Exhibit 10.17
EMPLOYMENT AGREEMENT
AGREEMENT dated as of May 18, 2000 (the "Effective Date"), by and
between TOTAL-TEL USA COMMUNICATIONS, INC., a New Jersey corporation, (the
"Company" or "Employer"), with offices at 000 Xxxxx Xxxx, Xxxxxx Xxxxx, Xxx
Xxxxxx 00000 and A. Xxxx Xxxxx Jr., 0000 Xxx Xxxxx Xxxx, Xxxxxxx, XX 00000
("Executive").
WITNESSETH
WHEREAS, the Company and Executive desire to enter into this Employment
Agreement (the "Agreement") in order to set forth the terms and conditions of
Executive's employment effective May 18, 2000 intending to supersede any prior
employment agreement, written or oral, whether with the Company or any of its
subsidiaries.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein and other good and valuable consideration, receipt of which is
acknowledged, the parties hereto agree as follows:
1. DUTIES AND RESPONSIBILITIES. The duties and responsibilities of
Executive shall be of a senior executive and managerial nature as the same shall
be assigned to him, from time to time, by the Board of Directors of the
Employer. Executive recognizes that, during the period of his employment
hereunder, he owes an undivided duty of loyalty to Employer and agrees to devote
all of his business time and attention to the performance of said duties and
responsibilities and to use his best efforts to promote and develop the business
of Employer and its affiliates. It is the intention of the Employer that
Executive shall be appointed President and Chief Executive Officer of the
Employer to serve at the pleasure of Employer's Board of Directors. During the
employment period as hereinafter defined, Executive shall serve as an officer
and/or director of Employer and/or any of its affiliates, if elected, and shall
serve as a member of any committee of any such Board of Directors to which he
may be elected or appointed, without additional compensation.
2. EMPLOYMENT PERIOD. For a period commencing on the Effective Date
hereof and ending on the second anniversary of the Effective Date hereof (the
"Employment Period"), Employer hereby employs Executive in the executive and
managerial capacities herein set forth. Executive agrees, pursuant to the terms
hereof, to serve in said capacities for the Employment Period. This Agreement
and the Employment Period shall be automatically extended for additional one (1)
year periods (each a "Successive Employment Period") unless a party, by written
notice as herein provided, notifies the other party by a date which is not less
than ninety (90) days prior to the expiration of the Employment Period or any
Successive Employment Period that there shall be no extension or further
extension of this Agreement.
3. COMPENSATION.
(a) For all services performed by Executive for the Company during
the Employment period or any Successive Employment Period, the
Company shall pay Executive, in accordance with the normal pay
practice of the Company, a base Salary of $300,000 per annum,
payable not less frequently than in equal monthly
installments, which may be increased annually, effective as of
an anniversary of the date hereof during the Employment Period
or any Successive Employment Period, at the sole discretion of
the Board of Directors.
(b) During each year of the Employment Period and any Successive
Employment Period, Executive shall be eligible to receive a
bonus ("Bonus") in an amount not to exceed one hundred (100%)
percent of his then effective base Salary predicated upon
Employer's attainment of Annual Revenue and Earning Targets as
well as management goals determined by the Board of Directors
for each twelve-month period ending April 30 covered by the
Employment Period and any Successive Employment Period, after
good faith negotiations with Executive to be completed within
sixty (60) days after the commencement of each such period.
Executive will be guaranteed a minimum bonus payment of
$150,000.00 during the first year of this Agreement.
(c) Executive may also receive other bonus payments determined at
the sole discretion of the Board of Directors ("Discretionary
Bonus").
(d) The Bonus compensation, if any, to be paid pursuant to
paragraph 3(b) shall be paid as promptly as practicable
following the availability of the financial statements of the
Company relating to the applicable period, but in no event
later than one hundred twenty (120) days after the end of the
applicable twelve-month period.
(e) During the Employment Period, Executive shall be entitled to
perquisites, including, without limitation, a private office,
secretarial, computer and other support services and
facilities consistent with his position. Executive shall be
entitled to business class airline travel on flights over four
(4) hours duration while engaged in Company business.
