EXHIBIT 10.11
EMPLOYMENT AGREEMENT
AGREEMENT made this 2ND day of January, 2000, by and between ITXC
Corp., a corporation formed under the laws of the State of Delaware (the
"Company"), and Xxxxxx Xxxxxxxxx (the "Executive").
W I T N E S S E T H:
WHEREAS, the Company wishes to employ the Executive and the Executive
wishes to accept such employment, and each desires to enter into an agreement to
provide for the terms and conditions of such employment set forth herein;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, receipt of which is hereby acknowledged, the parties
hereto agree as follows:
1. Employment
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The Company agrees to employ the Executive during the Term specified in
section 2, and the Executive agrees to accept such employment, upon the terms
and conditions hereinafter set forth.
2. Term
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(a) Subject to Section 6 below and the other terms and conditions of
this Agreement, the Executive's employment by the Company shall be for a term
(the "Term") commencing on January 5, 2000 (the "Effective Date") and expiring
on the date (hereafter referred to as the "Expiration Date") which is (a) the
one year anniversary date of the Effective Date or (b) any later date to which
the Term may be extended by written agreement of the parties. Notwithstanding
anything contained herein to the contrary, in the event that the Executive's
employment with the Company continues after the Expiration Date, the Executive's
employment shall be deemed to be "at will". The effective date of the
termination of the Executive's employment with the Company, regardless of the
reason therefor, is referred to in this Agreement as the "Date of Termination".
(b) Upon termination of the employment of the Executive with the
Company on or after the Expiration Date, the Company shall pay the Executive,
subject to appropriate offsets, as permitted by applicable law, for debts or
money due to the Company (collectively, "Offsets"), any earned but unpaid salary
and bonus compensation, and any unused Personal Time Off ("PTO") days accrued
under Company policy, only through or as of, and any unpaid reimbursement
expenses outstanding as of, the Date of Termination. Any benefits to
which the Executive or his beneficiaries may be entitled to under the plans and
programs described in section 5(b) below, or any other applicable plans and
programs, as of the Date of Termination shall be determined in accordance with
the terms of such plans and programs. In addition, unless the Executive's
employment terminates on or after the Expiration Date other than as a result of
the Executive's death, disability or by the Company for Cause (as defined in
section 6(a), the Company shall continue to pay the Executive his rate of base
salary compensation then in effect for a period of six months. Except as
provided in this section 2(b), in connection with the Executive's termination of
employment pursuant to section 2(a), the Company shall have no further liability
to the Executive or the Executive's heirs, beneficiaries or estate for damages,
compensation, benefits, severance, indemnities or other amount of whatever
nature.
3. Duties and Responsibilities
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(a) During the Term, the Executive shall have the position of Executive
Vice President or such other title as may be agreed between the Executive and
the Company. The Executive shall perform such duties and responsibilities as may
be assigned to him from time to time consistent with his position, and in the
absence of such assignment, such duties as are customary and commensurate with
such position. The Executive further agrees, if elected or appointed, to accept
appointment or election, and to serve during all or any part of the Term, as a
director of the Company and as an officer or director of any subsidiary of the
Company, without any additional compensation therefor.
(b) The Executive's employment by the Company shall be full-time and
exclusive, and during the Term, the Executive agrees that he will (i) devote
substantially all of his business time and attention, his best efforts, and all
his skill and ability to promote the interests of the Company and its
affiliates; (ii) carry out his duties in a competent and professional manner;
(iii) work with other employees of the Company and its affiliates in a competent
and professional manner; and (iv) generally promote the interests of the Company
and its affiliates. Notwithstanding the foregoing, the Executive shall be
permitted to engage in civic or charitable activities and manage his personal
investments, provided that such activities (individually or collectively) do not
materially interfere with the performance of his duties or responsibilities
under this Agreement.
4. Compensation
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(a) As compensation for his services hereunder, the Company shall pay
the Executive, in accordance with its normal payroll practices, base salary
compensation at an annual rate not less than $180,000.
(b) Executive shall participate in the Company's Cash Incentive Plan,
subject to the terms and conditions of such Plan as in effect from time to time.
For purposes of the Cash Incentive Plan, Executive's target bonus for the year
ending December 31, 2000 shall be 37.5% of base salary for such year.
