Exhibit 10.1
SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), dated as of September 1,
1997, as amended and restated as of April 27, 1998 and as further amended and
restated as of February 1, 2000, is between ITXC Corp., a Delaware corporation
(the "Company"), and Xxx Xxxxxx (the "Executive").
WHEREAS, the Executive is the founder of the Company and has served as
Chairman and Chief Executive Officer of the Company since its formation; and
WHEREAS, the Company desires to assure the continuing services of the
Executive, the Executive desires to continue employment with the Company, and
each desires to enter into an agreement to provide for the terms of such
employment set forth herein;
WHEREAS, the Company and the Executive entered into an employment
agreement in September 1997 (the "Prior Agreement") which was amended and
restated in April 1998 (the "Amended and Restated Agreement"); and
WHEREAS, the Company and the Executive desire to further amend and
restate the Prior Agreement and the Amended and Restated Agreement,
NOW, THEREFORE, the Company and the Executive, intending for this
Agreement to (a) further amend the Prior Agreement and the Amended and Restated
Agreement and (b) restate the Prior Agreement and the Amended and Restated
Agreement in their entirety, hereby agree as follows:
1. Employment, Duties and Acceptance Term.
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1.1 Employment, Duties. The Company hereby employs the Executive for
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the Term (as defined in Section 1.4), to render services to the Company as
Chairman and Chief Executive Officer (reporting directly to the Company's Board
of Directors), and to perform such other duties consistent with such position as
may be assigned to the Executive by the Board of Directors. Notwithstanding
the foregoing, the Company expressly acknowledges and agrees that as the
Executive may, in his sole and absolute discretion, deem appropriate, the
Executive may be a member of the board of directors of corporations other than
the Company.
1.2 Acceptance. The Executive hereby accepts such employment and
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agrees to render the services described above. During the Term, the Executive
agrees to devote substantially all of the Executive's business time, effort and
skill to promote the interests of the Company, except as may be required as a
result of his membership on the board of directors of another corporation and
except for normal holiday and vacation periods and of periods of illness and
incapacity. The Executive further agrees to accept election, and to serve
during all or any part of the Term, as an officer or director of any subsidiary
of the Company, without any additional compensation therefor.
1.3 Location. The duties to be performed by the Executive hereunder
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shall be performed primarily at the headquarters office of the Company, subject
to reasonable travel requirements on behalf of the Company; the location of such
office shall not be changed outside of a radius of 25 miles from its current
location without the Executive's consent.
1.4 The Term. The term of the Executive's employment under this
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Agreement (the "Term") shall commence on the date hereof and shall end on March
31, 2001 (or such later date to which the Term may be extended by mutual written
agreement between the Company and the Executive), unless earlier terminated as
hereinafter provided.
2. Compensation; Benefits.
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2.1 (a) As compensation for services to be rendered pursuant to this
Agreement, the Company agrees to pay the Executive during the Term a base
salary, payable in accordance with the Company's payment policy for executive
officers, at the annual rates set forth below, less such deductions or amounts
to be withheld as required by applicable law and regulations (the "Base
Salary"), plus such increases as may be implemented from time to time in
accordance with this Section 2.1(a). Any increase in the Base Salary from the
annual rates set forth below shall be implemented by the Company only if
approved by the Board of Directors of the Company (or, if such Board delegates
such authority to its Compensation Committee, by such Compensation Committee)in
its discretion. In the event that the Board (or such Compensation Committee, if
applicable), in its sole discretion , from time to time determines to increase
the Base Salary, such increased amount shall, from and after the effective date
of the increase, constitute "Base Salary" for purposes of this Agreement and
shall not thereafter be reduced except as otherwise contemplated by Section
2.1(b) hereof. The Executive shall be entitled to annual compensation reviews in
which all aspects of his compensation (including, without limitation, benefits)
will be compared with the compensation (including, without limitation, benefits)
of chief executive officers of similarly situated companies toward the objective
of providing the Executive with appropriate rewards and incentives.
(b) Subject to Section 2.1(a) hereof, for the period from January 1,
2000 through March 31, 2001, the Base Salary shall be not less than a rate of
Three Hundred Thousand Dollars ($300,000) per year.
2.2 Bonus. In addition to the amounts to be paid to the Executive
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pursuant to Section 2.1, the Executive shall be eligible for an annual bonus.
