarily performed by an Executive Chairman as well as providing
advice and consultation on general corporate matters, particularly related
to
shareholder and investor relations, assisting the Company with respect to
raising equity and other financing for the Company, and other projects as may
be
assigned by the Company’s Board of Directors on an as needed basis.
During
the term of Executive's employment, Executive shall be permitted to serve on
boards of directors of for-profit or not-for-profit entities provided such
service does not adversely affect the performance of Executive's duties to
the
Company under this Agreement, or are in conflict with the interests of the
Company.
In
addition to Executive’s appointment as Executive Chairman of the Board of
Directors of the Company, Executive shall be nominated to stand for election
to
the Board of Directors at the next scheduled shareholders meeting and shall
also
be entitled to name an additional designee to be elected to the Board at the
next shareholder meeting of the Company. As a member of the Company's Board,
Executive shall continue to be subject to the provisions of the Company's bylaws
and all applicable general corporation laws relative to his position on the
Board. In addition to the Company's bylaws, as a member of the Board, Executive
and his designee shall also be subject to the statement of powers, both specific
and general, set forth in the Company's Articles of Incorporation.
2.
Term of Employment:
This
Agreement shall remain in effect for a period of three years from the Effective
Date, and thereafter will automatically renew for successive one year periods
unless either party provides ninety days' prior notice of termination. In the
event the Company elects to terminate the Agreement, such termination shall
be
considered to be an Involuntary Termination, and Executive shall be provided
benefits as provided in this Agreement. Upon the termination of Executive's
employment for any reason, neither Executive nor Company shall have any further
obligation or liability under this Agreement to the other, except as set forth
below.
3.
Compensation:
Executive shall be compensated by the Company for his services as
follows:
(a)
Base Salary:
As
Executive Chairman, Executive shall be paid a monthly Base Salary of
$20,833.33
per month ($250,000.00 on an annualized basis), subject to applicable
withholding, in accordance with the Company's normal payroll procedures.
Executive's salary shall be reviewed on at least an annual basis and may be
adjusted as appropriate, but in no event shall it be less. In the event of
such
an adjustment, that amount shall become Executive's Base Salary. Furthermore,
during the term of this Agreement, in no event shall Executive's compensation
be
less
than
any other officer or employee of the Company or any subsidiary.
(b)
Benefits:
Executive shall have the right, on the same basis as other senior executives
of
the Company, to participate in and to receive benefits under any of the
Company's employee benefit plans, as such plans may be modified from time to
time, and provided that in no event shall Executive receive less than (4) four
weeks paid vacation per annum and (6) six paid sick/five paid personal days
per
annum. Executive will also be entitled to a monthly vehicle allowance of
$1,500.00.
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(c)
Performance Bonus:
Executive shall have the opportunity to earn a performance bonus in accordance
with the Company's Performance Bonus Plan; as such plan may be modified over
time. Pursuant to the Performance Bonus Plan, Executive will have a target
bonus
for meeting established objective performance objectives. The Bonus shall
consist of performance-based stock options which and shall be included in the
Company's Employee Stock Option Plan. In the event the performance criteria
and
formal Bonus Plan is not in effect at any time during the term of this
Agreement, then during said time that the Bonus Plan is not in effect, the
Company will pay a $15,000 cash bonus per quarter to Executive until the
Performance Bonus Plan is in place.
(d)
Stock Options:
Executive shall receive 10,000,000 stock options (the “Options”) to purchase
10,000,000 shares of the Company’s common stock, par value $0.001 (the “Common
Stock”). The Options are exercisable at $.01 per share and
vest as
of the date this agreement is executed by both parties and are exercisable
for a
period of five years from the effective date of this Agreement. Additionally,
the Options are subject to a cashless exercise provision whereby payment upon
exercise of the Options may be made at the option of the Executive either in
(i) cash, wire transfer or by certified or official bank check payable to
the order of the Company equal to the applicable aggregate exercise price,
(ii)
by delivery of Common Stock issuable upon exercise of the Options in accordance
with Section (A) below (“Cashless Exercise”) or (iii) by a
combination of any of the foregoing methods (in accord with Section (A) below),
for the number of shares of Common Stock specified in such form (as such
exercise number shall be adjusted to reflect any adjustment in the total number
of shares of Common Stock issuable to the Executive per the terms of the
Options) and the Executive shall thereupon be entitled to receive the number
of
duly authorized, validly issued, fully paid and nonassessable shares of Common
Stock determined as provided herein.
