AGREEMENT
AGREEMENT dated as of the 1st day of December, 1998 by and
between V Band Corporation, a New York Corporation with a principal place of
business at 000 Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000 and Xxxxxxxx Xxxxxxx, an
individual with a residence at [address deleted] (the "Executive").
WITNESSETH
WHEREAS, Executive is a key employee of the Company (as that
term is hereinafter defined) and the Company desires to provide Executive with
the compensation benefits described in this Agreement as an inducement to his
high level of commitment to advance the best interests of the Company.
NOW, THEREFORE, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Supplemental Agreement. This Agreement is supplemental to
the Executive's employment arrangements with the Company.
2. Change of Control Payment. If a Change of Control (as
hereinafter defined) of the Company occurs at any time prior to December 31,
1999, the Company will pay the Executive the amount of $125,000. This payment
will be made to the Executive in twelve equal monthly installments, commencing
on the date of the Change of Control of the Company. The Executive's right to
receive the payments provided by this agreement are subject to the following
conditions:
a) The Executive will not be entitled to receive any
payments under the agreement if the Executive voluntarily terminates his
employment with the Company prior to the date of the change of control; and
b) The Executive will not be entitled to any payments
after the date the Company terminates the Executive's employment for Cause (as
defined in Section 3 of this Agreement).
3. Definitions. For purposes of this Agreement, the following
terms shall have the following meanings:
a) "Cause" shall mean fraud, criminal wrongdoing, or
intentional misconduct by the Executive, or the willful or negligent failure to
perform the Executive's responsibilities, which failure continues for a period
of fourteen (14) calendar days after the employee has received documented,
written notice of such failures.
b) "Change of Control" shall mean the occurrence of
any of the following events: (1) a "change of control" of the Company that is
required to be reported to the Securities and Exchange Commission; (2) 50% or
more of the outstanding shares of the Company's Common Stock is acquired or
controlled by one person, group, or entity; (3) the consummation of a merger,
consolidation, or other business combination in which the holders of the
Company's Common Stock immediately preceding the consummation of such merger,
consolidation, or other business combination do not immediately after the
consummation of such merger, consolidation, or business combination hold 50% or
more of the voting securities of the surviving corporation of such transaction.
c) "Company" shall mean V Band Corporation and, in
the event of a merger, consolidation, or business combination in which V Band
Corporation is not the surviving corporation, the corporation which is the
surviving corporation.
4. Miscellaneous.
a) This Agreement and the rights and obligations of
the parties hereunder shall be governed by and construed in accordance with the
internal substantive laws of the State of New York, without giving effect to the
conflicts of law provisions thereof.
b) The Executive shall not have any right to
transfer, assign, hypothecate or otherwise encumber any part or all of the
amounts payable hereunder.
c) This Agreement may not be amended, altered or
modified, except by a written instrument signed by the parties hereto, or their
respective successors, and may not be otherwise terminated except as provided
herein.
d) Once change of control occurs as outlined in this
Agreement, and payments have begun, executive shall not be entitled to receive
any payment under the Severance Agreement dated June 18, 1998, a copy of which
is attached hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first written above.
V BAND CORPORATION
By: /s/Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
Chairman & CEO
/s/ Xxxxxxxx Xxxxxxx
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Xxxxxxxx Xxxxxxx