Executive's target bonus for each year of the Term, if any, beginning after
December 31, 2000 shall be 75.0% of base salary for such year
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or such other percentage as is established by the Board of Directors of the
Company (the "Board") for Executive Vice Presidents of the Company generally.
For purposes of determining Executive's bonus under the Company's Cash Incentive
Plan, the standard procedures of the Company's Cash Incentive Plan as in effect
at the relevant time shall be used.
(c) As of the first day of the Term, the Executive shall be granted
non-qualified options ("Options") under the ITXC Corp. Stock Incentive Plan (the
"Stock Incentive Plan") to purchase 300,000 shares of ITXC Corp. common stock.
The exercise price of such Options shall be the fair market value of ITXC Corp.
common stock on the Effective Date (the "Grant Date") as determined in
accordance with the terms of the Stock Incentive Plan.
The Options shall vest and become exercisable as follows:
(A) 250,000 of such Options shall vest and become exercisable as
follows:
(i) 83,333 of such Options shall vest and become exercisable
on the one-year anniversary of the Grant Date;
(ii) 83,333 of such Options shall vest and become exercisable
on the second anniversary of the Grant Date;and
(iii) the balance of such 250,000 Options shall vest and
become exercisable on the third anniversary of the Grant Date.
(B) The remaining 50,000 Options shall vest and become exercisable on
the third anniversary of the Grant Date; provided, however, that a
number of such Options equal to the quotient determined by multiplying
50,000 by the Bonus Fraction (as hereinafter defined) shall vest and
become exercisable on the one-year anniversary of the Grant Date. For
this purpose, the Bonus Fraction is the lesser of one (1) or a
fraction, the numerator of which is the cash bonus earned by Executive
under section 4(b) above for the year ending December 31, 2000 and the
denominator of which is $67,500.00.
Notwithstanding the foregoing, except as provided by section 6(d) or
the Stock Incentive Plan, upon the Executive's termination of employment with
the Company, all Options which are not vested shall be forfeited.
Except as set forth herein, the Options shall be subject in all
respects to the terms and conditions of the plan governing the Options.
(d) All compensation paid to the Executive shall be subject to
applicable tax withholding requirements.
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5. Expenses; Fringe Benefits
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(a) The Company agrees to pay or to reimburse the Executive during the
Term for all reasonable, ordinary and necessary vouchered business or
entertainment expenses incurred in the performance of his services hereunder in
accordance with the policy of the Company as from time to time in effect.
(b) During the Term, the Executive and, to the extent eligible, his
dependents, shall be entitled to participate in and receive all benefits under
any employee benefit plans and programs provided by the Company (including
without limitation, 401(k), medical, dental, disability, group life (including
accidental death and dismemberment) and business travel insurance plans and
programs) applicable generally to the employees of the Company, subject,
however, to the terms and conditions of the various plans and programs in effect
from time to time.
(c) Notwithstanding anything contained herein to the contrary, the
Company reserves the right to modify, amend or terminate any employee benefit
plan or policy as it deems appropriate in its discretion; provided that unless
required by law, the Company shall not amend, modify or terminate any such plan
or policy in a manner that treats the Executive differently from other similarly
situated employees.
6. Termination
(a) The Company, by direction of its Board and/or Chief Executive
Officer, shall be entitled to terminate the Term prior to the Expiration Date
and to discharge the Executive for "Cause" effective upon the giving of written
notice. The term "Cause" shall be limited to the following grounds:
(i) The willful and continued failure by the Executive to
substantially perform any of his material duties hereunder or to follow
the reasonable and lawful orders of the Board or the Chief Executive
Officer of the Company;
(ii) The Executive's misappropriation of material assets of
the Company;
(iii) Use of alcohol or illegal drugs, materially interfering
with the performance of the Executive's obligations under this
Agreement;
(iv) Indictment, arraignment or conviction of a felony or of
any crime involving moral turpitude, dishonesty or theft;
(v) The commission by the Executive of any willful or
intentional act, or the Executive's willful or intentional failure to
act, which could reasonably be expected to injure the reputation,
business or business
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relationships of the Company; provided, however, that no act or failure
to act on the part of the Executive shall be deemed to be willful or
intentional if it was due primarily to an error of judgment or
negligence, but shall be deemed willful or intentional if done, or
omitted to be done, by the Executive not in good faith and without
reasonable belief that his action or omission was in or not opposed to
the best interests of the Company. Failure to meet performance
standards or objectives of the Company by itself shall not constitute
Cause for purposes of this Agreement.