The amount of the annual bonus shall be determined by the Board of Directors of
the Company (or, if such Board delegates such authority to its Compensation
Committee, by such Compensation Committee), in its sole discretion, and shall be
based upon the extent to which the Company has achieved financial goals approved
by the Board of Directors of the Company (or, if such Board delegates such
authority to its Compensation Committee, by such Compensation Committee). In the
event that the Company meets such goals, such annual bonus shall equal 100% of
the applicable Base Salary. In the event that the Company fails to meet such
goals or exceeds such goals, the amount of such annual bonus shall be determined
by the Board of Directors of the Company (or, if such Board delegates such
authority to its Compensation Committee, by such Compensation Committee), in
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accordance with the guidelines established by the Board of the Directors of the
Company (or the Compensation Committee) with respect to the relationship between
bonus payments and the achievement of targeted goals, as a bonus that is less
than (if the Company fails to meet such goals) or greater than (if the Company
exceeds such goals) 100% of the applicable Base Salary.
2.3 Business Expenses. The Company shall pay or reimburse the
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Executive for all expenses actually incurred or paid by the Executive during the
Term in the performance of the Executive's services under this Agreement, upon
presentation of expense statements or vouchers or such other supporting
information as the Company customarily may require of its officers.
2.4 Vacation. During the Term, the Executive shall be entitled to
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four (4) weeks paid vacation per year, taken in accordance with the vacation
policy of the Company during each year of the Term.
2.5 Fringe Benefits. The Executive shall be entitled to all benefits
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for which the Executive shall be eligible under the Company's 1998 Stock
Incentive Plan and any qualified pension plan, 401(k) plan, group insurance or
other so-called "fringe" benefit plan which the Company provides to its
employees generally, together with executive medical benefits for the Executive,
as from time to time in effect for executives of the Company generally.
3. Termination; Severance. The Executive's employment Term may be
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earlier terminated as follows:
3.1 By the Company.
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(a) For Cause. The Company may, by majority vote of the Board of
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Directors of the Company and written notice to the Executive, terminate his
employment for Cause (as defined below) and, upon such termination, this
Agreement shall terminate and the Executive shall be entitled to receive no
further compensation or benefits hereunder, except any as shall have been
accrued to the date of such termination or as required by law. "Cause" means
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any of the following: (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 of Directors of the Company, provided
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the Executive has received written notice of such failure from the Board of
Directors, the Executive has been given 30 days to cure such failure and the
Executive has failed to effect such cure; (ii) any act of fraud, moral
turpitude, misappropriation of material assets of the Company or similar conduct
against the Company; (iii) the conviction of the Executive for a felony or (iv)
any material breach (other than an inadvertent and curable breach) of the non-
competition covenant contained in Section 4 hereof or the confidentiality
covenant contained in Section 5 hereof.
(b) For other than Cause. The Company may at any time, by giving at
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least sixty (60) days prior written notice to the Executive, terminate his
employment for any reason. In the event the Company terminates the Executive's
employment for other than Cause, the Executive shall be entitled to receive, in
addition to compensation and other benefits accrued
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to the date of termination and anything else the Executive may be entitled to at
law or in equity, the severance payments set forth in Section 3.4 below.
3.2 By the Executive.
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(a) For Good Reason. The Executive may at any time by giving at
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least thirty (30) days prior written notice to the Company terminate his
employment for Good Reason (as defined below) and, upon such termination, this
Agreement shall terminate and the Executive shall be entitled to receive, in
addition to compensation and other benefits accrued to the date of termination
and anything else the Executive may be entitled to at law or in equity, the
severance payments set forth in Section 3.4 below. "Good Reason" means the
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Company's breach of any material provision of this Agreement (including,
without limitation, any failure to pay the compensation or provide the benefits
described in Section 2 hereof or any reduction in the Executive's position or
change in the nature of the Executive responsibilities from that contemplated in
Section 1.1 hereof or any relocation inconsistent with Section 1.3 hereof);
provided the Company has received written notice of such breach from the
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Executive, the Company has been given 30 days to cure such breach and the
Company has failed to effect such cure.
(b) For other than Good Reason. The Executive may at any time, by
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giving at least sixty (60) days prior written notice to the Company, resign from
the Company without Good Reason. In the event the Executive terminates his
employment for other than Good Reason, this Agreement shall terminate and the
Executive shall be entitled to receive no further compensation or benefits
hereunder, except (i) any as shall have accrued to the date of such termination,
(ii) any provided by Section 4.2(b) or (iii) as required by law.
