Exhibit 10.14
NET-tel Communications, Inc.
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and effective the 1st day of April, 2000, by and
between, NET-tel Communications, Inc., a Delaware corporation (hereinafter
referred to as "Net-tel" or "Corporation") having its principal place of
business at 0000 00xx Xxxxxx, XX, Xxxxxxxxxx, XX 00000 and Xxxxx Xxxxxxxx
(hereinafter referred to as the "Employee").
A. Corporation is engaged in the data and voice communications business
B. Corporation desires to hire the Employee.
C. Employee is willing to be employed by the Corporation.
D. The parties hereto desire to specify the terms of Employee's employment
by Corporation.
Therefore, the parties agree as follows.
1. Term of Employment.
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Corporation hereby employs Employee and Employee accepts employment
with and agrees to serve Corporation, subject to and upon the terms and
conditions of this Agreement. This Agreement shall commence on April 1, 2000,
and remain in full force and effect for three years. Effective as of the
expiration of such initial three-year term and as of each anniversary date
thereof, the term of this Agreement shall be extended for an additional 12-month
period unless terminated in writing at least ninety (90) days prior to the
expiration of the then current term. Notwithstanding the foregoing, Employee's
employment hereunder may be terminated earlier, as provided in Paragraph 13.
2. Duties.
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Employee shall be employed by the Corporation as the Chairman of the
Board, Chief Executive Officer and President or in such other positions
involving comparable responsibilities as the Board of Directors of the
Corporation may designate from time to time. Employee shall perform the duties
normally associated with such position. In addition, Employee shall perform
such other duties as the Corporation shall reasonably assign from time to time.
3. Compensation.
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3.1 As compensation for services rendered to the Corporation, the
Corporation shall pay Employee a Base Salary, which on an annualized basis would
be equivalent to (a) Three Hundred Thousand Dollars ($300,000) during the first
(1st) contract year hereof; (b) Three Hundred Twenty Five Thousand Dollars
($325,000) during the second (2nd) contract year hereof; and (c) Three Hundred
Fifty Thousand Dollars ($350,000) during the third (3rd) contract year hereof.
Employee's Base Salary shall be payable in installments at such intervals as the
Corporation pays the salaries of its management employees generally, but in no
event less frequently than on a monthly basis, and subject to such deductions
and withholdings as are required to be made pursuant to applicable government
laws, rules and regulations. Employee shall also be eligible for such
additional incentive compensation as may be determined by the Board of Directors
from time to time in its sole discretion.
3.2 Incentive Compensation. In addition to the base salary to which
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Employee is entitled pursuant to paragraph 3.1 hereof, Employee shall be
entitled to up to twenty-five percent (25%) of his annual base salary on a
quarterly basis based on the satisfactory performance of the approved Board
"Financial Plan", which shall include specific quarterly revenue and EBITDA
targets.
3.3 Employee shall be eligible under any executive pension plan of
Corporation if such plan becomes available.
3.4 The Corporation will reimburse Employee for his legal,
accounting, tax planning, financial planning and estate planning fees up to
$25,000 per year upon submission by Employee of invoices for such services.
4. Best Efforts.
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4.1 Employee agrees to perform faithfully, industriously, and to the
best of Employee's ability, experience, and talents, all of the duties that may
be required by the express and implicit terms of this Agreement, to the
reasonable satisfaction of Corporation. Such duties shall be performed at such
place(s) as the needs, business, or opportunities the Corporation may require
from time to time.
4.2 Employee agrees that so long as this Agreement continues in
effect, Employee shall devote substantially all of his full business time and
energies to the business and affairs of the Corporation, Employee shall use his
best efforts, skills and abilities to promote the Corporation's interests, and
Employee shall perform the duties described in this Agreement and such other
duties as may reasonably be assigned to Employee.