(vi) Any material breach (not covered by any of the clauses
(i) through (v)) of any term, provision or condition of this Agreement
or of any Company policy.
(b) The Executive shall be entitled to terminate this Agreement and the
Term hereunder prior to the Expiration Date in the event that the Company is in
default of a material term of this Agreement, which default remains uncured for
a period of 30 days after written notice of such default from the Executive to
the Company, such notice to specify the specific nature of the claimed default
and the manner in which the Executive requires such default to be cured.
Notwithstanding any such termination, or in the event the Company terminates the
employment of the Executive prior to the Expiration Date in breach of its
obligations under this Agreement (hereinafter referred to as a "Termination
Without Cause"), the restrictions set forth in section 8 shall remain in full
force and effect.
(c) Upon the termination of the employment of the Executive with the
Company pursuant to section 6(a) or by virtue of a resignation other than
pursuant to a termination under section 6(b) above, the Company shall pay the
Executive, subject to any Offsets, (i) any earned but unpaid salary
compensation, (ii) any earned but unpaid cash bonus, (iii) any unused accrued
PTO days, and (iv) any unpaid reimbursable expenses (except as provided under
Section 5(d), in each case, as of the Date of Termination. Any benefits to which
the Executive or his beneficiaries may be entitled to under the plans and
programs described in section 5(b) above, or any other applicable plans and
programs, as of his Date of Termination shall be determined in accordance with
the terms of such plans and programs. Except as provided in this section 6(c),
the Company shall have no further liability to the Executive or the Executive's
heirs, beneficiaries or estate for damages, compensation, benefits, severance,
indemnities or other amount of whatever nature.
(d) In the event of the termination of the Executive's employment by
the Executive pursuant to section 6(b) above or in the event of a Termination
Without Cause by the Company (each such event being called a "Wrongful
Termination"), as liquidated damages, the Executive shall be entitled to
continue to receive from the Company, subject to any Offsets and for so long as
the Executive is not in breach of his obligations to the Company under sections
8 and 9 hereof, (i) his then applicable salary compensation when otherwise
payable through the remainder of the then current Term hereof reduced by any
income earned by the Executive as a result of gainful activity during the
remainder of such Term whether as an employee, principal, partner, agent,
consultant, co-venturer or in any other capacity
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(hereinafter referred to as "Other Employment"), (ii) any earned but unpaid
bonus as of the Date of Termination, and (iii) any unpaid reimbursable expenses
outstanding, and any unused accrued PTO days, as of the Date of Termination. Any
benefits to which Executive or his beneficiaries may be entitled to under the
plans and programs described in section 5(b) above, or any other applicable
plans and programs, as of his Date of Termination shall be determined in
accordance with the terms of such plans and programs. In addition, the Executive
shall continue to vest in the Options in accordance with the terms set forth in
section 4(c) for the remainder of the Term. Except as provided in this section
6(d) in connection with a Wrongful Termination, (x) the Company shall have no
further liability to the Executive or the Executive's heirs, beneficiaries or
estate for damages, compensation, benefits, severance, indemnities or other
amount of whatever nature and (y) the Executive shall be under no obligation to
mitigate his damages or to seek Other Employment; provided that, as indicated in
this section 6(d), any income the Executive earns from Other Employment shall
reduce payments by the Company under section 6(d)(i). From time to time, upon
the Company's reasonable request, the Executive shall provide the Company
written verification of amounts earned from Other Employment. In the event the
Executive fails to supply such information, the obligations of the Company to
the Executive under this section 6(d) shall terminate. It is agreed that a
termination of the Executive's employment on or after the Expiration Date shall
not be deemed a Wrongful Termination.
7. Disability; Death
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(a) In the event the Executive shall be unable to perform his duties
hereunder by virtue of illness or physical or mental incapacity or disability
(from any cause or causes whatsoever) in substantially the manner and to the
extent required hereunder prior to the commencement of such disability (all such
causes being herein referred to as "disability"), the Company shall have the
right to terminate the Executive's employment hereunder as at the end of any
calendar month during the continuance of such disability upon at least 30 days'
prior written notice to him. In the event of the Executive's death, the Date of
Termination shall be the date of such death.
