CHIEF EXECUTIVE OFFICER CHANGE IN CONTROL AGREEMENT
THIS AGREEMENT dated October 1, 1998 is made by and between Educational
Video Conferencing, Inc., a Delaware Corporation (the "Company"), and Xx. Xxxx
X. Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxxxxxx, XX 00000 ("Executive").
WHEREAS, the Company was founded on the vision of Executive; and
WHEREAS, the Company considers it essential, to the best interests of
the Company, its stockholders, and its employees, generally, to xxxxxx the
continuous employment of the Executive; and
WHEREAS, the Company is currently contemplating an initial public
offering; and
WHEREAS, the Board of Directors of the Company (the "Board") recognizes
that, as is the case with many publicly held corporations, the possibility of a
Change in Control (as defined in the last Section hereof) exists and that such
possibility, and the resultant uncertainty, may result in the departure or
distraction of the Executive to the detriment of the Company and its
stockholders; and
WHEREAS, the Board has determined that appropriate steps should be
taken to encourage the continued attention and dedication of the Executive to
his assigned duties without distraction in the face of potentially disrupting
circumstances arising from the possibility of a Change in Control;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained and other good and valuable consideration, the
Company and the Executive hereby agree as follows:
1.0 DEFINED TERMS. Capitalized terms used in this Agreement are defined in
the last Section hereof.
2.0 TERM OF AGREEMENT. This Agreement shall commence on the date hereof and
shall continue in effect through September 30, 2001; provided, however, that
commencing on January 1, 2000 and each January 1st thereafter, the term of this
Agreement shall automatically be extended for one additional year unless, not
later than June 30th immediately preceding that January 1st, the Company or the
Executive shall have given notice not to extend this Agreement or a Change in
Control shall have occurred prior to such June 30th; provided, however, if a
Change in Control shall have occurred during the term of this Agreement, this
Agreement shall continue in effect for a period of not less than thirty-six (36)
months beyond the date such Change in Control occurred.
3.0 COMPANY'S COVENANT'S SUMMARIZED. In order to induce the Executive to
remain in the employ of the Company and in consideration of the Executive's
covenants set forth in Section 4.0 hereof, the Company agrees, under the
conditions described herein, to pay the Executive the "Severance Payments"
described in Section 6.1 hereof and the other payments and benefits described
herein in the event the Executive's employment with the Company is terminated
following a Change in Control and during the term of this Agreement. No amount
or benefit shall be payable under this Agreement unless there shall have been
(or, under the terms hereof, there shall be deemed to have been) a termination
of the Executive's employment with the Company following a Change in Control.
This Agreement shall not be construed as creating an express or implied contract
of employment prior to the date of a Change
in Control and, except as otherwise agreed in writing between the Executive and
the Company, the Executive shall not have any right to be retained in the employ
of the Company.
4.0 THE EXECUTIVE'S COVENANTS. The Executive agrees that, subject to the
terms and conditions of this Agreement, in the event of a Potential Change in
Control during the term of this Agreement, the Executive will remain in the
employ of the Company until the earliest of (A) a date which is six (6) months
from the date of such Potential Change in Control, (B) the date of a Change in
Control, (C) the date of termination by the Executive of the Executive's
employment for Good Reason (determined by treating the Potential Change in
Control as a Change in Control in applying the definition of Good Reason), or by
reason of the Executive's death or disability, or (D) the termination by the
Company of the Executive's employment for any reason.
5.0 COMPENSATION OTHER THAN SEVERANCE PAYMENTS.
5.1 Following a Change in Control during the term of this Agreement,
during any period that the Executive fails to perform the Executive's full-time
duties with the Company as a result of incapacity due to physical or mental
illness, the Company shall pay the Executive's full salary to the Executive at
the rate in effect at the commencement of any such period, together with all
compensation and benefits payable to the Executive under the terms of any
compensation or benefit plan, program or arrangement maintained by the Company
during such period, until the Executive's employment is terminated by the
Company for Disability.
5.2 If the Executive's employment shall be terminated for any reason
following a Change in Control during the term of this Agreement, the Company
shall pay the Executive's full salary to the Executive through the Date of
Termination under the terms of any compensation or benefit plan, program or
arrangement maintained by the Company prior to the Date of Termination.