(A) If
the
Fair Market Value of one share of Common Stock is greater than the exercise
price (at the date of calculation as set forth below) and no Registration
Statement relating to the shares of Common Stock underlying the Options is
in
effect, in lieu of exercising the Options for cash, the Executive may elect
to
receive shares equal to the value (as determined below) of the Option (or the
portion thereof being cancelled) by surrender of the Option at the principal
office of the Company together with the properly endorsed notice of cashless
exercise in which event the Company shall issue to the Executive a number of
shares of Common Stock computed using the following formula:
X=Y
(A-B)
A
Where X= the
number of shares of Common Stock to be issued to the Executive
Y= the
number of shares of Common Stock purchasable under the Option or, if only a
portion of the Option is being exercised, the portion of the Option being
exercised (at the date of such calculation)
A= the
Fair
Market Value of one share of the Company’s Common Stock (at the date of such
calculation)
B= Exercise
Price (as adjusted to the date of such calculation)
The
Company grants Executive cost free piggyback registration rights for the shares
underlying the Options and will use its best efforts to first include the
options in an existing approved option benefits plan and register the underlying
shares in a Form S-8 Registration statement, or thereafter in the next
registration statement filed by the Company.
It
is
further agreed that Executive will be entitled to receive additional options
from time to time during the term of the within Agreement to assure that
Executive has the right to exercise options to maintain beneficial ownership
of
the Company’s Common Stock in the equivalent of a minimum of 5% (five percent)
of the issued and outstanding shares of Common Stock. For the avoidance of
doubt
regarding the issuance of additional options to Executive under this Agreement,
said additional options will contain the same terms and conditions as the
Options awarded under this Agreement. The Company will issue any additional
Options to Executive pursuant to this provision within ten (10) days of the
end
of a fiscal quarter.
(e)
Expenses:
Company
shall reimburse Executive for reasonable travel, lodging, entertainment and
meal
expenses incurred in connection the performance of services within this
Agreement.
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(f)
Travel: Executive
shall travel as necessary from time to time to satisfy his performance and
responsibilities under this Agreement.
(g)
Home and Satellite Office:
Executive shall be reimbursed for expenses associated with maintaining a home
office. (i.e. Bandwidth, VPN). Additionally, should Executive determine it
necessary for the performance of his responsibilities under this Agreement
that
he have a satellite office or the like, the Company will seek to accommodate
Executive by providing a suitable office at a location so determined by
Executive.
4.
Effect of Termination of Employment:
(a)
Voluntary Termination, Death or Disability:
In the
event of Executive's voluntary termination from employment with the Company,
Executive shall be entitled to no compensation or benefits from the Company
other than those earned under Section 3 through the date of his termination
and,
in the case of each stock option, restricted stock award or other Company
stock-based award granted to Executive, the extent to which such awards are
vested through the date of his termination. In the event that Executive's
employment terminates as a result of his death or disability, Executive shall
be
entitled to a pro-rata
share of the Target Bonus (presuming performance meeting, but not exceeding,
target performance goals) in addition to all compensation and benefits earned
under Section 3 through the date of termination.
(b)
Termination for Cause:
If
Executive's employment is terminated by the Company for Cause, Executive shall
be entitled to no compensation or benefits from the Company other than those
earned under Section 3 through the date of his termination and, in the case
of
each stock option, restricted stock award or other Company stock-based award
granted to Executive, the extent to which such awards are vested through the
date of his termination. In the event that the
Company
terminates Executive's employment for Cause, the Company shall provide written
notice to Executive of that fact prior to, or concurrently with, the termination
of employment. Failure to provide written notice that the Company contends
that
the termination is for Cause shall constitute a waiver of any contention that
the termination was for Cause, and the termination shall be irrebuttably
presumed to be an Involuntary Termination.