(b) In the event the Executive's employment terminates pursuant to
section 7(a), the Executive, or in the case of his death, the Executive's
estate, shall be entitled to receive, subject to any Offsets, (i) all salary and
bonus compensation earned but unpaid as of the Date of Termination and (ii) any
unpaid reimbursable expenses outstanding, and any unused accrued PTO days, as of
such date. Any benefits to which the Executive or his beneficiaries may be
entitled under the plans and programs described in sections 5(b) above, or any
other applicable plans and programs, as of his Date of Termination shall be
determined in accordance with the terms of such plans and programs. Except as
provided in this section 7(b), in the event of the Executive's termination due
to disability or death, the Company shall have no further liability to the
Executive or the Executive's heirs, beneficiaries or estate for damages,
compensation, benefits, severance, indemnities or other amounts of whatever
nature.
8. Confidential Information In consideration of the covenants of the
------------------------
Company herein, the Executive agrees as follows:
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(a) The Executive hereby agrees and acknowledges that he has
and has had access to or is aware of Confidential Information. The Executive
hereby agrees that he shall keep strictly confidential and will not prior to or
after his Date of Termination, without the Company's express written consent,
divulge, furnish or make accessible to any person or entity, or make use of for
the benefit of himself or others, any Confidential Information obtained,
possessed, or known by him except as required in the regular course of
performing the duties and responsibilities of his employment by the Company
while in the employ of the Company, and that he will, prior to or upon his Date
of Termination deliver or return to the Company all such Confidential
Information that is in written or other physical or recorded form or which has
been reduced to written or other physical or recorded form, and all copies
thereof, in his possession, custody or control. The foregoing covenant shall not
apply to (i) any Confidential Information that becomes generally known or
available to the public other than as a result of a breach of the agreements of
the Executive contained herein, (ii) any disclosure of Confidential Information
by the Executive that is expressly required by judicial or administrative order;
provided however that the Executive shall have (x) notified the Company as
promptly as possible of the existence, terms and circumstances of any notice,
subpoena or other process or order issued by a court or administrative authority
that may require him to disclose any Confidential Information, and (y)
cooperated with the Company, at the Company's request, in taking legally
available steps to resist or narrow such process or order and to obtain an order
or other reliable assurance that confidential treatment will be given to such
Confidential Information as is required to be disclosed.
(b) For purposes of this Agreement, "Confidential Information" means
any information including without limitation plans, specifications, drawings,
sketches, models, samples, data, computer programs, documentation, reports,
accountings, and other technical and/or business information, that can be
communicated by any means whatsoever, including without limitation oral, visual,
written and electronic transmission, that relates to the Company's current or
future business, products, services or development including, without
limitation:
(i) products and services, including without limitation
existing hardware and software products and hardware and software in
various stages of research and development;
(ii) business policies, practices, and customer and supplier
lists and information pertaining to customers and suppliers; and
(iii) information received from others that the Company is
obligated to treat as confidential or proprietary.
Confidential Information shall include any materials that relate to,
pertain to, record or embody any of the foregoing.
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"Confidential Information" shall not include information which would
otherwise fit the definition of Confidential Information above if Executive can
conclusively establish to the Company that such information has:
(i) entered or was in the public domain other than due to the
breach by Executive or another, by act or omission, of any obligation
owed to the Company;
(ii) become demonstrably known to Executive prior to the
Company's disclosure of such information to Executive;
(iii) become demonstrably known by or available to Executive
from a source other than the Company subsequent to the disclosure by
the Company of such information to Executive, without any breach - by
act or omission - of any obligation of confidentiality owed to the
Company, as evidenced by written documents received by Executive.
