Exhibit 10.9
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT is made as of the 15TH day of JANUARY,
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2000, by and between US WATS, INC., a New York corporation, with offices at 331
Street Road, 0 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxxxx 00000 (the
"Company"), and Xxxxxxx XxXxxxxx, residing at 313 Rolling Brook Way, Xxxxxx, New
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Jersey 08080 (the "Executive").
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W I T N E S S E T H:
WHEREAS, the Company desires to continue to employ the Executive, and the
Executive is willing to continue to be employed by the Company, upon the terms
and subject to the conditions hereinafter set forth:
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the parties hereto agree as follows:
1. EMPLOYMENT. The Company agrees to continue to employ the Executive,
and the Executive agrees to continue in employment with the Company, subject to
the terms and conditions herein set forth.
2. TERM. The term of the Executive's employment under this Agreement
shall commence on January 15, 2000 (the "Effective Date") and shall terminate on
the first (1st) anniversary of the Effective Date, subject to the provisions of
this Agreement (such period is hereinafter referred to as the "Term").
3. DUTIES.
3.1 During the Term, the Executive shall be employed as CHIEF
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FINANCIAL OFFICER, AND/OR CONTROLLER of the Company and any successors thereto
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or to its business, and shall be in charge of and responsible for the general
and supervisory duties normally and customarily attendant to such office and
shall render such other lawful services, and exercise such powers, which are
from time to time requested of him, assigned to him or vested in him by the
President & CEO of the Company (the "Board") and which are commensurate with
such position.
3.2 The Executive agrees that, during the Term, unless the President &
CEO shall otherwise consent, he will devote such amount of his time, energies,
labor and skills to the business of the Company and to the duties and
responsibilities specified in Section 3.1 as shall be reasonably necessary.
4. BASE COMPENSATION. In consideration for services to be performed
hereunder by Executive, the Company shall pay to the Executive an annual base
salary of $86,670.00 in installments payable in accordance with the Company's
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customary payroll practices, but in no event less than one time per month. On
each anniversary of the Effective Date of this Agreement, the Executive's base
salary shall be increased at a minimum by an amount equal to the base salary
then in effect multiplied by the greater of (i) the percentage increase in the
consumer price index from the preceding year, or (ii) five percent. In addition,
the Company shall reimburse the Executive for all expenses reasonably incurred
by him in the performance of his duties hereunder and the business of the
Company upon the submission to the Company of appropriate receipts therefor.
5. BENEFITS AND CASH BONUS.
5.1 During the Term, the Executive shall be eligible to participate in
any pension, profit-sharing, stock option or similar plan or program of the
Company now existing or established hereafter for the benefit of its employees
generally, to the extent that he is eligible under the general provisions
thereof. The Executive shall also be entitled to participate in any group
insurance, hospitalization, medical, health and accident, disability or other
plan or program of the Company now existing or established hereafter for the
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benefit of its employees or executives generally, to the extent that he is
eligible under the general provisions thereof.
5.2 During the Term, the Executive may be entitled to receive an
annual bonus, payable within sixty (60) days following the end of each calendar
year during the Term, based on the achievement by the Company or the Executive
of such targets as the President & CEO and/or Board may, or may not, prescribe.
5.3 The Company shall provide the Executive with a policy of term life
insurance in an amount equal to not less than (2) times his yearly salary
hereunder, payable to such beneficiary or such beneficiaries as shall be
designated in writing by the Executive.
6. TERMINATION OF EXECUTIVE'S EMPLOYMENT.
6.1 Notwithstanding any provisions contained herein to the contrary,
the Executive's employment may be terminated by the Company upon the Executive's
death or disability (as defined below); or for Cause (as defined below); or upon
a Change in Control (as defined below).
6.2 For purposes of this Agreement, "disability" shall mean the
Executive is mentally or physically disabled from properly and fully performing
his duties and responsibilities hereunder for a period of 120 consecutive days
or for 180 days, even though not consecutive, within a 360- day period, all as
evidenced by the written certification of a qualified medical doctor agreed to
by the Company and the Executive or, in the absence of such agreement, by a
doctor selected by the agreement of a qualified medical doctor selected by each
of the Company and the Executive.
6.3 For purposes of this Agreement, "Cause" shall mean: (i) the
conviction of the Executive of a felony by a federal or state court of competent
jurisdiction; (ii) gross misconduct relating to the Company; (iii) intentional
misappropriation of funds; (iv) deliberate and premeditated acts against the
interest of the Company; (v.) dishonesty on the part of the Executive as
determined in the good faith judgement of the Company; (vi.) Fraud,
misappropriation or embezzlement by Executive in connection with the Company's
business, as determined in the good faith judgement of the Company; or (vii.)
Gross deficiency in the performance of Executives duties, as determined in the
good faith judgement of the Company. In the case of any of the foregoing, the
Company shall have the right, following notice and a reasonable opportunity to
cure of not less than thirty (30) days (except in the case of clauses (i), (iii)
and (vi) hereunder), to terminate this Agreement without further obligation to
the executive.
6.4 In the event that the Executive's employment hereunder is
terminated as a result of death, disability or for Cause by the Company, then
the Company shall have no further obligations or liabilities to the Executive
hereunder, such that all benefits and salary provided for within this Agreement
shall terminate simultaneously with the termination of the Executive's
employment.
6.5 In the event that the Executive's employment hereunder is
terminated for reasons other than Cause, the Company shall be obligated to pay
the Executive an amount equal to the balance of the Executive's base salary
which would have been earned for the remainder of the Term.
