EMPLOYMENT AGREEMENT
Exhibit C
THIS EMPLOYMENT AGREEMENT (the “Agreement”) is made and entered into as of the date set forth
on the signature page hereto by and between Trinsic, Inc., a Delaware corporation (the “Company”),
and Xxxxxx X. Xxxxxx (“Executive”).
WHEREAS, the Company and Executive desire to enter into this Agreement to assure the Company
of the services of Executive and to set forth the respective rights and duties of the parties
hereto;
WHEREAS, the Company is principally in the business of providing local, long-distance and
enhanced telecommunications services (such activities, present and future, being hereinafter
referred to as the “Business”); and
WHEREAS, the Company has developed and expects to develop trade secrets, methods of doing
business, business plans, computer software and other items worthy of protection;
NOW, THEREFORE, in consideration of the premises and the mutual covenants, terms and
conditions set forth herein, the Company and Executive agree as follows:
ARTICLE I
Employment
Employment
1.1 Employment and Title. The Company hereby employs Executive, and Executive hereby accepts
such employment, as Senior Vice President, Business and Consumer Marketing of the Company, all upon
the terms and conditions set forth herein.
1.2 Services. During the Term (as hereinafter defined) hereof, Executive agrees to perform
diligently and in good faith the duties of Senior Vice President, Business and Consumer Marketing
of the Company, under the direction of the Board of Directors of the Company (the “Board of
Directors”) and the Company’s Chief Executive Officer. Executive agrees to devote his best efforts
and a majority of his business time, energies and abilities to the services to be performed
hereunder and for the exclusive benefit of the Company. Executive shall be vested with such
authority as is generally commensurate with the position of Senior Vice President, Business and
Consumer Marketing of the Company, as further outlined below. Executive will report solely to the
Board of Directors and the Company’s Chief Executive Officer.
1.3 Location. The principal place of employment and the location of Executive’s principal
office shall be in Tampa, Florida, Atlanta, Georgia and Atmore, Alabama; provided, however,
Executive shall, if he or Company determines it to be reasonably necessary, engage in travel in the
performance of his duties under this Agreement.
1.4 Representations. Both parties represent and warrant to the other that they have full power
and authority to enter into and perform this Agreement and that their execution and performance of
this Agreement shall not constitute a default under or breach of any of the terms of any agreement
to which they are a party or under which they are bound. Both parties represent that no consent or
approval of any third party is required for their execution, delivery and performance of this
Agreement or that all consents or approvals of any third party required for their execution,
delivery and performance of this Agreement have been obtained. Executive further represents that
his employment hereunder will not involve the use of information or materials that belong to a
former employer or another person or entity and for which Executive has a duty of confidentiality.
ARTICLE II
Term
Term
2.1 The initial term of Executive’s employment hereunder shall commence as of the date hereof
(the “Commencement Date”) and shall continue for a period of three years, unless earlier terminated
pursuant to the provisions of this Agreement. The initial term and every renewal term thereafter
shall automatically renew for an additional one-year term unless either party delivers written
notice of non-renewal to the other party at least ninety (90) days before the expiration of the
initial term or renewal term as the case may be. The initial term and any renewal term are
hereinafter collectively referred to as the “Term.” The date upon which the Term (including any
renewal term if applicable) is to expire is referred to as the “Scheduled Termination Date.”
ARTICLE III
Compensation
Compensation
3.1 Base Salary. As compensation for the services to be rendered by Executive, the Company
shall pay Executive, during the Term of this Agreement, an annual base salary of not less than One
Hundred Eighty Thousand dollars($180,000), which base salary shall accrue monthly (prorated for
periods less than a month) and shall be paid in accordance with the Company’s standard payroll
practices. The base salary will be reviewed annually, or, more frequently, as appropriate, by the
Board of Directors for upward, but not downward, adjustment in its sole discretion.
3.2 Bonus Compensation. Executive will be entitled to participate in the Company’s bonus plan
as determined from time to time by the Compensation Committee of the Board of Directors.
3.3 Benefits. Executive shall be entitled, during the Term hereof, to the same medical,
hospital, dental, disability and life insurance coverage and benefits as are then available to the
Company’s most senior executive officers. Executive also shall be entitled, during the Term
hereof, to the Company’s normal vacation allowance and other paid time off for all Executives who
are executive officers of the Company, but not less than three weeks annually.