(c)
Involuntary Termination During Change in Control Period:
If
Executive's employment with the Company terminates as a result of a Change
in
Control Period Involuntary Termination, then, in addition to any other benefits
described in this Agreement, Executive shall receive the following:
(i)
all
compensation and benefits earned under Section 3 through the date of Executive's
termination of employment;
(ii)
a lump
sum payment equivalent to the greater of (a) the bonus paid under the
Performance Bonus Plan for the year immediately prior to the year in which
the
Change in Control occurred and (b) the Target Bonus under the Performance Bonus
Plan in effect immediately prior to the year in which the Change in Control
occurs;
(iii)
a lump
sum payment equivalent to the remaining Base Salary (as it was in effect
immediately prior to the Change in Control) due Executive from the date of
Involuntary Termination to the end of the term of this Agreement or six (6)
months Base Salary, whichever is the greater; and
(iv)
reimbursement for the cost of medical, life, disability insurance coverage
at a
level equivalent to that provided by the Company for a period expiring upon
the
earlier of: (a) one year; or (b) the time Executive begins alternative
employment wherein said insurance coverage is available and offered to
Executive. It shall be the obligation of Executive to inform the Company that
new employment has been obtained.
Unless
otherwise agreed to by Executive at the time of Involuntary Termination, the
amount payable to Executive under subsections (i) through (iii), above, shall
be
paid to Executive in a lump sum within thirty (30) days following Executive's
termination of employment. The amounts payable under subsection (iv) shall
be
paid monthly during the reimbursement period.
(d)
Termination Without Cause in the Absence of Change in Control:
In
the
event that Executive's employment terminates as a result of a Non Change in
Control Period Involuntary Termination, then Executive shall receive the
following benefits:
(i)
all
compensation and benefits earned under Section 3 through the date of the
Executive's termination of employment;
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(iii)
a lump
sum payment equivalent to the remaining Base Salary (as it was in effect
immediately prior to the Change in Control) due Executive to the end of the
term
of this Agreement or six (6) months Base Salary, whichever is the greater;
and
(iv)
reimbursement for the cost of medical, life and disability insurance coverage
at
a level equivalent to that provided by the Company for a period of the earlier
of: (a) one year; or (b) the time Executive begins alternative employment
wherein said insurance coverage is available and offered to Executive. It shall
be the obligation of Executive to inform the Company that new employment has
been obtained.
Unless
otherwise agreed to by Executive, the amount payable to Executive under
subsections (i) through (iii) above shall be paid to Executive in a lump sum
within thirty (30) days following Executive's termination of employment. The
amounts payable under subsection (iv) shall be paid monthly during the
reimbursement period.
(e)
Resignation with Good Reason During Change in Control Period:
If
Executive resigns his employment with the Company as a result of a Change in
Control Period Good Reason, then, in addition to any other benefits described
in
this Agreement, Executive shall receive the following.
(i)
all
compensation and benefits earned under Section 3 through the date of the
Executive's termination of employment;
(ii)
a lump
sum payment equivalent to the greater of (a) the bonus paid under the
Performance Bonus Plan for the year immediately prior to the year in which
the
Change in Control occurred and (b) the Target Bonus under the Performance Bonus
Plan in effect immediately prior to the year in which the Change in Control
occurs ;
(iii)
a lump
sum payment equivalent to the remaining Base Salary (as it was in effect
immediately prior to the Change in Control) due Executive from the date of
Involuntary Termination to the end of the term of this Agreement or six (6)
months Base Salary, whichever is the greater; and
(iv)
reimbursement for the cost of medical, life and disability insurance coverage
at
a level equivalent to that provided by the Company for a period of the earlier
of: (a) one year; or (b) the time Executive begins alternative employment
wherein said insurance coverage is available and offered to Executive. It shall
be the obligation of Executive to inform the Company that new employment has
been obtained.
Unless
otherwise agreed to by Executive, the amount payable to Executive under
subsections (i) through (iii) above shall be paid to Executive in a lump sum
within thirty (30) days following the Executive's
termination of employment. The amounts payable under subsection (iv) shall
be
paid monthly during the reimbursement period.