7. COVENANTS OF THE EXECUTIVE.
7.1 CONFIDENTIALITY. The Executive acknowledges that his employment
by the Company will, throughout his employment, bring him into close contact
with the confidential affairs of the Company, including information about costs,
profits, markets, sales, key personnel, pricing policies, operational methods,
and other business affairs, methods and information, including plans for future
developments, not readily available to the public. The Executive further
acknowledges that the services to be performed by him under this Agreement are
of a special, unique, unusual, extraordinary and intellectual character, and
that the Company currently competes or intends to compete with other
organizations that are located in all of the states of the
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United States. In recognition of the foregoing, the Executive covenants and
agrees that: (i) he will not knowingly divulge any material confidential matters
of the Company which are not otherwise in the public domain and will not
intentionally disclose them to anyone outside of the Company during his
employment by the Company hereunder or following the expiration or termination
of his employment with the Company for any reason; (ii) he will deliver promptly
to the Company at the end of Term, or at any other time as the Company may so
request, at the Company's expense, all memoranda, notes, records, reports and
other documents (and all copies thereof) relating to the businesses of the
Company which he obtained while employed by, or otherwise serving or acting on
behalf of, the Company, or any of its subsidiaries or affiliates, and which he
may then possess or have under his control; and (iii) during the Term and any
additional period during which the Executive may be employed by the Company
(whether or not such employment shall be pursuant to written agreement) the
Executive will not, unless the Board shall otherwise consent, along or together
with any other person, firm, partnership, corporation, or other entity
whatsoever (except any subsidiaries or affiliates of the Company), directly or
indirectly, whether as an officer, director, stockholder, partner, proprietor,
associate, employee, representative, public relations or advertising
representative, management consultant or otherwise, engage in or become or be
interested in or associated with any other person, corporation, firm,
partnership or other entity engaged in any business which is competitive with
any business conducted or contemplated by the Company.
7.2 ANTI-RAIDING. Executive agrees that during the Term and
thereafter for a period of six (6) months, he will not, as a principal, agent,
employee, employer, consultant, director or partner of any person, firm,
corporation or business entity, or in any individual or representative capacity
whatsoever, directly or indirectly, without the prior express written consent of
the Company, attempt to induce any person who is then in the employ of the
Company to leave the employ of the Company or employ, or attempt to employ, any
such person or persons who at any time during the six months period preceding
termination of Executive's employment with the Company was in the employ of the
Company.
7.3 Notwithstanding the provisions of Section 8.1(iii), the Executive
may own, as a passive investor, securities of a corporation engaged in a
competitive line of business whose equity securities are registered under
Section 12(b) or 12(g) of the Securities Exchange Act of 1934, so long as his
beneficial ownership in any one such corporation shall not in the aggregate
constitute more than five percent (5%) of any class of equity securities of such
corporation.
7.4 The parties agree that the remedy at law for any breach or
threatened breach of any covenant contained in this Section 8 will be inadequate
and that either party, in addition to such other remedies as may be available to
it, and/or them, at law or in equity, shall be entitled to injunctive relief
without bond or other security.
8. GOVERNING LAW. This Agreement shall be construed in accordance with
and governed by the laws of the State of Delaware applicable to contracts
executed in and to be performed solely within such state.
9. NOTICES. All notices required or permitted to be given by either party
hereunder, including notice of change of address, shall be in writing and
delivered by hand, or by telecopier or mailed, postage prepaid, certified or
registered mail, return receipt requested, to the other party as follows:
If to the Company: US WATS, Inc. If to Employee: Xxxx XxXxxxxx
000 Xxxxxx Xxxx 000 Xxxxxxx Xxxxx Way
0 Xxxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxxx 00000
Xxxxx 000
Xxxxxxxx, XX 00000
Attention: President & CEO
10. MISCELLANEOUS.
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10.1 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes any and all prior oral or written agreements and understandings;
however, this Agreement shall not supersede, diminish or modify any rights of
the Executive under any employee benefit plans of the Company. There are no oral
promises, conditions, representations, understandings, interpretations or terms
of any kind as conditions or inducements to the execution hereof or in effect
among the parties. This Agreement may not be amended, and no provision hereof
shall be waived, except by a writing signed by the Company and the Executive, or
in the case of a waiver, by the party waiving compliance therewith, which states
that it is intended to amend or waive a provision of this Agreement. Any waiver
of any rights or failure to act in any one instance shall not be regarded as an
agreement to waive any rights or failure to act in any other instance, whether
or not similar.
10.2 FURTHER ACTS. The parties hereto agree that, after the execution
of this Agreement, they will make, do, execute or cause to be made, done or
executed all such further and other lawful acts, deeds, things, devices,
conveyances and assurances in law whatsoever as may be required to carry out the
true intention and to give full force and effect to this Agreement.
10.3 SURVIVABILITY. Should any provision of this Agreement be held by
a court of competent jurisdiction to be unenforceable or prohibited by an
applicable law, this Agreement shall be considered divisible as to such
provision, which shall be inoperative, and the remainder of this Agreement shall
be valid and binding as though such provision were not included herein.
10.4 SUCCESSORS AND ASSIGNS. This Agreement shall insure to the
benefit of, and be binding upon, the Company and any corporation with which the
Company merges or consolidates (including Capsule Communications, Inc.) or to
which the Company sells all or substantially all of its assets, and upon the
Executive and his executors, administrators, heirs and legal representatives.
10.5 HEADINGS. All headings in this Agreement are for convenience
only and are not intended to affect the meaning of any provision hereof.
10.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts with the same effect as if the signatures to all such counterparts
were upon the same instrument, and all such counterparts shall constitute one
instrument.
IN WITNESS WHEREOF, the Executive has executed this Agreement and the
Company has caused this Agreement to be executed by its duly authorized
representative as of the day and year first above written.
ATTEST US WATS, INC.
By: By: Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
(corporate seal)
By: Xxxxxxx XxXxxxxx
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Xxxxxxx XxXxxxxx
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