The Company shall not be obligated to adopt or continue any particular benefit plan or program
during the Term and Executive’s (and Executive’s dependents) participation in any such plan or
program shall be subject to the provisions, rules, regulations and laws applicable thereto.
3.4 Withholding. Any and all amounts payable under this Agreement, including amounts payable
under this Article III and Article VII, are subject to withholding for such federal, state and
local taxes required pursuant to any applicable law, rule or regulation.
ARTICLE IV
Working Facilities; Expenses and Insurance
Working Facilities; Expenses and Insurance
4.1 Working Facilities and Expenses. Executive shall be furnished with an office at the
Executive’s principal office as set forth in Section 1.3 hereof, or at such other location as
agreed to by Executive and the Company, and other working facilities and secretarial and other
assistance suitable to his position and reasonably required for the performance of his duties
hereunder. The Company shall reimburse Executive for all of Executive’s reasonable expenses
incurred while employed and performing his duties under and in accordance with the terms and
conditions of this Agreement, including all costs of non-local commuting, subject to Executive’s
full and appropriate documentation, including receipts for all such expenses in the manner required
pursuant to Company’s policies and procedures and the Internal Revenue Code of 1986, as amended
(the “Code”), and applicable regulations in effect from time to time.
4.2 Insurance. The Company may secure in its own name or otherwise, and at its own expense,
life, disability and other Insurance covering Executive or Executive and others, and Executive
shall not have any right, title or interest in or to such insurance other than as expressly
provided herein. Executive agrees to assist the Company in procuring such insurance by submitting
to the usual and customary medical and other examinations to be conducted by such physicians(s) as
the Company or such insurance company may designate and by signing such applications and other
written instruments as may be required by any insurance company to which application is made for
such insurance. Any information provided by Executive to such insurance company (the results of
examinations being deemed part of such information) will be provided on a confidential basis, and
the Company shall have no access thereto.
ARTICLE V
Illness or Incapacity or Death
Illness or Incapacity or Death
5.1 Right to Terminate. Except as provided by this Article and notwithstanding anything else
to the contrary contained in this Agreement, the Company shall have no right to terminate
Executive’s employment hereunder during any period that Executive suffers illness or incapacity.
The Company shall have the right to terminate Executive’s employment hereunder by delivery of
thirty (30) days written notice of termination if Executive is unable to perform, with reasonable
accommodation, in all material respects the essential duties of his employment hereunder for a
period of 90 consecutive days or for 120 cumulative days during any 180-day period by reason of
illness or incapacity. A termination of employment under this Article will be deemed a
termination “without Good Cause” as described in Section 7.3 hereof.
5.2 Right to Replace. If Executive’s illness or incapacity, whether by physical or mental
cause, renders him unable for a minimum period of thirty (30) consecutive calendar days to carry
out his duties and responsibilities as set forth herein, the Company shall have the right to
designate a person to temporarily perform Executive’s duties; provided, however, that if Executive
returns to work from such illness or incapacity within the six (6) month period following his
inability due to such illness or incapacity, he shall be entitled to be reinstated in the capacity
described in Article I hereof with all rights, duties and privileges attendant thereto.
5.3 Rights Prior to Termination. Executive shall be entitled to his full base salary under
Section 3.1 hereof and full benefits under Section 3.4 hereof during such illness or incapacity
unless and until an election is made by the Company to terminate Executive’s employment in
accordance with the provisions of this Article V. However, if Executive becomes eligible for
payment of compensation under a Company long-term disability plan, to the extent that Executive’s
full base salary under 3.1 exceeds the amount of long-term disability compensation, Company shall
continue to pay Executive any difference up to the amount of base salary, unless and until Company
elects to terminate Executive’s employment under Article V.
5.4 Determination of Illness or Incapacity. For purposes of this Article V, the term “illness
or incapacity” shall mean Executive’s inability to perform his duties hereunder substantially on a
full-time basis because of physical or mental illness or physical injury as determined by the Board
of Directors, in its reasonable discretion based upon competent medical evidence. Upon the
Company’s written request, Executive shall submit to reasonable medical and other examinations to
provide the evidence required hereunder.
5.5 Death of Executive. The Executive’s employment shall terminate automatically upon
Executive’s death during the Term of this Agreement, and such termination shall be considered a
termination without Good Cause.