9. Post-Employment Obligations In consideration of the covenants of the
---------------------------
Company herein, the Executive agrees as follows:
(a) The Executive agrees that his services hereunder are of a special,
unique, extraordinary and intellectual character, and his position with the
Company places him in a position of confidence and trust with employees,
suppliers of the Company. The Executive further agrees and acknowledges that in
the course of the Executive's employment with the Company, the Executive has
been and will be privy to Confidential Information. The Executive consequently
agrees that it is reasonable and necessary for the protection of the trade
secrets, goodwill and business of the Company that the Executive make the
covenants contained herein. Accordingly, the Executive agrees that while he is
in the employ of the Company and for a period of six months after the Date of
Termination (regardless of the reason for his ceasing to be employed by the
Company), he shall not, without the prior written consent of the Company,
directly or indirectly, anywhere within the United Sates or Canada:
(i) become Associated With any Competing Business; or
(ii) solicit, sell, call upon or induce others to solicit,
sell or call upon, directly or indirectly, any customer or prospective
customer of the Company for the purpose of inducing any such customer
or prospective customer to purchase, license or lease a product or
service of a Competing Business; or
(iii) employ, solicit for employment, or advise or
recommend to any other person that they employ or solicit for
employment or retention as a consultant, any person who is, or
was at any time within twelve (12) months
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prior to the Date of Termination, an employee of, or exclusive
consultant to, the Company.
(b) For purposes of this section 9, the following terms shall have the
following meanings:
"Competing Business" means that portion or segment of the business
of any person, corporation (for profit or not for profit) or other entity which
indirectly or directly provides wholesale internet telephony services, including
without limitation, (i) linking internet telephone service providers ("ITSPs")
to each other; (ii) providing billing and settlement services to internet
telephony customers; and/or (iii) connecting participating ITSPs to telephone
numbers using a combination of internet providers and traditional telephony for
wholesale or retail customers.
"Associated With" means serving as an owner, officer, employee,
independent contractor, agent or a holder of 5% or more of any class of equity
securities of, director, trustee, member, consultant or partner of any person,
corporation (for profit or not for profit) or other entity engaged in a
Competing Business.
(c) If the Executive commits a breach or is about to commit a breach,
of any of the provisions of sections 8 or 9 hereof, the Company shall have the
right to have the provisions of this Agreement specifically enforced by any
court having equity jurisdiction without being required to post bond or other
security and without having to prove the inadequacy of the available remedies at
law, it being acknowledged and agreed that any such breach or threatened breach
will cause irreparable injury to the Company and that money damages will not
provide an adequate remedy to the Company. In addition, the Company may take all
such other actions and remedies available to them under law or in equity and
shall be entitled to such damages as they can show they have sustained by reason
of such breach.
(d) The parties acknowledge that the type and periods of restriction
imposed in the provisions of sections 8 and 9 hereof are fair and reasonable and
are reasonably required for the protection of the Company and the goodwill
associated with the business of the Company; and that the time, scope,
geographic area and other provisions of sections 8 and 9 have been specifically
negotiated by sophisticated parties and are given as an integral part of this
Agreement. The Executive specifically acknowledges that the restrictions
contemplated by this Agreement will not prevent him from being employed or
earning a livelihood. If any of the covenants in sections 8 or 9 hereof, or any
part thereof, is hereafter construed to be invalid or unenforceable, the same
shall not affect the remainder of the covenants or covenants, which shall be
given full effect, without regard to the invalid portions. If any of the
covenants contained in sections 8 or 9 hereof, or any part thereof, is held to
be unenforceable because of the duration of such provision or the area covered
thereby, the parties agree that the court making such determination shall have
the power to reduce the duration and/or areas of such provision and, in its
reduced form, such provision shall then be enforceable. The parties hereto
intend to and hereby confer jurisdiction to enforce the covenants contained in
sections 8 or 9 hereof above upon the courts of any state or other jurisdiction
within the geographical
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scope of such covenants. In the event that the courts of any one or more of such
states or other jurisdictions shall hold such covenants wholly unenforceable by
reason of the breadth of such scope or otherwise, it is the intention of the
parties hereto that such determination not bar or in any way affect the right of
the Company to the relief provided above in the courts of any other states or
other jurisdictions within the geographical scope of such covenants, as to
breaches of such covenants in such other respective states or other
jurisdictions, the above covenants as they relate to each state or other
jurisdiction being, for this purpose, severable into diverse and independent
covenants.