(f)
Resignation with Good Reason in the Absence of Change in
Control:
If
Executive resigns his employment with the Company as a result of a Non Change
in
Control Period Good Reason, then, in addition to any other benefits described
in
this Agreement, Executive shall receive the following.
(i)
all
compensation and benefits earned under Section 3 through the date of the
Executive's termination of employment;
(ii)
a lump
sum payment equivalent to the greater of (a) the bonus paid under the
Performance Bonus Plan for the year immediately prior to the year in which
the
Change in Control occurred and (b) the Target Bonus under the Performance Bonus
Plan in effect immediately prior to the year in which the Change in Control
occurs;
(iii)
a lump
sum payment equivalent to the remaining Base Salary (as it was in effect
immediately prior to the Change in Control) due Executive from the date of
Involuntary Termination to the end of the term of this Agreement or six (6)
months Base Salary, whichever is the greater; and
(iv)
reimbursement for the cost of medical, life and disability insurance coverage
at
a level equivalent to that provided by the Company for a period of the earlier
of: (a) one year; or (b) the time Executive begins alternative employment
wherein said insurance coverage is available and offered to Executive. It shall
be the obligation of Executive to inform the Company that new employment has
been obtained.
Unless
otherwise agreed to by Executive, the amount payable to Executive under
subsections (i) through (iii) above shall be paid to Executive in a lump sum
within thirty (30) days following the Executive's
termination of employment. The amounts payable under subsection (iv) shall
be
paid monthly during the reimbursement period.
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(g)
Resignation from Positions:
In the
event that Executive's employment with the Company is terminated for any reason,
on the effective date of the termination Executive shall simultaneously resign
from each position he holds on the Board and/or the Board of Directors of any
of
the Company's affiliated entities and any position Executive holds as an officer
of the Company or any of the Company's affiliated entities.
5.
Certain Definitions:
For the
purpose of this Agreement, the following capitalized terms shall have the
meanings set forth below:
(a)
"Cause" shall mean any of
the following occurring on or after the date of this Agreement :
(i)
Executive's theft, dishonesty, breach of fiduciary duty for personal profit,
or
falsification of any employment or Company record;
(ii)
Executive's willful violation of any law, rule, or regulation (other than
traffic violations, misdemeanors or similar offenses) or final cease-and-desist
order, in each case that involves moral turpitude;
(iii)
Executive's intentional failure to perform stated duties, provided Executive
has
not cured such failure following 20 days prior written notice of such
failure;
(iv)
Executive's improper disclosure of the Company's confidential or proprietary
information;
(v)
any
material breach by Executive of the Company's Code of Professional Conduct,
which breach shall be deemed "material" if it
results
from an intentional act by Executive and has a material detrimental effect
on
the Company's reputation or business; or
(vi)
any
material breach by Executive of this Agreement, which breach, if curable, is
not
cured within thirty (30) days following written notice of such breach from
the
Company.
(b) "Change in Control" shall mean the occurrence of any of the following
events:
(i)
(X) any
"person" (as such term is used in Section 13 (d) and 14 (d) of the Securities
Exchange Act of 1934, as amended) (other than Executive, Xxxxx Xxxxx or Xxxxxxx
Xxxxxxx) becomes the "beneficial owner" (as defined in Rule 13d-3 under said
Act), directly or indirectly, of securities of the Company representing more
than fifty percent (50%) of the total combined voting power represented by
the
Company's then outstanding voting securities other than the acquisition of
the
Company's Common Stock by a Company-sponsored employee benefit plan or through
the issuance of shares sold directly by the Company to a single acquirer, or
(Y)
any "person" (as such term is used in Section 13 (d) and 14 (d) of the
Securities Exchange Act of 1934, as amended) becomes the "beneficial owner"
(as
defined in Rule 13d-3 under said Act) directly or indirectly, of securities
of
the Company representing less than fifty percent (50%) of the total combined
voting power represented by the Company's then outstanding voting securities,
but in connection with the person's acquisition of securities the person
acquires the right to terminate the employment of all or a portion of the
Company's management team;
(ii)
the
Company is party to a merger or consolidation which results in the holders
of
the voting securities of the Company outstanding immediately prior thereto
failing to retain immediately after such merger or consolidation direct or
indirect beneficial ownership of more than fifty percent (50%) of the total
combined voting power of the securities entitled to vote generally in the
election of directors of the Company or the surviving entity outstanding
immediately after such merger of consolidation.