ARTICLE VI
Trade Secrets and Confidential Information
Trade Secrets and Confidential Information
6.1 Confidentiality. Executive will hold Confidential Information in confidence and trust and
limit disclosure of Confidential Information strictly to persons who have a need to know such
Confidential Information in connection with the Business and who have agreed in writing with the
Company to maintain the confidentiality of such Confidential Information. Executive will not
disclose, use, or permit the use or disclosure of Confidential Information, except in satisfying
his obligations under this Agreement. Executive will use reasonable care to protect Confidential
Information from inappropriate disclosure, whether inadvertent or intentional, Notwithstanding the
foregoing, Executive may disclose Confidential Information if such disclosure is required by a
court order or an order of a similar judicial or administrative body; provided, however, that
Executive
notifies the Company of such requirement immediately and in writing, and cooperates reasonably
with the Company in obtaining a protective or similar order with respect thereto.
6.2 Confidential Information. For the purposes of this Agreement, the phrase “Confidential
Information” means information or materials that, in the Company’s view, provide advantage to the
Company over others not having such information or materials and includes by way of example: (i)
customer information, supplier information, sales channel and distributor information, material
terms of any contracts, marketing philosophies, strategies, techniques and objectives (including
service roll-out dates and volume estimates), legal and regulatory positions and strategies,
advertising and promotional copy, competitive advantages and disadvantages, non-published financial
data, network configurations, product or service plans, designs, costs, prices and names,
inventions, discoveries, improvements, technological developments, know-how, software code,
business opportunities (including planned or proposed financings, mergers, acquisitions, ventures
and partnerships) and methodologies and processes (including the look and feel of computer screens
and reports) for provisioning (whether in connection with interexchange carriers or incumbent local
exchange carriers), customer assistance, order acceptance and tracking, repairs, and commissions;
(ii) information designated in writing or conspicuously marked as “confidential” or “proprietary”
or likewise designated or marked with words of similar import; (iii) information for which the
Company has an obligation of confidentiality so long as such obligation is known to Executive; and
(iv) information of a nature that a reasonable person would conclude that it is confidential or
proprietary,
6.3 Notification of Third Party Disclosure Requests. If Executive receives any written or oral
third party request, order, instruction or solicitation for the disclosure of Confidential
Information not in conformance with this Agreement or if Executive becomes aware of any attempt by
a third party to improperly gain Confidential Information, Executive shall immediately notify the
Company’s General Counsel or the Board of Directors of such request, order, instruction or
solicitation or of such attempt and fully disclose the details surrounding such request, order,
instruction or solicitation or such attempt.
6.4 Non-Removal of Records. All documents, files, records, data, papers, materials, notes,
books, correspondence, drawings and other written, graphic or electronic records of the Business
and all computer software of the Company which Executive shall prepare or use, or come into contact
with, shall be and remain the exclusive property of the Company, in its discretion, and shall not
be physically, electronically, telephonically or otherwise removed from the Company’s premises
without the Company’s prior written consent.
6.5 Return or Destruction of Confidential Information. Confidential Information gained,
received or developed by Executive or in which Executive participated in developing will remain the
exclusive property of the Company, in its sole discretion. Executive will promptly return to the
Company all records, books, documents or any, other materials whatsoever (including all copies
thereof) containing such
Confidential Information in his possession or control upon the earlier of (i) the receipt of a
written request from the Company for return of all Confidential Information or (ii) the termination
of Executive’s employment hereunder.
6.6 Trade Secrets and Confidential Information of Others. In the course of his employment
hereunder, Executive will not use any information or materials that belong to any former employer
or any other person or entity and for which he has a duty of confidentiality or use or allow the
use of any illegally obtained confidential or secret information or materials.