4.3 During the Employee's employment by Corporation, Employee shall
not directly, either as owner, partner, shareholder, broker, dealer, agent,
employee or otherwise, engage in any other significant business activity for
gain or profit or other pecuniary advantage without the approval of the
Corporation's Board of Directors or an authorized committee thereof; provided,
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however, that this paragraph shall not limit or restrict Employee's right to
make and have personal investments in such form or manner that do not require
Employee's active services in the daily operations or affairs of the business in
which such investments are made and do not otherwise conflict with Employee's
duties and obligations to the Corporation and this paragraph shall not limit or
restrict Employee's right to serve as a member of the board of directors of
other companies.
5. Personal Days
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5.1 Employee shall be entitled to thirty (30) paid personal days each
year.
5.2 At the end of each calendar year, Employee can elect to have up
to 20 of his unused personal days, paid to him as a bonus (based on Employee's
Base Salary). Employee can carry over the remainder of his unused personal days
into the following year, but at no time can Employee begin a new year on January
1 with more than 45 personal days.
6. Business Expenses.
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Employee shall be entitled to reimbursement by Corporation for any
ordinary and necessary business expenses incurred by Employee in the performance
of Employee's duties on behalf of the Corporation, provided that:
(a) Each such expenditure is of a nature qualifying it as a proper
deduction on the federal and state income tax returns of Corporation as a
business expense and not as compensation to Employee; and
(b) Employee furnishes to Corporation adequate records and other
documentary evidence as required by federal and state statutes and regulations
issued by the appropriate taxing authorities for the substantiation of such
expenditures as a deductible business expense of Corporation.
7. Reimbursement.
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Employee agrees that, if at any time any payment made to Employee by
Corporation as business expense reimbursement shall be disallowed in whole or in
part as a nondeductible expense of Corporation by any taxing authority, Employee
shall reimburse Corporation to the full extent of such disallowance, with
interest thereon at the rate as would be charged by the Internal Revenue Service
for such period from the date of reimbursement by Corporation until repaid.
8. Stock Options.
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Employee shall be entitled to options to purchase 750,000 shares of
common stock of the Corporation vesting ratably over a three year period, at
approximately 16.67% per six month period. The option price per share for the
first 250,000 shares shall be initial public offering price recorded on the
cover of the prospectus (referred to as the "IPO Price"), the option price for
the second 250,000 shares shall be 150 percent of the IPO Price, and the option
price for the third
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250,000 shares shall be 200 percent of the IPO Price. Other terms and conditions
of such options shall be set forth in an option agreement approved by the Board
of Directors and accepted by the Employee.
9. Prohibition on Using Confidential Information.
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9.1 Employee recognizes and acknowledges that Confidential
Information (defined below) is a valuable and unique asset of NET-tel, access
to and knowledge of which is essential to the performance of the Employee'
duties to NET-tel. Except as required to perform the services required under
this Agreement, Employee shall not, during his employment or any time
thereafter, disclose, in whole or in part, such Confidential Information to any
person, firm, corporation, association, or other entity for any reasons or
purpose whatsoever, or make use of such Confidential Information for his own
purposes or for the benefit of such person or other entity (except NET-tel),
under any circumstances.
9.2 Employee shall, prior to or upon leaving NET-tel, deliver to NET-
tel any and all records, items, media of any type (including all partial or
complete copies or duplicates) containing or otherwise relating to Confidential
Information whether prepared or acquired by Employee or provided to Employee by
NET-tel. Employee also acknowledges that all such records, items and media are
at all times and shall remain the property of NET-tel.
9.3 Confidential Information means information disclosed to or known
by an employee as a consequence or through his association with NET-tel,
including any information conceived, originated, discovered, or developed by
Employee, which is not generally known to the public or potential competitors of
NET-tel and which constitutes or relates to marketing, sales, research,
development, or know-how, including, but not limited to plans, specifications,
drawings, sketches, lay-outs and formulas, development and manufacture of the
products of the Corporation, purchasing, accounting, customer or contract
lists, trade engineering and technical data, computer software and hardware
design, information entrusted to NET-tel by third parties, or any trade secrets,
proprietary or confidential matter.