3.3 Death; Disability. If the Executive shall die during the Term,
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the Term shall terminate and no further compensation or benefits shall be
payable hereunder except any as shall have been accrued to the date of such
termination or as required by law. If during the Term the Executive shall
become physically or mentally disabled, whether totally or partially, such that
the Executive is unable to perform the Executive's services hereunder for a
period of one hundred and fifty (150) consecutive days, or two hundred and ten
(210) non-consecutive days during a period of three hundred and sixty-five (365)
days, the Company shall have the right to terminate this Agreement within sixty
(60) days after the Company ascertains that it has the right to terminate this
Agreement, in which case no further compensation or benefits shall be payable
hereunder except any as shall have been accrued to the date of such termination
or as required by law.
3.4 Severance. In the event this Agreement is terminated (i) by the
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Company for other than Cause or (ii) by the Executive for Good Reason, the
Executive shall be entitled to receive his salary at the rate in effect
immediately prior to such termination (pursuant to Section 2.1), a bonus equal
to 100% of such salary and all other benefits then afforded to the senior
executive officers of the Company, paid at the Company's option in bi-weekly or
monthly installments, for a period of six (6) months (the "Severance Period").
In addition, the Executive shall receive a pro rata portion of the annual bonus
(pursuant to Section 2.2) for the year in which
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such termination occurs (the "Pro Rata Bonus"). Within ten (10) days of such
termination, the Company shall pay the Executive the Pro Rata Bonus. In the
event that the Company fails to pay (within five days after receiving written
notice of default) any amount required to be paid to Executive pursuant to this
Section 3.4, the Executive shall have no further obligation to comply with
Section 4 hereof; provided, however, that if the Company fails to make any such
payments due to a lack of sufficient financial resources to make such payments,
(i) the Executive shall remain obligated to comply with Section 4 hereof for a
period of ninety days after the Company first defaults in its obligations under
this Section 3.4 (but in no event for a period expiring after the last day in
which Section 4 would be operative had the Company made all required payments)
and (ii) the Executive shall not solicit any employee of the Company to leave
his or her employ with the Company for a period of twelve months after the
termination of Executive's employment with the Company.
4. Covenant not to Compete.
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4.1 The Executive covenants and agrees that he shall not, directly or
indirectly, anywhere within the United States or Canada, (1) become "Associated
With" any "Competing Business" or (2) 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. Notwithstanding the foregoing, nothing in this
Section 4 shall preclude Executive from becoming "Associated With" an entity
(including, without limitation, any telephone company) that (a) is engaged
predominantly in the business of providing telephony services to retail (and not
wholesale) customers and does not otherwise satisfy the definition of a
"Competing Business" below, or (b) as part of its overall business, engages in
the provision of Internet telephony services to wholesale customers if and only
if (A) Executive's responsibilities in connection with Executive's association
with such entity do not include the provision of such Internet telephony
services and (B) the provision of Internet telephony services to wholesale
customers does not represent a substantial portion of such entity's overall
business activities. For purposes of this Agreement, the following terms shall
have the following meanings:
"Competing Business" means the business of any person, corporation (for
profit or not for profit) or other entity which indirectly or directly
provides 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.
4.2 Non-compete Period.
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(a) The covenant not to compete set forth in Section 4.1 of this
Agreement shall restrict the Executive from the date of this Agreement until the
earliest of: (i) two (2) years following termination of this Agreement by the
Company for Cause; (ii) six (6) months following termination of this Agreement
by the Company other than for Cause; (iii) six (6) months following the
Executive's resignation with Good Reason prior to the expiration of the Term;
(iv) six (6) months following the Executive's resignation without Good Reason
prior to the expiration of the Term; and (v) upon termination of this Agreement,
if this Agreement terminates pursuant to Section 3.3 hereof or upon expiration
of the Term. Notwithstanding anything contained herein to the contrary, the
Company may, at its option, elect to extend the non-compete period set forth in
clauses (ii), (iii) and (iv) above, respectively, for successive periods of six
(6) months each (each such six (6) month period being referred to herein as an
"Extension Period"); provided, however, that no such extension shall be
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effective unless the Company provides written notice of such extension to the
Executive at least thirty (30) days prior to the date that the non-compete
period is due to expire; and provided further that in no event shall the non-
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compete period (including the initial non-compete period and any Extension
Periods) exceed two (2) years in the aggregate.
(b) In the event that the Company elects to extend the Non-Compete
Period pursuant to Section 4.2(a) above, (a) the Severance Period set forth in
Section 3.4 shall continue until the end of the Extension Period and (b) the
Company shall pay the Executive during any Extension Period his salary at the
rate in effect immediately prior to the termination of the Executive's
employment hereunder (pursuant to Section 2.1), a bonus equal to 100% of such
salary and all other benefits then afforded to the senior executive officers of
the Company, paid at the Company's option in bi-weekly or monthly installments.