5.3 If the Executive's employment shall be terminated for any reason
following a Change in Control during the term of this Agreement, the Company
shall pay the Executive's normal post- termination compensation and benefits to
the Executive as such payments become due. Such post- termination compensation
and benefits shall be determined under, and paid in accordance with, the
Company's retirement, insurance and other compensation or benefit plans,
programs and arrangements.
5.4 If there is any conflict between the express terms of this
Agreement and the express terms of any written Employment Agreement between the
Company and the Executive, the terms of such Employment Agreement shall control.
6.0 SEVERANCE PAYMENTS.
6.1 Subject to Section 6.2 hereof, the Company shall pay the Executive
the payments described in this Section 6.1 ("Severance Payments") upon the
termination of the Executive's employment following a Change in Control during
the term of this Agreement, in addition to the payments and benefits described
in Section 5.0 hereof, unless such termination is (A) by the Company for Cause,
or (B) by reason of the Executive's death or disability. The Executive's
employment shall be deemed to have been terminated following a Change in Control
by the Company without Cause if the Executive's employment is terminated prior
to a Change in Control without Cause at the direction (or action which
2
constitutes a direction) of a Person who has entered into an agreement with the
Company the consummation of which will constitute a Change in Control.
(i) Subsequent to the Date of Termination, the Company shall make cash
severance payments to the Executive over a thirty-six (36) month period
in substantially equal bi-weekly installments, in an amount equal to
two and ninety-nine one hundredths (2.99) times the sum of (a) the
higher of the Executive's annual base salary in effect immediately
prior to the occurrence of the event or circumstance upon which the
Notice of Termination is based or in effect immediately prior to the
Change in Control, and (b) the higher of the highest annual bonus paid
to the Executive in the three years preceding the year in which the
Date of Termination occurs or paid in the three years preceding the
year in which the Change in Control occurs.
(ii) For a thirty-six (36) month period after the Date of Termination,
the Company shall arrange to provide the Executive with medical and
dental insurance benefits substantially similar to those which the
Executive is receiving without cost to Executive immediately prior to
the Notice of Termination (without giving effect to any reduction in
such benefits subsequent to a Change in Control). Benefits otherwise
receivable by the Executive pursuant to this Section 6.1 (ii) shall be
reduced to the extent comparable benefits are actually received by or
made available to the Executive without cost, by another Person, during
the thirty-six (36) month period following the Executive's termination
of employment and any such benefits actually received by the Executive
shall be reported to the Company by the Executive. If the benefits
provided to the Executive under this Section 6.1(ii) result in a
decrease pursuant to Section 6.2 in the Change in Control Payments and
this Section 6.1(ii), benefits are thereafter reduced pursuant to the
immediately preceding sentence because of the receipt of comparable
benefits, the Company shall, at the time of such reduction, pay to the
Executive the lesser of, (a) the amount of the decrease made in the
Severance Payments pursuant to Section 6.2, or (b) the maximum amount
which can be paid to the Executive without being, or causing any other
payment to be, nondeductible by reason of Section 280G of the Code.
6.2 Notwithstanding any other provisions of this Agreement, in the
event that any payment or benefit received or to be received by the Executive in
connection with a Change in Control or the termination of the Executive's
employment (whether or not received pursuant to the terms of this Agreement)
(all such payments and benefits, including but not limited to the Severance
Payments, being hereinafter called the "Total Payments") would be subject in
whole or in part to the Excise Tax, then the Severance Payments shall be reduced
to the extent, but only to the extent, necessary so that no portion of the Total
Payments is subject to the Excise Tax; provided, that no such reduction shall be
effected unless the net amount of the total Payments after such reduction in the
Severance Payments and after deduction of the net amount of federal, state and
local income taxes on such reduced Total Payments would be greater than the
excess of (A) the net amount of the Total Payments without such reduction in the
Severance Payments but after deduction of the net amount of federal, state and
local income taxes (other than the Excise Tax) on such unreduced Total Payments,
over (B) the Excise Tax to which the total Payments are subject. The
determination as to whether a reduction in Severance Payments is to be made
under this Section 6.2 and, if so, the amount of any such reduction shall be
made by the Company's auditors or by such other firm of certified public
accountants, benefits consulting firm or legal counsel as the Board may
designate prior to the Change in Control.