9.4 Employee shall not acquire any intellectual property rights under this
Agreement except the limited right to use set out above. Employee acknowledges
that, as between NET-tel and Employee, the Confidential Information and all
related copyrights and other intellectual property rights, are (and at all times
will be) the property of NET-tel, even if suggestions, comments, and/or ideas
made by Employee are incorporated into the Confidential Information or related
materials during the period of this Agreement.
10. Non-Solicitation.
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Employee recognizes and acknowledges that NET-tel has a national and
international market for its services, and that Employee's duties will be
performed in, and will require him to come into contact with the national and
international market. Employee acknowledges that this market is very
competitive and that because of these factors and because of the Confidential
Information and customer lists which NET-tel has purchased or developed that
have been or will be obtained by or disclosed to Employee, as well as the access
Employee has or will have to NET-tel's subscribers, customers, and accounts,
Employee will abide by the following conditions during his employment and for a
term of six months after termination of this Agreement and Employee's employment
thereunder, whether voluntary or involuntary. During this period, Employee will
not directly or indirectly:
(a) Induce or attempt to induce any employee of NET-tel to leave its
employ;
(b) Persuade or attempt to persuade any customer of Corporation to
cease doing business with the Corporation, to reduce the amount of business it
does with the Corporation, or to do business with any other person, firm, or
corporation that directly or indirectly engages in any business competitive to
that of the Corporation;
(c) Persuade or attempt to persuade any potential customer not to do
business with the Corporation or to do business with any other company, person,
or firm that directly or indirectly engages in any business competitive to that
of the Corporation. For the purposes of this subparagraph 10(c), the term
"potential customer" includes any person, firm, or corporation to which the
Corporation made a presentation or otherwise actively solicited at any time
during the twelve (12) months preceding the date of the termination of this
Agreement.
11. Covenant Not to Compete.
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Except as expressly noted herein, during Employee's employment with the
Corporation, and for a period of one (1) year following the termination of the
Agreement and Employee's employment thereunder (so long as the Company continues
to pay Employee's Base Salary during such period), Employee shall not, either
directly or indirectly own ten percent (10)%) or more of the equity securities
of) any person, firm, corporation or business (or serve as an employee, officer,
director or agent of any such person, firm, corporation or business) which
engages in the telecommunications business in the United States in a manner
which materially competes with the Company on the date of termination.
12. Enforcement of Confidential Information Clause, Non-Solicitation
Clause, and Covenant Not to Compete.
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If Employee breaches or threatens to breach the terms of the Confidential
Information clause, Non-Solicitation clause, or Covenant Not to Compete of this
Agreement, NET-tel may pursue any remedies it is or may be entitled to under the
law or equity, including injunctive relief. Employee acknowledges that NET-tel
would be irreparably injured upon Employee's breach of the foregoing provisions
regarding confidential information, non-solicitation, and covenant not to
compete, and it is difficult to ascertain with certainty the amount of money
damages NET-tel will suffer.
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Employee agrees, however, that a reasonable amount of such money damages would
be the incentive compensation and bonuses Employee was paid by NET-tel in the
six (6) month period prior to Employee's termination.
13. Termination.
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13.1 Termination for Cause. Corporation may terminate Employee's
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employment hereunder for cause. For purposes of this Agreement and subject to
the Employee's opportunity to cure as provided in Paragraph 13.2 hereof,
Corporation shall have "cause" to terminate Employee's employment hereunder if
such termination shall be the result of:
(a) willful fraud or dishonesty in connection with Employee's
performance hereunder that results in material harm to the Corporation;
(b) the repeated failure by Employee to substantially perform
his duties hereunder that results in material harm to the Corporation;
(c) material breach by Employee of Employee's obligations under
Paragraph 2 of this Agreement (other than as a result of incapacity due to
physical or mental illness), which is demonstrably willful and deliberate on
Employee's part and is committed in bad faith or without reasonable belief that
such conduct is in the best interests of the Corporation, or which is the result
of Employee's gross neglect of duties.