(iii)
a
change in the composition of the Board occurring within a period of twenty-four
(24) consecutive months, as a result of which fewer than a majority of the
directors are Incumbent Directors;
(iv)
effectiveness of an agreement for the sale, lease or disposition by the Company
of all or substantially all of the Company's assets; or
(v)
a
liquidation or dissolution of the Company.
(c)
"Change in Control
Period" shall mean the period commencing on the date
sixty (60) days prior to the date of consummation of the Change of Control
and
ending sixty (60) days following of same date of consummation of the Change
of
Control..
(d)
"Change in Control
Period Good Reason" shall mean Executive's resignation for any of the following
conditions, first occurring during a Change in Control Period and occurring
without Executive's written consent:
5
(i)
a
decrease in Executive's Base Salary and/or a decrease in Executive's Target
Bonus (as a multiple of Executive's Base Salary) under the Performance Bonus
Plan or employee benefits other than as part of any across-the-board reduction
applying to all senior executives and not resulting in those senior executives
receiving lesser benefits than similarly situated executives of an
acquirer;
(ii)
a
material, adverse change in Executive's title, authority, responsibilities,
as
measured against Executive's title, authority, responsibilities or duties
immediately prior to such change.
(iii)
a
change in the Executive's ability to maintain his principal workplace at
multiple or satellite offices;
(iv)
any
material breach by the Company of any provision of this Agreement, which breach
is not cured within thirty (30) days following written notice of such breach
from Executive;
(v)
any
failure of the Company to obtain the assumption of this Agreement by any of
the
Company's successors or assigns by purchase, merger, consolidation, sale of
assets or otherwise.
(vi)
any
purported termination of Executive's employment for "material breach of
contract" which is purportedly effected without providing the "cure" period,
if
applicable, described in Section 6 (a)(iii) or (vi), above.
The
effective date of any Change in Control Period Involuntary Termination shall
be
the date of notification to the Executive of the termination of employment
by
the Company or the date of notification to the Company of the resignation from
employment by the Executive for Change in Control Period Good
Reason.
(e) "Non Change in Control Period Good Reason" shall mean the Executive's
resignation within six months of any of the following conditions first occurring
outside of a Change in Control Period and occurring without Executive's written
consent:
(i)
a
decrease in Executive's total cash compensation opportunity (adding Base Salary
and Target Bonus) of greater than ten percent (10%);
(ii)
a
material, adverse change in Executive's title, authority, responsibilities
or
duties, as measured against Executive's title, authority, responsibilities
or
duties immediately prior to such change;
(iii)
any
material breach by the Company of a provision of this Agreement, which breach
is
not cured within thirty (30) days following written notice of such breach from
Executive;
(iv)
any
change in the Executive's ability to maintain his principal workplace at
multiple or satellite offices;
(v)
any
purported termination of Executive's employment for "material breach of
contract" which is purportedly effected without providing the "cure" period,
if
applicable, described in Section 6 (a) (iii) or (vi), above.
The
effective date of any Non Change in Control Period Involuntary Termination
shall
be the date of notification to the Executive of the termination of employment
by
the Company or the date of notification to the Company of the resignation from
employment by the Executive for Non Change in Control Period Good
Reason.
(f)
"Incumbent Directors" shall mean members of the Board who either (a) are members
of the Board as of the date hereof, or (b) are elected, or nominated for
election, to the Board with the affirmative vote of at least a majority of
the
Incumbent Directors at the time of such election or nomination (but shall not
include an individual whose election or nomination is in connection with an
actual or threatened proxy contest relating to the election of members of the
Board).