3
The Company shall provide the executive with its calculations of the
amounts referred to in this Section 6.2 and such supporting materials as are
reasonably necessary for the Executive to evaluate the Company's calculations.
6.3 The Company also shall pay to the Executive all legal fees and
expenses incurred by the Executive as a result of a termination, which entitles
the Executive to the Severance Payments (including all such fees and expenses,
if any, incurred in disputing any such termination or in seeking in good faith
to obtain or enforce any benefit or right provided by this Agreement or in
connection with any tax audit or proceeding to the extent attributable to the
application of Section 4999 of the Code to any payment or benefit provided
hereunder). Such payments shall be made within five (5) business days after
delivery of the Executive's written requests for payment accompanied by such
evidence of fees and expenses incurred as the Company reasonable may require.
7.0 TERMINATION PROCEDURES AND COMPENSATION DURING DISPUTE.
7.1 NOTICE OF TERMINATION. After a Change in Control and during the
term of this Agreement, any purported termination of the Executive's employment
(other than by reason of death) shall be communicated by written Notice of
Termination from one party hereto to the other party hereto in accordance with
Section 10.0. For purposes of this Agreement, a "Notice of Termination" shall
mean a notice which shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated. Further, a Notice of Termination
for Cause is required to include a copy of a resolution duly adopted by the
affirmative vote of not less than three-quarters (3/4) of the entire membership
(excluding the Executive) of the Board at a meeting of the Board which was
called and held for the purpose of considering such termination (after
reasonable notice to the Executive and an opportunity for the Executive,
together with the Executive's counsel, to be heard before the Board) finding
that, in the good faith opinion of the Board the Executive was guilty of conduct
set forth in clause D (i) or (ii) of the definition of Cause in Section 15.0,
and specifying the particulars thereof in detail.
7.2 DATE OF TERMINATION. "Date of Termination", with respect to any
purported termination of the Executive's employment after a Change in Control
during the term of this Agreement, shall mean:
(A) if the Executive's employment is terminated for disability, thirty
(30) days after Notice of Termination is given (provided that the
Executive shall not have returned to the full-time performance of the
Executive's duties during such thirty (30) day period), and
(B) if the Executive's employment is terminated for any other reason,
the date specified in the Notice of Termination (which, in the case of
a termination by the Company, shall not be less than thirty (30) days
(except in the case of a termination for Cause) and, in the case of a
termination by the Executive, shall not be less than fifteen (15) days,
nor, in any case, more than sixty (60) days after the date such Notice
of Termination is given).
7.3 DISPUTE CONCERNING TERMINATION. If within fifteen (15) days after
any Notice of Termination is given, or, if later, prior to the Date of
Termination (as determined without
4
regard to this Section 7.3), the party receiving such Notice of Termination
notifies the other party that a dispute exists concerning the termination, the
Date of Termination shall be the date on which the dispute is finally resolved,
either by mutual written agreement of the parties, by arbitrator's award, or, to
the extent permitted by Section 14.0, by a final judgment, order or decree of a
court of competent jurisdiction on the arbitrator's award (which is not
appealable or with respect to which the time for appeal therefrom has expired
and no appeal has been perfected); provided further that the Date of Termination
shall be extended by a notice of dispute only if such notice is given in good
faith and the party giving such notice pursues the resolution of such dispute
with reasonable diligence.
7.4 COMPENSATION DURING DISPUTE. If a purported termination occurs
following a Change in Control and during the term of this Agreement and such
termination is disputed in accordance with Section 7.3 hereof, the Company shall
continue to pay the Executive the full compensation in effect when the notice
giving rise to the dispute was given (including, but not limited to, salary) and
continue the Executive as a participant in all compensation, benefit and
insurance plans in which the Executive was participating when the notice giving
rise to the dispute was given, until the dispute is finally resolved in
accordance with Section 7.3 hereof. Amounts paid under this Section 7.4 are in
addition to all other amounts due under this Agreement (other than those due
under Section 5.2) and shall not be offset against or reduce any other amounts
due under this Agreement.