ARTICLE VII
Termination
Termination
7.1 Termination by the Company. The Company may terminate the Executive’s employment hereunder
without Good Cause, as defined below, anytime not fewer than 30 days nor more than 45 days after
delivering written notice of termination to the Executive. The Company may terminate the
Executive’s employment hereunder for Good Cause anytime by delivery of written notice of
termination. A termination for Good Cause under this Section 7.1 shall be effective upon the date
set forth in a written notice of termination delivered to Executive. Good Cause will be limited to
the following circumstances:
| (a) | Executive has committed any fraud, dishonesty, misappropriation or similar act against the Company or an Affiliate of the Company; or | ||
| (b) | Executive is in default in a material respect in the performance of Executive’s obligations, services or duties hereunder, including Executive’s willfully disregarding the written or oral instructions of the Company’s Chief Executive Officer or Board of Directors concerning the conduct of his duties hereunder, Executive’s conduct which is materially inconsistent with the published policies of the Company, as promulgated from time to time and which are generally applicable to all employees or senior executives, or Executive’s continuing breach of any other material provision of this Agreement; or | ||
| (c) | Executive is grossly negligent or engages in willful misconduct in the performance of his duties hereunder; or | ||
| (d) | Executive has been adjudicated guilty by, or enters a plea of guilty or no contest before, a court of competent jurisdiction of illegal activities or is found by a court of competent jurisdiction to have engaged in other wrongful conduct and such illegal activities or wrongful conduct, individually or in the aggregate, has (or could be reasonably expected to have) a material adverse affect on the Company, its prospects, earnings or financial condition. |
7.2 Effect of Termination for Good Cause. If Executive’s employment is terminated by the
Company for Good Cause:
| (a) | Executive shall be entitled to accrued base salary under Section 3.1 and accrued but unpaid bonuses and accrued vacation pay and other paid time off, each through the date of termination; | ||
| (b) | Executive shall be entitled to reimbursement for reasonable expenses accrued through the date of termination in accordance with the provisions of Section 4.1 hereof; and | ||
| (c) | Except as provided in Article XI, this Agreement shall thereupon be of no further force and effect. |
7.3 Effect of Termination without Good Cause. If the Company terminates Executive’s employment
without Good Cause:
| (a) | Executive shall be entitled to accrued base salary under Section 3.1 and accrued vacation pay and other time off, each through the date of termination; | ||
| (b) | Executive shall be entitled to reimbursement for reasonable expenses accrued through the date of termination in accordance with the provisions of Section 4.1 hereof; | ||
| (c) | Executive shall be entitled to receive all amounts of base salary as would have been payable under Section 3.1 for a period of six (6) months (the “Severance Period”), which amounts shall be paid as and when such base salary would have been paid under this Agreement if employment had not been terminated; | ||
| (d) | Executive shall be entitled to receive at the Company’s expense, all benefits as would have been provided under Section 3.3 hereof through the Severance Period, which benefits shall be provided as and when the same would have been provided under the Agreement had employment not been terminated; | ||
| (e) | Notwithstanding any provision to the contrary and without limitation of any remedies to which the Company may be entitled: (1) the Company shall not be required to make any severance payments unless and until the Executive signs and delivers to the Company a general release waiving any and all claims that he may have against the Company and the period (if any) during which such release can be revoked expires; (2) Executive shall not be entitled to any severance payments if, at the time Executive’s employment is terminated, grounds exist for the termination of Executive’s employment for Good Cause; (3) Executive shall not be entitled to any severance payments with respect to any portion |
| of the Severance Period during which Executive is in violation of any of Executive’s obligations under Articles VI and VIII. |
| (f) | If the termination is within 6 months preceding or two years following a Change of Control (as defined herein), the Executive shall be entitled to receive a one-time, lump sum severance payment (due upon termination) equal to one and nine-tenths (1.9) times the total amount of the annual base salary payable under the terms of Section 3.1 of this Agreement plus any incentive or bonus paid in the prior year pursuant to Section 3.2 of this Agreement, which shall be paid promptly but no later than 30 days after termination; and | ||
| (g) | Except as provided in this Article and Article XI, this Agreement shall thereupon be of no further force or effect. |
7.4 Deemed Termination without Good Cause. If, within 6 months before or after a Change of
Control any of the following events occur, the Executive, at his sole option, may declare by thirty
days (30) written notice to the Company that his employment hereunder has been terminated by the
Company, and such termination will for all purposes of this Agreement be deemed a termination by
the Company without Good Cause:
| (a) | The Company removes the Executive from the office of Senior Vice President, Business and Consumer Marketing; | ||
| (b) | The Company materially changes the Executive’s reporting requirements; | ||
| (c) | The Company fails to afford Executive the power and authority generally commensurate with the position of Senior Vice President, Business and Consumer Marketing; or | ||
| (d) | The Company requires Executive to relocate his residence as of the date of this Agreement. |
In addition, either before or after a Change of Control, if the Company breaches any material
provision of this Agreement and does not cure its breach within 14 days of Executive’s 30-day
written notice of breach, then such breach will be deemed a termination without Good Cause.
7.5 Termination by Executive. Executive may terminate his employment hereunder by giving not
less than thirty (30) days written notice to the Company.