(d) the conviction for, or plea of nolo contendere to, a charge
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of a commission of a felony.
If the Employee's employment is terminated by the Corporation for cause,
the Corporation shall have no further obligations or liability hereunder, except
to pay to Employee (in addition to and without regard for any benefits due under
any insurance, retirement, stock option, or other benefit plan of the
Corporation or any other person or entity) the amount of Employee's
Compensation, including base salary, and incentive compensation and other
payments accrued but unpaid at the date of Employee's termination. If Employee
is terminated for Cause, he will forfeit his unused personal days and he will
immediately forfeit any and all unvested stock rights and stock options and
other such unvested incentives or awards previously granted to him by the
Corporation. The foregoing sentence shall be in addition to, and not in lieu
of, any and all other rights and remedies which may be available to the
Corporation under the circumstances, whether at law or in equity.
13.2 Notice and Opportunity to Cure. Notwithstanding the foregoing,
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it shall be a condition precedent to the Corporation's right to terminate
Employee's employment for "cause" that (1) the Corporation shall first have
given the Employee written notice stating with specificity the reason for the
termination ("breach"); (2) the Corporation provides Employee an opportunity to
appear before the Board to answer such grounds of termination; and (3) if such
breach is susceptible of cure or remedy, a period of 45 days from and after the
giving of such notice shall have elapsed without the Employee having effectively
cured or remedied such breach during such 45-day period, unless such breach
cannot be cured or remedied within 45 days, in which case the period for remedy
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or cure shall be extended for a reasonable time (not to exceed an additional 30
days), provided the Employee has made and continues to make a diligent effort to
effect such remedy or cure.
13.3 Termination Without Cause. If the Employee's employment is
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terminated by the Corporation without cause, the Employee will be entitled to
receive (i) severance compensation equal to what would have been his Base Salary
and Incentive Compensation under Paragraph 3.1, for two years from the date of
termination, payable at such times as his Base Salary and Incentive Compensation
would have been paid if his employment had not been terminated (or, at the
election of the Employee, in a lump sum without discount), payable when such
bonus would have been paid if Employee had remained actively employed (or, at
the election of the Employee, in a lump sum without discount), (ii) other
benefits accrued by him hereunder up to and including the date of such
termination, payable within ninety (90) days after the date of such termination,
and (iii) payment for unused personal days. In addition, the stock options to
which Employee is entitled pursuant to Paragraph 8 and the Corporation's Stock
Incentive Plan and/or any other equity incentive or similar plan which have not
been exercised will accelerate and vest as of the date of termination and the
Corporation will loan to Employee the money necessary for Employee to exercise
those options. The interest rate for such loan will be the minimum applicable
federal rate, and all principal and accrued interest thereon shall be due and
payable upon the earlier of (a) the sale of the shares acquired with the
proceeds of such loan or (b) three (3) years from the date such loan is made.
13.4 Death or Disability. In the event of Employee's death or the
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Employee's inability, due to a disability, to perform the essential functions of
his job with or without reasonable accommodation during the term of this
Agreement, Corporation shall have no further obligations or liability hereunder,
except to pay to Employee or Employee's estate (in addition to and without
regard for any benefits due under any insurance, retirement, stock option, or
other benefit plan of the Corporation or any other person or entity) the amount
of Employee's Compensation, including base salary, incentive compensation, and
unused personal leave, other payments accrued but unpaid at the date of
Employee's death or disability as described above. Employee's employment shall
be deemed terminated by reason of disability as described above only if the
Board of Directors of the Corporation shall determine in good faith that
Employee shall be unable to perform his duties by reason of such disability for
a period of at least four (4) consecutive months.