8.0 NO MITIGATION. The Company agrees that, if the Executive's employment
by the Company is terminated during the term of this Agreement, the Executive is
not required to seek other employment or to attempt in any way to reduce any
amounts payable to the Executive by the Company pursuant to Section 6.0 or
Section 7.4. Further, the amount of any payment or benefit provided for in
Section 6.0 (other than Section 6.1(ii)) or Section 7.4 shall not be reduced by
any compensation earned by the Executive as the result of employment by another
employer, by retirement benefits, by offset against any amount claimed to be
owed by the Executive to the Company, or otherwise.
9.0 SUCCESSORS; BINDING AGREEMENT.
9.1 In addition to any obligations imposed by law upon any successor to
the Company, the Company will require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all of
the business and/or assets of the Company to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place.
Failure of the Company to obtain such assumption and agreement prior to the
effectiveness of any such succession shall be a breach of this Agreement and
shall entitle the Executive to compensation from the Company in the same amount
and on the same terms as the Executive would be entitled to hereunder if the
Executive were to terminate the Executive's employment for good Reason after a
Change in Control, except that, for purposes of implementing the foregoing, the
date on which any such succession becomes effective shall be deemed the Date of
Termination. In any event, this Agreement shall be binding upon the Company and
any successors or assignees.
9.2 This Agreement shall inure to the benefit of, and be enforceable
by, the Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If the
Executive shall die while any amount would still be payable to the Executive
hereunder (other than amounts which, by their terms, terminate upon the death of
the Executive), if the Executive
5
had continued to live, all such amounts, unless otherwise provided herein, shall
be paid in accordance with the terms of this Agreement to the executors,
personal representatives or administrators of the Executive's estate.
10.0 NOTICES. For the purpose of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given upon delivery by hand, receipt acknowledged
(including by Federal Express or similar service), or three business days after
mailing, if mailed by U.S. certified mail, return receipt requested, postage
prepaid, addressed to the respective addresses set forth below, or to such other
address as either party may have furnished to the other in writing in accordance
herewith, except that notice of change of address shall be effective only upon
actual receipt:
To the Company:
Educational Video Conferencing, Inc.
00 Xxxx Xxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Corporate Secretary
To the Executive:
Xx. Xxxx X. Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
11.0 MISCELLANEOUS. No provision of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed to in
writing and signed by the Executive and such officer as may be specifically
designated by the Board. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
either party which are not expressly set forth in this Agreement. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of New York and the Agreement shall be an instrument
under seal. All references to sections of the Exchange Act or the Code shall be
deemed also to refer to any successor provisions to such sections. Any payments
provided for hereunder shall be paid net of any applicable withholding required
under federal, state or local law and any additional withholding to which the
Executive has agreed. The obligations of the Company and the Executive under
Sections 6.0, 7.0, 8.0 and 14.0 shall survive the expiration of the term of this
Agreement.
12.0 VALIDITY. The invalidity or unenforceability or any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement. In addition, if any provision of this Agreement is held
invalid or unenforceable by a court of competent jurisdiction, then such
provision shall be deemed modified to the extent necessary to enable such
provision to be valid and enforceable.
6
13.0 COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original, but all of which together will
constitute one and the same instrument.
14.0 SETTLEMENT OF DISPUTES; ARBITRATION. All claims by the Executive for
benefits under this Agreement shall be directed to the Board and shall be in
writing. Any denial by the Board of a claim for benefits under this Agreement
shall be delivered to the Executive in writing and shall set forth the specific
reasons for the denial and the specific provisions of this Agreement relied
upon. The Board then shall afford a reasonable opportunity to the Executive for
a review of the decision denying a claim and shall further allow the Executive
to appeal to the Board a decision of the Board within sixty (60) days after
notification by the Board that the Executive's claim has been denied. Any
further dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration in White Plains, New York
in accordance with the rules of the American Arbitration Association then in
effect. Judgement may be entered on the arbitrator's award in any court having
jurisdiction; provided, however, that the Executive shall be entitled to seek
specific performance of the Executive's right to be paid until the Date of
Termination during the pendency of any dispute or controversy arising under or
in connection with this Agreement in such arbitration or by a proceeding in the
federal court in Westchester County, New York.