7.6 Effect of Termination by Executive. If Executive terminates his employment pursuant to
Section 7.5 hereof:
| (a) | Executive shall be entitled to accrued base salary under Section 3.1 |
| and accrued vacation pay and other paid time off, each through the date of termination; |
| (b) | Executive shall be entitled to reimbursement for reasonable expenses accrued through the date of termination in accordance with the provisions of Section 4.1 hereof; and | ||
| (c) | Except as provided in Article XI, this Agreement shall thereupon be of no further force and effect. |
7.7 Change of Control. For purposes of Section 7.3 of this Agreement, a “Change of Control”
shall be deemed to have occurred in the event of
| (a) | The acquisition by any person or entity, or group thereof acting in concert, of “beneficial” ownership (as such term is defined in Securities and Exchange Commission (“SEC”) Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), excluding any acquisition by a person, entity, or group that beneficially owns five percent (5%) or more of such securities as of the date of this Agreement, of securities of the Company or its subsidiaries which, together with securities previously owned, confer upon such person, entity or group the voting power, on any matters brought to a vote of shareholders, of fifty percent (50%) or more of the then outstanding shares of capital stock of the Company or its subsidiaries; or | ||
| (b) | The sale, assignment or transfer of substantially all of the assets of the Company or its subsidiaries in a transaction or series of transactions; or | ||
| (c) | The merger, consolidation, share exchange or reorganization of the Company or its subsidiaries as a result of which the holders of all of the shares of capital stock of the Company (or of its subsidiaries, as the case may be) as a group would receive less than fifty percent (50%) of the voting power of the capital stock or other interests of the surviving or resulting corporation or entity; or | ||
| (d) | The adoption of a plan of liquidation or the approval of the dissolution of the Company or of its subsidiaries; or | ||
| (e) | A determination by the Board of Directors of the Company, in view of then current circumstances or impending events, that a Change of Control has occurred or is imminent, which determination shall be made for the specific purpose of triggering the operative provisions of this Agreement. |
7.8 Certain Additional Payments by the Company.
| (a) | If it shall be determined that any payment, distribution or benefit received or to be received by Executive from the Company (“Payments”) would be subject to the excise tax imposed by Section 4999 of the Code or interest or penalties with respect to such excise tax (the “Excise Tax”), then Executive shall be entitled to receive an additional payment (the “Excise Tax Gross-Up Payment) within 30 days after such determination in an amount such that the net amount retained by Executive, after the calculation and deduction of the anticipated Excise Tax on the Payments and any federal, state and local income taxes and excise tax on the Excise Tax Gross-Up Payment provided for in this Section 7.8, shall be equal to the Payments. In determining this amount, Executive’s tax rate shall be deemed to be the highest statutory state and federal rates (on a combined basis) (including FICA and Medicare taxes) then in effect. Finally, the Excise Tax Gross-Up Payment shall be reduced by income or excise tax withholding payments made by the Company or any affiliate of either to any federal, state or local taxing authority with respect to the Excise Tax Gross-Up Payment that was not deducted from compensation payable to Executive. | ||
| (b) | All determinations required to be made under this Section 7.8, including whether and when an Excise Tax Gross-Up Payment is required and the amount of such Excise Tax Gross-Up Payment and the assumptions to be utilized in arriving at such determination, except as specified in Section 7.8(a) above, shall be made by the Company’s independent auditors (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Executive within 15 business days after any determination by Executive or the Company that an Excise Tax Gross-Up Payment may be necessary. The determination of tax liability made by the Accounting Firm shall be subject to review by the Executive’s tax advisor and, if Executive’s tax advisor does not agree with the determination reached by the Accounting Firm, then the Accounting Firm and Executive’s tax advisor shall jointly designate a nationally recognized public accounting firm, which shall make the determination. All fees and expenses of the accountants and tax advisors retained by either Executive or the Company shall be borne by the Company. Any Excise Tax Gross-Up Payment, as determined pursuant to this Section 7.8, with respect to a Payment shall be paid by the Company to Executive at such time as Executive is entitled to receive the Payment. Any determination by a jointly designated public accounting firm shall be binding upon the Company and Executive. | ||
| (c) | As a result of the uncertainty in the application of Subsection 4999 of the Code at the time of the initial determination hereunder, it is |
| possible that Excise Tax Gross-Up Payments will not have been made by the Company that should have been made consistent with the calculations required to be made hereunder (“Underpayment”). In the event that Executive thereafter is required to make a payment of any Excise Tax, any such Underpayment calculated in accordance with and in the same manner as the Excise Tax Gross-Up Payment in Section 7.8(a) above shall be promptly paid by the Company to or for the benefit of Executive. In the event that the Excise Tax Gross-Up Payment exceeds the amount subsequently determined to be due, such excess shall constitute a loan from the Company to Executive payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). |