(g)
"Change
in Control Period Involuntary Termination" shall mean during a Change in Control
Period the termination by the Company of Executive's employment with the Company
for any reason other than Cause, Executive's death or Executive's Disability;
or
(h)
"Non
Change in Control Period Involuntary Termination" shall mean outside a Change
in
Control Period the termination by the Company of Executive's employment with
the
Company for any reason other than Cause, Executive's death or Executive's
disability.
6
6.
Dispute Resolution:
In the
event of any dispute or claim relating to or arising out of this Agreement
(including, but not limited to, any claims of breach of contract, wrongful
termination or age, sex, race or other discrimination), Executive and the
Company agree that all such disputes shall be fully addressed and finally
resolved by (1) binding arbitration conducted by the
American
Arbitration Association in New York City, in the State of New York in accordance
with its National Employment Dispute Resolution rules or (2) in any federal
or
state court located in New York, New York. In connection with any such
arbitration, the Company shall bear all costs not otherwise born by a plaintiff
in a court proceeding. The Company agrees that any decisions of the Arbitration
Panel will be binding and enforceable in any state that the Company conducts
the
operation of its business.
7.
Attorneys' Fees:
The
prevailing party shall be entitled to recover from the losing party its
attorneys' fees and costs incurred in any action brought to enforce any right
arising out of this Agreement.
8.
Restrictive Covenants:
(b)
Non-Competition.
The
Executive shall not, while employed by the Company and for a period of one
year
following the Date of Termination for Cause, or Resignation without Good Reason,
engage or participate, directly or indirectly (whether as an officer, director,
employee, partner, consultant, or otherwise), in any business that manufactures,
markets or sells products that directly competes with any product of the Company
that is significant to the Company's business based on sales and/or
profitability of any such product as of the date of termination of Executive's
employment with the Company. Nothing herein shall prohibit Executive from being
a passive owner of less than 5 % stock of any entity directly engaged in a
competing business.
(c) Property Rights; Assignment of Inventions.
With
respect to information, inventions and discoveries or any interest in any
copyright and/or other property right developed, made or conceived of by
Executive, either alone or with others, during his employment by Employer
arising out of such employment or pertinent to any field of business or research
in which, during such employment, Employer is engaged or (if such is known
to or
ascertainable by Executive) is considering engaging, Executive hereby
agrees:
(i)
that all
such information, inventions and discoveries or any interest in any copyright
and/or other property right, whether or not patented or patentable, shall be
and
remain the exclusive property of the Employer;
(ii)
to
disclose promptly to an authorized representative of Employer all such
information, inventions and discoveries or any copyright and/or other property
right and all information in Executive's possession as to possible applications
and uses thereof;
(iii)
not to
file any patent application relating to any such invention or discovery except
with the prior written consent of an authorized officer of Employer (other
than
Executive);
(iv)
that
Executive hereby waives and releases any and all rights Executive may have
in
and to such information, inventions and discoveries, and hereby assigns to
Executive and/or its nominees all of Executive's
right,
title and interest in them, and all Executive's right, title and interest in
any
patent, patent application, copyright or other property right based thereon.
Executive hereby irrevocably designates and appoints the Company and each of
its
duly authorized officers and agents as his agent and attorney-in-fact to act
for
him and on his behalf and in his stead to execute and file any document and
to
do all other lawfully permitted acts to further the prosecution, issuance and
enforcement of any such patent, patent application, copyright or other property
right with the same force and effect as if executed and delivered by Executive;
and
(v)
at the
request of the Company, and without expense to Executive, to execute such
documents and perform such other acts as Employer deems necessary or
appropriate, for Employer to obtain patents on such inventions in a jurisdiction
or jurisdictions designated by Employer, and to assign to Employer or its
designee such inventions and any and all patent applications and patents
relating thereto.
7
9.
General:
(a)
Successors and Assigns:
The
provisions of this Agreement shall inure to the benefit of and be binding upon
the Company, Executive and each and all of their respective heirs, legal
representatives, successors and assigns. The duties, responsibilities and
obligations of Executive under this Agreement shall be personal and not
assignable or delegable by Executive in any manner whatsoever to any person,
corporation, partnership, firm, company, joint venture or other entity.