15.0 DEFINITIONS. For purposes of this Agreement, the following terms shall
have the meanings indicated below:
(A) "Board" shall mean the Board of Directors of the Company.
(B) "Beneficial Owner" shall have the meaning defined in Section
280G(b)(3) of the Code.
(C) "Cause" for termination by the Company of the Executive's
employment, after any Change in Control, shall mean:
(i) the willful and continued failure by the Executive to
substantially perform the Executive's duties with the Company (other
than any such failure resulting from the Executive's incapacity due to
physical or mental illness or any such actual or anticipated failure
after the issuance of a Notice of Termination for Good Reason by the
Executive pursuant to Section 7.1) for thirty (30) days after a written
demand for substantial performance is delivered to the Executive by the
Board, which demand specifically identifies the manner in which the
Board believes that the Executive has not substantially performed the
Executive's duties,
or
(ii) the willful engaging by the Executive in conduct which is
demonstrably and materially injurious to the Company or its
subsidiaries, monetarily or otherwise.
For purposes of clauses (i) and (ii) of this definition, no
act, or failure to act, on the Executive's part shall be deemed
"Willful" unless done, or omitted to be done, by the Executive not in
good faith and without reasonable belief that the Executive's act, or
failure to act, was in the best interest of the Company.
7
(D) A "Change in Control", shall be deemed to have occurred if the
conditions set forth in any one of the following paragraphs shall have
been satisfied:
(i) any Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company representing twenty-five (25)
percent or more of the combined voting power of the Company's then
outstanding securities;
or
(ii) during any period of not more than three consecutive years
(not including any period prior to the execution of this Agreement),
individuals who at the beginning of such period constitute the Board
and any new director (other than a director designated by a Person who
has entered into an agreement with the Company to effect a transaction
described in clause (i), (ii) or (iii) of this Section 15(E)), whose
election by the Board or nomination for election by the Company's
stockholders was approved by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors at the
beginning of the period or whose election or nomination for election
was previously so approved, cease for any reason to constitute a
majority thereof;
or
(iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than (a)
a merger or consolidation which would result in the voting securities
of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into
voting securities of the surviving entity) fifty (50) percent or more
of the combined voting power of the voting securities of the Company or
such surviving entity outstanding immediately after such merger or
consolidation, or (b) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which no
Person acquires twenty-five (25) percent or more of the combined voting
power of the Company's then outstanding securities;
or
(iv) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition
by the Company of all or substantially all the Company's assets.
(E) "Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time.
(F) "Company" shall mean Educational Video Conferencing, Inc. and any
successor to its business and/or assets which assumes and agrees to
perform this Agreement by operation of law, or otherwise (except in
determining, under Section 15 (E) hereof whether or not any Change in
Control of the Company has occurred in connection with such
succession).
(G) "Date of Termination" shall have the meaning stated in Section
7.2.
8
(H) "Disability" shall be deemed the reason for the termination by the
Company of the Executive's employment, if, as a result of the
Executive's physical or mental incapacity, the Executive shall have
been unable to perform substantially all of the Executive's duties to
the Company (as such duties existed immediately prior to the onset of
such physical or mental incapacity), for forty-five (45) consecutive
days or ninety (90) days during any twelve-month period, the Company
shall have given the Executive a Notice of Termination for Disability
and, within thirty (30) days after such Notice of Termination is given,
the Executive shall not have returned to the full-time performance of
the Executive's duties.
(I) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
(J) "Excise Tax" shall mean any excise tax imposed under Section 4999
of the Code.
(K) "Executive" shall mean the individual named in the first paragraph
of this Agreement.