ARTICLE VIII
Non-Competition and Non-Interference
Non-Competition and Non-Interference
8.1 Noncompetition. Executive agrees that during the course of his employment with the Company
and in the event of a termination of employment, for a period of the lesser of (x) six (6) months
after termination of such employment; and (y) the number of months after termination of such
employment during which Executive receives payments of base salary pursuant to Section 7.3(c),
Executive will not, directly or indirectly, as an employee, agent, independent contractor,
consultant, partner, joint venturer or otherwise, within any state in the United States within
which Executive has been involved with the provision of services (or offers or plans to provide
services) to customers of the Company within the twelve (12) months preceding the date of the
termination of Executive’s employment with the Company, enter into, engage in, be employed by
(except as counsel or independent accountant) or consult with (or solicit to enter into, engage in,
be employed by or consult with) any business which competes with the Company by providing services
of the same nature or type as those provided by the Company within the twelve (12) month period
preceding the termination of the Executive’s employment with the Company, including (a)
participating as an officer, director, stockholder, member, employee, agent, independent
contractor, consultant, representative or partner of, or having any direct or indirect financial
interest (including the interest of a creditor) in, any such competitor or (b) assisting any other
individual or business entity, of whatever type or description, in providing any such competing
services. The provisions of this section shall not apply to the ownership by Executive of less than
five percent (5%) of any publicly traded corporation or other business entity solely as an investor
and under circumstances in which Executive neither provides services nor assists anyone else to
provide any services to or on behalf of any such entity. Executive further agrees that upon a
violation of this section of this Agreement, the period during which Executive’s covenants in this
section apply will be extended by the number of days equal to the period of such violation.
8.2 Non-Solicitation. Executive agrees, during the course of his employment with the Company
and for a period of twenty-four (24) months after termination of that employment, whether
voluntarily or involuntarily, with or without Good Cause, that
Executive will refrain from and will not, directly or indirectly, as employee, agent,
independent contractor, consultant, partner, joint venturer or otherwise (a) solicit or counsel any
third person, partnership, joint venture, company, corporation, association, or other organization
that is or was a current customer of the Company within the twelve (12) months preceding the
termination of the Executive’s employment with the Company and with which Executive had a
substantial relationship within such preceding twelve (12) month period, regardless of such
person’s or entity’s location, to terminate any existing or prospective business relationship with
the Company or commence a similar business relationship with any other individual or business
entity; or (b) solicit any of the employees, agents, independent contractors or consultants of the
Company who are acting in such capacity or have acted in such capacity at any time within the
12-month period immediately preceding such proposed solicitation, regardless of such person’s or
entity’s location, to terminate any business relationship with the Company. Executive further
agrees that upon a violation of this section of this Agreement, the period during which Executive’s
covenants in this section apply will be extended by the number of days equal to the period of such
violation.
8.3 Severability. Every provision of this Article is intended to be severable. If any
provision or portion of a provision is held to be unenforceable or invalid by an arbitrator, court
or other tribunal, then the remainder of this Article will not be affected. Moreover, any
provision of this Article which is determined to be unreasonable, arbitrary or against public
policy will be modified as necessary so that it is not unreasonable, arbitrary or against public
policy. An unenforceably long period of time or unenforceably illegally large geographic area, for
example, should be reduced to a shorter period of time or smaller geographic area as is the maximum
allowed under applicable law.
8.4 Acknowledgements. Executive acknowledges that he has incurred the obligations set forth in
this Article solely in consideration of the Company’s execution of this Agreement and those
obligations (as well as this provision) will survive and continue notwithstanding the termination,
rescission or expiration of this Agreement or any provision of this Agreement. Executive further
acknowledges that the foregoing restrictive covenants are reasonable and necessary in light of the
circumstances, including the Confidential Information to which he has been and will be exposed, the
business relationships with the Company’s customers and others he has developed or will develop and
the specialized training he has received or will receive during his employment by the Company.