Executive may not assign, transfer, convey, mortgage, pledge or in any other
manner encumber the compensation or other benefits to be received by him or
any
rights which he may have pursuant to the terms and provisions of this
Agreement.
(b)
Amendments; Waivers: No
provision of this Agreement shall be modified, waived or discharged unless
the
modification, waiver or discharge is agreed to in writing and signed by
Executive and by an authorized officer of the Company. No waiver by either
party
of any breach of, or of compliance with, any condition or provision of this
Agreement by the other party shall be considered a waiver of any other condition
or provision or of the same condition or provision at another time.
(c)
Notices:
Any
notices to be given pursuant to this Agreement by either party may be effected
by personal delivery or by overnight delivery with receipt requested. Mailed
notices shall be addressed to the parties at the addresses stated below, but
each party may change its or his/her address by written notice to the other
in
accordance with this subsection (c).Mailed notices to Executive shall be
addressed as follows:
Xxxxxxx
X. Xxxxxxx
0000
Xxxxxxx Xxxxxx
Xxxx,
XX
00000
Chief
Executive Officer
VoIP,
Inc.
00000
XX
00xx Xxxxxx, Xxxxx 000
Xxxxxx
Xxxx, Xxxxxxx 00000
(d)
Entire Agreement:
This
Agreement constitutes the entire employment agreement between Executive and
the
Company regarding the terms and conditions of his employment, with the exception
of (a) the agreement described in Section 7 and (b) any stock option, restricted
stock or other Company stock-based award agreements between Executive and the
Company to the extent not modified by this Agreement. This Agreement (including
the documents described in (a) and (b) herein) supersedes all prior
negotiations, representations or agreements between Executive and the Company,
whether written or oral, concerning Executive's employment by the
Company.
(e)
Withholding Taxes:
All
payments made under this Agreement shall be subject to reduction to reflect
taxes required to be withheld by law.
(f) Counterparts: This
Agreement may be executed by the Company and Executive in counterparts, each
of
which shall be deemed an original and which together shall constitute one
instrument.
(g)
Headings:
Each and
all of the headings contained in this Agreement are for reference purposes
only
and shall not in any manner whatsoever affect the construction or interpretation
of this Agreement or be deemed a part of this Agreement for any purpose
whatsoever.
(h) Savings Provision:
To the
extent that any provision of this Agreement or any paragraph, term, provision,
sentence, phrase, clause or word of this Agreement shall be found to be illegal
or unenforceable for any reason, such paragraph, term, provision, sentence,
phrase, clause or word shall be modified or deleted in such a manner as to
make
this Agreement, as so modified, legal and enforceable under applicable laws.
The
remainder of this Agreement shall continue in full force and
effect.
(i)
Construction:
The
language of this Agreement and of each and every paragraph, term and provision
of this Agreement shall, in all cases, for any and all purposes, and in any
and
all circumstances whatsoever be construed as a whole, according to its fair
meaning, not strictly for or against Executive or the Company, and with no
regard whatsoever to the identity or status of any person or persons who drafted
all or any portion of this Agreement.
(j)
Further Assurances:
From
time to time, at the Company's request and without further consideration,
Executive shall execute and deliver such additional documents and take all
such
further action as reasonably requested by the
Company to be necessary or desirable to make effective, in the most expeditious
manner possible, the terms of this Agreement and to provide adequate assurance
of Executive's due performance hereunder.
8
(k)
Governing Law: Executive
and the Company agree that this Agreement shall be interpreted in accordance
with and governed by the laws of the State of New York.
(l)
Board Approval:
The
Company warrants to Executive that the Board of Directors of the Company has
ratified and approved the within Agreement, and that the Company will cause
the
appropriate disclosure filing to be made with the Securities and Exchange
Commission in a timely manner.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date and
year written below.
| September 14, 2006 | /s/ Xxxxxxx X. Xxxxxxx | ||
|
Xxxxxxx X. Xxxxxxx |
| September 14, 2006 |
VoIP,
Inc.
|
||
| By: |
/s/ Xxxxx
Xxxxx
|
||
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