4.3 If any of the covenants contained in Sections 4.1 or 4. 2, or any
part thereof, hereafter are construed to be invalid or unenforceable, the same
shall not affect the remainder of the covenant or covenants, which shall be
given full effect, without regard to the invalid portions.
4.4 If any of the covenants contained in Sections 4.1, 4.2 or 5, or
any part thereof, are 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 area of
such provision to the maximum extent possible and, in its reduced form, said
provision shall then be enforceable.
4.5 The parties hereto intend to and hereby confer jurisdiction to
enforce the covenants contained in Sections 4.1 and 4.2 upon the courts of any
state within the geographical scope of such covenants. In the event that the
courts of any one or more of such states shall hold such covenants wholly
unenforceable by reason of the breadth of such covenants or otherwise, it is the
intention of the parties hereto that such determination not bar or in any way
affect the Company's right to the relief provided above in the courts of any
other states within the geographical scope of such covenants as to breaches of
such covenants in such other respective jurisdictions, the above covenants as
they relate to each state being for this purpose severable into diverse and
independent covenants.
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4.6. In the event that any action, suit or other proceeding in law or
in equity is brought to enforce the covenants contained in Sections 4.1 and 4.2
or to obtain money damages for the breach thereof, and such action results in
the award of a judgment for money damages or in the granting of any injunction
in favor of the Company, all expenses (including reasonable attorneys' fees) of
the Company in such action, suit or other proceeding shall (on demand of the
Company) be paid by the Executive. In the event the Company fails to obtain a
judgment for money damages or an injunction in favor of the Company, all
expenses (including reasonable attorneys' fees) of the Executive in such action,
suit or other proceeding shall (on demand of the Executive) be paid by the
Company.
5. Confidential Information and Materials.
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5.1 "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 the Inventions as defined in Section 1
hereof and shall also include any materials that relate to, pertain to, record
or embody any of the foregoing.
5.2 "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
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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.
5.3. Executive acknowledges that (1) the Confidential Information has
been or will be developed at considerable time, expense and effort by or on
behalf of the Company, (2) the Confidential Information is or likely will be
unique and constitute valuable property of the Company, (3) the Confidential
Information provides or likely will provide the Company with a valuable
competitive advantage, (4) the Confidential Information has been or will be
owned by or on behalf of the Company or disclosed to the Company by third
parties with an expectation of confidentiality and (5) Executive shall not have
any ownership or other proprietary interest in any Confidential Information,
notwithstanding that it may be necessary for the Company to disclose some or all
of the Confidential Information to Executive in confidence in order for
Executive to perform his duties for the Company.
5.4 With respect to Confidential Information:
5.4.1 Executive shall use the Confidential Information only in
the performance of his duties to the Company, and shall not use or permit to be
used any Confidential Information at any time (whether during or after his
employment) for personal benefit, for the benefit of any other individual, firm,
corporation or other entity, or in any manner adverse to the Company's
interests; and
5.4.2 Executive shall not disclose or permit to be disclosed
any Confidential Information at any time (whether during or after his
employment) except to authorized personnel of the Company, unless (x) the
Company (or other owner of the Confidential Information) consents in advance in
writing or (y) such Confidential Information is required to be disclosed by any
court or governmental agency, or (z) the Confidential Information is required to
be disclosed in connection with the hearing of any dispute between the parties,
provided that in the case of any disclosure pursuant to clause (y) or (z),
Executive shall provide to the Company advance written notice of the proposed
disclosure and the Company shall be entitled to seek an appropriate protective
order to prevent the disclosure or to otherwise preserve confidentiality.
5.5 Executive shall take all reasonable security precautions, at
least as great as the precautions Executive takes to protect Executive's own
confidential information, to maintain the confidentiality of the Confidential
Information.
5.6 Executive shall notify the Company immediately upon discovery of
any unauthorized disclosure or use of Confidential Information, whether by
Executive or others, or any other breach of this Agreement by Executive, and
shall cooperate with the Company in every reasonable way to help the Company
regain possession of the Confidential Information and prevent further disclosure
and/or unauthorized use.
5.7 Confidential Information may be reproduced, summarized or
otherwise copied only for the performance of Executive's duties to the Company.
Executive shall
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segregate all materials that comprise, relate to, pertain to, record or embody
any Confidential Information from the confidential materials of others in order
to prevent commingling.
5.8 Executive shall return all originals, copies,
reproductions and summaries of Confidential Information upon any termination of
Executive's employment with the Company and also upon the Company's request.