In addition, if the Employee is terminated by reason of disability he
shall receive severance compensation equal to what would have been his Base
Salary and incentive compensation pursuant to Section 3.1 and Section 3.2 for
the longer of six months or the remainder of what would have been the Term (but
not to exceed two years), payable at such times as his Base Salary and incentive
compensation would have been paid if his employment had not been terminated
(or, at the election of the Employee, in a lump sum without discount), less any
disability insurance benefits pursuant to any disability insurance provided by
the Corporation or purchased by the Employee, the cost of which is reimbursed by
the Corporation.
13.5 Termination by Employee for Other Than Good Reason. Employee
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may voluntarily terminate his employment with the Corporation for any reason
whatsoever, by providing Corporation written notice thereof. In such event,
Employee's employment shall terminate effective on the thirtieth day after the
receipt of such notice by Corporation unless the parties mutually agree
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to an earlier termination. Upon termination by the Employee for other than good
cause, the Corporation will pay Employee severance pay for a period of six
months to include Employee's Base Salary and Incentive Compensation, to be paid
in accordance with the Corporation's payment of Base Salary and Incentive
Compensation. However, if in the good faith belief of the Corporation, the
Employee breaches the prohibition against disclosing Confidential Information in
Paragraph 9, the Non-Solicitation clause in Paragraph 10, and the Covenant Not
to Compete in Paragraph 11.1, the Employee's entitlement to any severance or
incentive compensation pursuant to this Paragraph will cease immediately and the
Corporation shall have no further obligation or liability to Employee. Employee
will also be paid for his unused personal days. However, if Employee terminates
his employment under this Paragraph without giving 30 days notice of that
termination, he will forfeit his unused personal days.
13.6 Termination by Employee for Good Reason. The Employee's
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employment under this Agreement may be terminated by the Employee for "Good
Reason" upon thirty (30) days written notice to the Corporation. For this
purpose, "Good Reason" means (i) a change in the location of the Corporation's
headquarters or of the office of the Employee from the Washington, D.C.
metropolitan area; (ii) a material diminution in the Employee's title, authority
or duties, as the same exist on the date hereof; (iii) a reduction in Employee's
annual Base Salary or incentive compensation opportunity; and (iv) a material
breach of this Agreement by the Corporation. Notwithstanding the foregoing, a
termination shall not be treated as a termination for Good Reason (i) if the
Employee consented in writing to the occurrence of the event giving rise to the
claim of termination for Good Reason or (ii) unless the Employee delivered a
written notice to the Board within thirty (30) days of his having actual
knowledge of the occurrence of one of such events stating that he intends to
terminate his employment for Good Reason and specifying the factual basis for
such termination, and such event, if capable of being cured, shall not have been
cured within ten (10) days of the receipt of such notice. If the Employee
terminates this Agreement for "Good Reason," the Employee shall be entitled to
receive the same payments and benefits as he would be entitled to receive
pursuant to Paragraph 13.3 hereof in the case of a Termination without cause.
13.7 Return of Property. Upon termination of this Agreement,
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Employee shall deliver all property (including keys, records, notes, data,
memoranda, models, and equipment) that is in the Employee's possession or under
the Employee's control which is the Corporation's property or related to the
Corporation's business.
14. Arbitration.
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With the exception of the Corporation's enforcement of the Confidential
Information provisions in Paragraph 9, the Non-Solicitation Provisions of
Paragraph 10, and the Covenant Not to Compete in Paragraph 11, any dispute,
controversy, or claim arising out of or related to this Agreement, shall be
resolved exclusively by arbitration in the Washington, D.C. area before a single
arbitrator appointed by the American Arbitration Association (the "AAA") in a
confidential arbitration conducted on an expedited basis in accordance with
applicable AAA rules and procedures. The determination and award of the
arbitrator shall be conclusive and binding on the Corporation and the Employee,
and judgment on the arbitrator's award shall be entered in any court having
jurisdiction thereof.
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15. Successors.
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15.1 This Agreement is personal to Employee and neither it nor any
benefits hereunder shall, without the prior written consent of the Corporation,
be assignable by Employee.