(L) "Good Reason" for termination by the Executive of the Executive's
employment shall mean:
(i) during the period commencing thirty (30) days after the Change
in Control and terminating six (6) months after the Change in Control,
a good faith determination by the Executive that, as a result of the
Change in Control, the Executive is unable to discharge his duties
effectively, or
(ii) the occurrence (without the Executive's express written
consent) of any one of the following acts by the Company, or failures
by the Company to act, unless, in the case of any act or failure to act
described in paragraph (a), (e), (f), or (g), below, such act or
failure to act is corrected prior to the Date of Termination given in
respect thereof:
(a) the assignment to the Executive of any duties
inconsistent with the Executive's status as the senior executive
officer of the Company or a substantial adverse alteration in the
nature or status of the Executive's responsibilities from those in
effect immediately prior to the Change in Control;
(b) a reduction by the Company in the Executive's annual base
salary as in effect on the date hereof or as the same may be
increased from time to time;
(c) the relocation of the Company's principal executive
officers to a location more that ten (10) miles from the location
of such officers immediately prior to the Change in Control or the
Company's requiring the Executive to be based anywhere other than
the Company's principal executive offices, except for required
travel on the Company's business to an extent substantially
consistent with the Executive's present business travel
obligations;
(d) the failure, not corrected within ten (10) days after
written notice thereof to the Company, by the Company, without the
Executive's consent, to pay to the
9
Executive any portion of the Executive's current compensation, or
to pay to the Executive any portion of an installment of deferred
compensation under any deferred compensation program of the
Company, within ten (10) days of the date such compensation is
due;
(e) the failure, not corrected within ten (10) days after
written notice thereof to the Company, by the Company to continue
in effect any compensation plan in which the Executive
participates immediately prior to the Change in Control which is
material to the Executive's total compensation, unless an
equitable arrangement (embodied in an ongoing substitute or
alternative plan) has been made with respect to such plan, or the
failure by the Company to continue the Executive's participation
therein (or in such substitute or alternative plan) on a basis not
materially less favorable, both in terms of the amount of benefits
provided and the level of the Executive's participation relative
to other participants, as existed at the time of the Change in
Control;
(f) the failure, not corrected within ten (10) days after
written notice thereof to the Company, by the Company to continue
to provide the Executive with benefits substantially similar to
those enjoyed by the Executive under any of the Company's pension,
life insurance, medical, health and accident, or disability plans
in which the Executive was participating at the time of the Change
in Control (other than changes required by law), the taking of any
action by the Company which would directly or indirectly
materially reduce any of such benefits or deprive the Executive of
any material fringe benefit enjoyed by the Executive at the time
of the Change in Control, or the failure by the Company to provide
the Executive with the number of paid vacation days to which the
Executive is entitled on the basis of years of service with the
Company in accordance with the Company's normal vacation policy in
effect at the time of the Change in Control; or
(g) any purported termination of the Executive's employment
which is not effected pursuant to a Notice of Termination
satisfying the requirements of Section 7.1; for purposes of this
Agreement, no such purported termination shall be effective.
The Executive's right to terminate the Executive's employment
for Good Reason shall not be affected by the Executive's
incapacity due to physical or mental illness. The Executive's
continued employment shall not constitute consent to, or a waiver
of rights with respect to, any act or failure to act constituting
Good Reason hereunder.
"Notice of Termination" shall have the meaning stated in Section
7.1 hereof.
(M) "Person" shall have the meaning given in Section 3 (a) (9) of the
Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof;
however, a person shall not include:
(i) the Company, a trustee or other fiduciary holding securities
under an employee benefit plan of the Company,
or
10
(ii) a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as
their ownership of stock of the Company.
(N) "Potential Change in Control", shall be deemed to have occurred if
the conditions set forth in any one of the following paragraphs shall
have been satisfied:
(i) the Company enters into an agreement, the consummation of
which would result in occurrence of a Change in Control;
(ii) the Company or any person publicly announces an intention to
take or to consider taking actions which, if consummated, would
constitute a Change in Control;
(iii) the Board adopts a resolution to the effect that, for
purposes of this Agreement, a Potential Change in Control has occurred.
(O) "Severance Payments" shall mean those payments described in
Section 6.1 hereof.
(P) "Total Payments" shall mean those payments described in Section
6.2 hereof.
EDUCATIONAL VIDEO CONFERENCING, INC.
/s/ Xx. Xxxx X. XxXxxxx /s/ Xx. Xxxx X. Xxxxxxxx
------------------------------------- --------------------------
Xx. Xxxx X. XxXxxxx Xx. Xxxx X. Xxxxxxxx
President
/s/ Xxxxxxx Xxxxxxxxxx
-------------------------------------
Xxxxxxx Xxxxxxxxxx, Secretary
Witnessed:
11