5.9 All Confidential Information is and shall remain the
property of the Company. It is expressly agreed and understood that by
disclosing information to Executive, the Company does not grant any express or
implied right to Executive under any of the Company's patents, copyrights,
service marks or trademarks.
6. Intellectual Property.
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6.1 The Executive agrees that all patents, patent rights, copyrights
or any pending applications for registration thereof (if registered) relating to
the Company's business of providing Internet protocol telephony services and
operation of gateways, including, without limitation, computer programs and all
related material, licenses, inventions, research records, trade secrets,
processes, procedures, designs, engineering specifications and drawings and
analyses (collectively, "Intellectual Property") developed, invented or made by
him during the Term shall belong to the Company; provided that such Intellectual
Property was the result of the Executive's work with the Company or any of its
subsidiaries or affiliates during the Term.
6.2 If any Intellectual Property is described in a patent application
or is disclosed to third parties, directly or indirectly, by the Executive
within three (3) months after the termination of the Executive's employment by
the Company, it is to be presumed that the Intellectual Property was developed,
invented or made during the Term.
7. Indemnification.
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The Company shall indemnity the Executive, to the maximum extent
permitted by applicable law and except for any willful act, omission or gross
negligence, against all claims, liabilities, damages, losses, costs, charges and
expenses (including, without limitation, reasonable legal fees and expenses)
incurred, suffered or sustained by the Executive in connection with any pending
or threatened action, suit or proceeding to which the Executive may be made a
party by reason of the Executive's being an officer, director or employee of the
Company or of any subsidiary or affiliate of the Company. The right of
indemnification herein provided shall nor be deemed a waiver of any of the
rights to which the Executive may be entitled as a matter of law and any rights
of indemnity under any insurance policy carried by the Company.
8. Notices.
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All notices, requests, consents and other communications required or
permitted to be given hereunder shall be in writing and shall be deemed to have
been duly given if delivered personally, sent by overnight courier or mailed
first class, postage prepaid, by registered or certified mail (notices mailed
shall be deemed to have been given on the date mailed), as follows (or to such
other address as either party shall designate by notice in writing to the other
in accordance herewith):
If to the Company, to:
ITXC Corp.
000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Chief Financial Officer
If to the Executive, to:
Xxx Xxxxxx
000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
9. General.
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9.1 Governing Law. This Agreement shall be governed by and construed
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and enforced in accordance with the laws of the State of New Jersey applicable
to agreements made and to be performed entirely in New Jersey.
9.2 Section Headings. The section headings contained herein are for
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reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
9.3 Assignability. This Agreement, and the Executive's rights and
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obligations hereunder, may not be assigned by the Executive. The Company may
not assign its rights, together with its obligations, hereunder without the
express written consent of the Executive.
9.4 Subsidiaries and Affiliates. As used herein, the term
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"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 entity directly or indirectly controlling, controlled by or under
common control with the corporation or other business entity in question.
9.5 Amendments. This Agreement may be amended, modified. superseded.
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canceled, renewed or extended and the terms or covenants hereof may be waived,
only by a written instrument executed by both of the parties hereto, or in the
case of a waiver, by the party waiving compliance. The failure of either party
at any time or times to require performance of any provision hereof shall in no
manner affect the right at a later time to enforce the same. No waiver by
either party of the breach of any term or covenant contained in this Agreement,
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whether by conduct or otherwise, in any one or more instances, shall be deemed
to be, or construed as, a further or continuing waiver of any such breach, or a
waiver of the breach of any other term or covenant contained in this Agreement.
9.6 Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be deemed an original and enforceable against
the parties actually executing such counterpart, and all of which together shall
constitute one and the same instrument
9.7 Further Assurances. Each of the parties hereto shall, from time
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to time, upon the request of the other party hereto, duly execute, acknowledge
and deliver or cause to be duly executed, acknowledged and delivered, all such
further instruments and documents reasonably requested by the other party to
further effectuate the intent and purposes of this Agreement.
9.8 Entire Agreement. This Agreement sets forth the entire agreement
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and understanding of the parties relating to the subject matter hereof and
supersedes all prior agreements, arrangements and understandings, written or
oral, relating to the subject matter hereof, including without limitation the
Prior Agreement and the Amended and Restated Agreement. No representation,
promise or inducement has been made by either party that is not embodied in this
Agreement, and neither party shall be bound by or liable for any alleged
representation, promise or inducement not so set forth.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
ITXC CORP.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Executive:
/s/ Xxx Xxxxxx
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Xxx Xxxxxx
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