8.5 Counterclaims. The existence of any claim or cause of action Executive may have against
the Company will not at any time constitute a defense to the enforcement by the Company of the
restrictions or rights provided by this Article.
ARTICLE IX
Remedies
Remedies
9.1 Equitable Remedies. Executive and the Company agree that the services to be rendered by
Executive pursuant to this Agreement, and the rights and interests granted and the obligations to
be performed by Executive to the Company pursuant to
this Agreement, are of a special, unique, extraordinary and intellectual character, which
gives them a peculiar value, the lass of which cannot be reasonably or adequately compensated in
damages in any action at law, and that a breach by Executive of any of the terms of this Agreement
will cause the Company great and irreparable injury and damage. Executive hereby expressly agrees
that the Company shall be entitled to the remedies of injunction, specific performance and other
equitable relief to prevent a breach of Articles VI, VIII and XII of this Agreement, both pendente
lite and permanently, against Executive, as such breach would cause irreparable injury to the
Company and a remedy at law would be inadequate and insufficient. Therefore, the Company may, in
addition to pursuing its other remedies, obtain an injunction from any court having jurisdiction in
the matter restraining any further violation.
9.2 Rights and Remedies Preserved. Nothing in this Agreement except Section 10.11 shall limit
any right or remedy the Company or Executive may have under this Agreement or pursuant to law for
any breach of this Agreement by the other party. The rights granted to the parties herein are
cumulative and the election of one shall not constitute a waiver of such party’s right to assert
all other legal remedies available under the circumstances.
ARTICLE X
Miscellaneous
Miscellaneous
10.1 No Waivers. The failure of either party to enforce any provision of this Agreement shall
not be construed as a waiver of any such provision, nor prevent such party thereafter from
enforcing such provision or any other provision of this Agreement.
10.2 Notices. Any notice to be given to the Company and Executive under the terms of this
Agreement may be delivered in person, by courier or Federal Express, United Parcel Service,
Airborne Express U.S express mail or other similar nationally recognized overnight delivery service
that that obtains a confirmation of delivery, or by registered or certified mail, postage prepaid,
return receipt requested, and shall be addressed as follows:
| If to the Company: | Trinsic, Inc. | |||||
| 000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000 | ||||||
| Xxxxx, XX 00000 | ||||||
| Attention: General Counsel | ||||||
| If to Executive: | ||||||
Either party may hereafter notify the other in writing of any change in address. Any notice shall
be deemed duly given (i) when personally delivered, (ii) when delivered by courier or overnight
delivery service or (iii) on the third day after it is mailed by registered or certified mail,
postage prepaid, return receipt requested as provided herein.
10.3 Severability. The provisions of this Agreement are severable and if any provision of this
Agreement shall be held to be invalid or otherwise unenforceable, in whole or in part, the
remainder of the provisions, or enforceable parts thereof, shall not be affected thereby.
10.4 Successors and Assigns. The rights and obligations of the Company under this Agreement
shall inure to the benefit of and be binding upon the successors and assigns of the Company,
including the survivor upon any merger, consolidation, share exchange or combination of the Company
with any other entity. Executive shall not have the right to assign, delegate or otherwise transfer
any duty or obligation to be performed by him hereunder to any person or entity.
10.5 Entire Agreement. This Agreement supersedes all prior and contemporaneous agreements
(including any existing employment agreements) and understandings between the parties hereto, oral
or written, and may not be modified or terminated orally. No modification (except as otherwise
provided herein with respect to the modification of provisions that are unreasonable, arbitrary or
against public policy), termination or attempted waiver shall be valid unless in writing, signed by
the party against whom such modification, termination or waiver is sought to be enforced. This
Agreement was the subject of negotiation by the parties hereto and their counsel. The parties agree
that no prior drafts of this Agreement shall be admissible as evidence (whether in any arbitration
or court of law) in any proceeding that involves the interpretation of any provisions of this
Agreement.
10.6 Governing Law. This Agreement shall be governed by and construed in accordance with the
internal laws of the State of Florida without reference to conflict of law principles.
10.7 Construction. This Agreement was negotiated at arms’-length and will not be construed
more strongly against any party regardless of which party was responsible for its preparation.