15.2 This Agreement shall inure to the benefit of and be binding upon
the Corporation and its successors and assigns and any such successor or
assignee shall be deemed substituted for the Corporation under the terms of this
Agreement for all purposes. As used herein, "successor" and "assignee" shall
include any person, firm, corporation, or other business entity that at any
time, whether by purchase, merger, or otherwise, directly or indirectly acquires
the stock of the Corporation or to which the Corporation assigns this Agreement
by operation of law or otherwise.
16. Indemnification.
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The Corporation shall indemnify and hold harmless Employee to the fullest
extent permitted by law from and against any costs, expenses (including
attorney's fees) judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with the defense or settlement of any
threatened, pending, or future civil, criminal, administrative or investigative
action, suit or proceeding to which he is or is threatened to be made a party by
reason of the execution or performance of this Agreement, the fact that he is or
was a director, officer, employee, or agent of the Corporation or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, or other enterprise,
if (i) such action, suit or proceeding arises out of activities of the
Corporation prior to his assumption of such position, or (ii) in acting within
the scope of his employment, (1) he acted in good faith and in the manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, or (2) with respect to any criminal action or proceeding, he had
no reasonable cause to believe his conduct was unlawful. The Corporation shall
also advance to Employee to the fullest extent permitted by law any costs and
expenses incurred by Employee in connection therewith.
17. Governing Law.
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Because NET-tel is a national corporation, with employees working on a
national basis, to ensure uniformity, this Agreement is made pursuant to, and
shall be governed, construed, and enforced in all respects and for all purposes
in accordance with the laws of the State of Virginia.
18. Waivers.
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No consent or waiver, express or implied, by either party, to or of
any breach or default by the other in the performance by the other of its
obligations hereunder, shall be deemed or construed to be a consent or waiver
to, or of, any other breach or default in the performance by such other party
hereunder. Failure on the part of either party to complain of any act or
failure to act of any other party, or to declare any other party in default,
irrespective of how long such failure continues, shall not constitute a waiver
by such party of its rights hereunder.
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19. Amendments.
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This Agreement is subject to amendment only by a written Agreement
signed by all of the parties hereto.
20. Invalid Provisions.
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In the event any one or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provision of this Agreement, but this Agreement shall be construed as
if such invalid, illegal or unenforceable provision had never been contained
herein and the same shall be enforceable to the fullest extent permitted by law.
21. Attorneys' Fees.
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In the event of any arbitration or litigation between the parties
hereto to enforce any provision of this Agreement or any right of any party
hereto, the unsuccessful party to such arbitration or litigation agrees to pay
to the successful party, all costs and expenses, including reasonable attorneys'
fees and costs incurred therein.
22. Captions and Headings.
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The headings of the articles of this Agreement are inserted solely for
convenience of reference and are not a part of and are not intended to govern,
limit or aid in the construction of any term or provision hereto.
23. Entire Agreement.
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This Agreement contains the entire Agreement of the parties. It
supersedes any and all other agreements, either oral or in writing, between the
parties. Each party to this Agreement acknowledges that no representations,
inducements, promises or agreements, or otherwise, have been made by any party,
or anyone acting on behalf of any party, which are not embodied herein, and that
no other Agreement, statement or promise not contained in this Agreement shall
be valid or binding. This Agreement may not be modified or amended by oral
Agreement, but only by an Agreement in writing.
24. Use of Terms.
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Wherever the context of this Agreement requires, the masculine gender
includes the feminine or neuter, and the singular number includes the plural.
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25. Consideration.
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The parties hereto agree that no consideration, independent of the
services to be performed by Employee for Corporation and the compensation and
benefits to be provided Employee for such services as may be agreed to by
Corporation and Employee from time to time, exists or has been provided by
either party hereto to induce the other to enter into this Employment Agreement.
IN WITNESS WHEREOF, the parties to this Agreement have duly executed the
same on the date and year first above written.
NET-tel Communications, Inc. Employee:
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
Its:
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