10. Intellectual Property
---------------------
The Executive will disclose to the Company all ideas, inventions and
business plans developed by him during the period of his employment with the
Company which relate directly or indirectly to the business of the Company,
including without limitation, any design, logo, slogan or campaign or any
process, operation, product or improvement which may be patentable or
copyrightable. The Executive agrees that all patents, licenses, copyrights,
tradenames, trademarks, service marks, advertising campaigns, promotional
campaigns, designs, logos, slogans and business plans developed or created by
the Executive in the course of his employment hereunder, either individually or
in collaboration with others, will be deemed works for hire and the sole and
absolute property of the Company. The Executive agrees, that at the Company's
request, he will take all steps necessary to secure the rights thereto to the
Company by patent, copyright or otherwise.
11. Enforceability
--------------
The failure of any party at any time to require performance by another
party of any provision hereunder shall in no way affect the right of that party
thereafter to enforce the same, nor shall it affect any other party's right to
enforce the same, or to enforce any of the other provisions in this Agreement;
nor shall the waiver by any party of the breach of any provision hereof be taken
or held to be a waiver of any subsequent breach of such provision or as a waiver
of the provision itself.
12. Assignment
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This Agreement is a personal contract and the Executive's rights and
obligations hereunder may not be sold, transferred, assigned, pledged or
hypothecated by the Executive. The rights and obligation of the Company
hereunder shall be binding upon and run in favor of the successors and assigns
of the Company; provided, however, the Company may not assign or transfer its
rights or obligations under this Agreement unless such assignee or transferee
assumes the liabilities, obligations and duties of the Company, as contained in
this Agreement, either contractually or as a matter of law.
13. Modification
------------
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This Agreement may not be orally canceled, changed, modified or
amended, and no cancellation, change, modification or amendment shall be
effective or binding, unless in writing and signed by the parties to this
Agreement.
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14. Severability; Survival
----------------------
In the event any provision or portion of this Agreement is determined
to be invalid or unenforceable for any reason, in whole or in part, the
remaining provisions of this Agreement shall nevertheless be binding upon the
parties with the same effect as though the invalid or unenforceable part had
been severed and deleted. The respective rights and obligations of the parties
hereunder shall survive the termination of the Executive's employment to the
extent necessary to the intended preservation of such rights and obligations.
15. Notice
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Any notice, request, instruction or other document to be given
hereunder by any party hereto to another party shall be in writing and shall be
deemed effective (a) upon person delivery, if delivered by hand, or (b) three
days after the date of deposit in the mails, postage prepaid if mailed by
certified or registered mail, or (c) on the next business day, if sent by
facsimile transmission or prepaid overnight courier service, and in each case,
addressed as follows:
If to the Executive:
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Xxxxxx Xxxxxxxxx
000 Xxxxxxx Xxx.
Xxxxxxxxxxx, Xxx Xxxxxx 00000
If to the Company:
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ITXC Corp.
000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Chief Executive Officer
Any party may change the address to which notices are to be sent by giving
notice of such change of address to the other party in the manner herein
provided for giving notice.
16. Applicable Law
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This Agreement shall be governed by and construed in accordance with
the laws of the State of New Jersey, without application of conflict or law
provisions applicable herein.
17. Subsidiaries and Affiliates
---------------------------
As used herein, the term "subsidiary" shall mean any corporation or
other business entity controlled directly or indirectly by the corporation or
other business entity in question, and the term "affiliate" shall mean and
include any corporation or other business
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entity directly or indirectly controlling, controlled by or under common control
with the corporation or other business entity in question.
18. No Conflict
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The Executive represents and warrants that he is not subject to any
agreement, instrument, order, judgment or decree of any kind, or any other
restrictive agreement of any character, which would prevent him from entering
into this Agreement or which would be breached by the Executive upon his
performance of his duties pursuant to this Agreement.
19. Entire Agreement
This Agreement represents the entire agreement between the Company and
the Executive with respect to the subject matter hereof, and all prior
agreements, plans and arrangements relating to the employment of the Executive
the Company are nullified and superseded hereby.
20. Headings
The headings contained in this Agreement are for reference purposes
only, and shall not affect the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
ITXC CORP.
By: /s/ Xxx Xxxxxx
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Name: Xxx Xxxxxx
Title: Chairman, CEO
Executive's Signature
/s/Xxxxxx X. Xxxxxxxxx
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Xxxxxx Xxxxxxxxx
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