Wherever from the context it appears appropriate, each term stated in either the singular or the
plural will include the singular and the plural, and pronouns stated in the masculine, feminine or
neuter gender will include the other genders. The words “Agreement,” “hereof,” “herein” and
“hereunder” and words of similar import referring to this Agreement refer to this Agreement as a
whole, including Exhibits, and not to any particular provision of this Agreement. Whenever the word
“include,” “includes” or “including” is used in this Agreement, it will be deemed to be followed by
the words “without limitation.” The various headings contained in this Agreement are inserted only
as a matter of convenience and in no way define, limit or extend the scope or intent of any of the
provisions of this Agreement,
10.8 Further Assurances. Each party hereto shall cooperate and shall take such further action
and shall execute and deliver such further documents as may be reasonably requested by the other
party in order to carry out the provisions and purposes of this Agreement.
10.9 Affiliate. The term “Affiliate” with respect to a party to this Agreement
means (i) any person or entity directly or indirectly controlling the party; (ii) any person
or entity controlled by or under common control with the party; (iii) any person or entity owning
or controlling 10% or more of the outstanding voting securities or interests of the party; (iv) any
officer, director, partner or employee of a person or entity described in (i), (ii) or (ill) above;
and (v) any entity for which a person or entity described in (i), (ii) or (iii) above is an
officer, director, partner, or employee,
10.10 Counterparts. This Agreement may be executed in counterparts, all of which taken
together shall be deemed one original.
10.11 Confidential Arbitration. The parties hereto agree that any dispute concerning or
arising out of the provisions of this Agreement, Executive’s employment or termination of
Executive’s employment shall be resolved by confidential arbitration in accordance with the rules
of the American Arbitration Association, Such confidential arbitration shall be held in Tampa,
Florida, and the decision of the arbitrator(s) shall be conclusive and binding on the parties and
shall be enforceable in any court of competent jurisdiction. The arbitrator may, in his or her
discretion, award attorney’s fees and costs to such party as he or she sees fit in rendering his or
her decision. Notwithstanding the foregoing, if any dispute arises hereunder as to which the
Company desires to exercise any rights or remedies under Section 9.1 hereof, the Company may, in
its discretion, in lieu of submitting the matter to arbitration, bring an action thereon in any
court of competent jurisdiction in Tampa, Florida, which court may grant any and all relief
available in equity or at law. In any such action, the prevailing party shall be entitled to
reasonable attorneys’ fees and costs as may be awarded by the court. This Section 10.11 shall have
no force and effect following a Change of Control.
10.12 Pirated Software. During the course of Executive’s employment by the Company, Executive
will not utilize or allow the utilization of computer software owned by another without permission
of the owner.
ARTICLE XI
Survival
Survival
The provisions of Articles VI, VII, VIII, IX and X of this Agreement and this Article shall
survive the termination, rescission or expiration of this Agreement whether upon, or prior to, the
Scheduled Termination Date hereof. The representations and warranties of the parties hereto shall
survive the execution of this Agreement and continue without limitation.
ARTICLE XII
Intellectual Property
Intellectual Property
12.1 Company Innovations. Except as permitted in Section 12.2 or as otherwise required under
applicable law, all Confidential Information, computer software, video and sound recordings,
scripts, creations, inventions, improvements, works of authorship, designs and discoveries
conceived, created, invented, authored, developed, produced or discovered by Executive while
employed by the Company,
whether alone or with others, whether during or after regular work hours, are and will be the
Company’s property exclusively, in its sole discretion, Executive hereby assigns to the Company all
copyrights, trademarks and other rights of authorship or ownership he may have with respect to such
items. Moreover, at any time, without additional consideration, Executive will execute and deliver
any documents or instruments that the Company may request in order to effectively convey and
transfer good title and right to, and put the Company in possession of, or otherwise protect its
interest in, such items.
12.2 Executive’s Own Innovations. No provision in this Agreement is intended to require
Executive to assign or offer to assign any of Executive’s rights in any invention for which no
equipment, supplies, facility, or trade secret information of the Company was used and which was
developed entirely on the Executive’s own time, unless (a) the invention relates (i) to the
business of the Company, or (ii) to the Company’s actual or demonstrably anticipated research or
development, or (b) the invention results from any work performed by the Executive for the Company.
Executive shall bear the burden of proving that Executive’s invention qualifies under this Section
12.2.
IN WITNESS WHEREOF, the parties hereto have executed this Employment Agreement as of the date
set forth.
| TRINSIC, INC., | ||||||
| a Delaware corporation | ||||||
| By: | ||||||
| Chief Executive Officer | ||||||
| DATE: | ||||||
| [Executive] | ||||||