(f) Executive shall also be entitled to the following benefits:
(i) 4 weeks (20 business days) of paid vacation for each
twelve (12) months of the Employment Period, or such
greater period as may be approved from time to time
by the Company's Board of Directors or the
Compensation Committee thereof; however, Executive
shall not be compensated for any unused vacation
days;
(ii) paid holidays as provided to the Company's other
executive employees;
(iii) participation in such employee benefit plans to which
executive employees of the Company, their dependents
and beneficiaries generally are entitled during the
Employment Period and any Successive
Employment Period, including, without limitation,
health insurance, disability and life insurance,
pension and profit sharing plans and other present or
equivalent successor plans and practices of the
Company for which executive employees, their
dependents and beneficiaries are eligible and, in
addition to the foregoing, such stock options or
other equity incentives as the Company's Board of
Directors, in its sole discretion, may at any time
grant or award to Executive; and
(iv) reimbursement of Executive's business and
professional dues.
(g) The Executive shall be granted a stock option to purchase the
Company's Common Stock which shall vest on various anniversary
dates; if the Executive is still employed on those dates.
Details of the option grant are set forth on ADDENDUM A to
this Agreement.
4. REIMBURSEMENT OF EXPENSES. The Company recognizes that Executive, in
performing Executive's functions, duties and responsibilities under this
Agreement, may be required to spend sums of money in connection with those
functions, duties and responsibilities for the benefit of the Company and,
accordingly, shall reimburse Executive for travel and other out-of-pocket
expenses reasonably and necessarily incurred in the performance of his
functions, duties and responsibilities hereunder upon submission of written
statements and/or bills in accordance with the then regular procedures of the
Company.
5. DISABILITY. In the event that Executive shall be unable to perform
because of illness or incapacity, physical or mental, all the functions, duties
and responsibilities to be performed by him hereunder for a consecutive period
of three (3) months or four (4) months during any consecutive twelve (12) month
period during the Employment Period or any Successive Employment Period, the
Company may terminate this Agreement effective on or after the expiration of
such period (the "Disability Period") upon written notice to Executive
specifying the termination date (the "Disability Termination Date"). Executive
shall be entitled to receive his base Salary and a pro-rated portion of any
Bonus earned to the Disability Termination Date. Disability under this
paragraph, shall be determined by a physician who shall be selected by the
Company and reasonably approved by the Executive. Such approval shall not be
unreasonably withheld or delayed, and a physician shall be deemed to be approved
unless he or she is disapproved in writing by the Executive within ten (10) days
after his or her name is submitted. The Company may obtain disability income
insurance for the benefit of Executive in such amounts as the Company may
determine.
6. DEATH. LIFE INSURANCE. In the event of the death of Executive during
the Employment Period or a Successive Employment Period, this Agreement and the
employment of Executive hereunder shall terminate on the date of death of
Executive. Executive's heirs or legal representatives shall be entitled to
receive his base Salary and a pro-rated portion of any Bonus earned to the date
of his death.
7. TERMINATION.
(a) The Company may discharge Executive for cause at any time.
Cause for discharge shall include (i) a material breach of
this Agreement by Executive and if such breach is not cured
within thirty (30) days following written notice by the
Company to Executive of such breach, assuming such breach may
be cured; (ii) Executive is convicted of any act or course of
conduct involving moral turpitude; or (iii) Executive engages
in any act or course of conduct constituting an abuse of
office or authority which significantly adversely affects the
business or reputation of the Company. Any written notice by
the Company to Executive pursuant to this paragraph 7(a) shall
set forth, in reasonable detail, the facts and circumstances
claimed to constitute the cause. If, during the Employment
Period or any Successive Employment Period, Executive is
discharged for cause, the Company, without any limitation on
any remedies it may have at law or equity, shall have no
liability for base Salary or any other compensation and
benefits to Executive after the date of such discharge.
(b)(1) After a Change in Control (as defined below) of the
Company has occurred, all of Executive's stock options, stock
appreciation rights, restricted stock grants or stock bonuses
and similar benefits shall be deemed to vest in full on the
effective date of such Change of Control, notwithstanding any
provision to the contrary in any applicable agreement or plan.
If the Company (or any successor thereto) terminates
Executive's employment with the Company within six (6) months
after the Change in Control, Executive shall be entitled to
receive the sum of (1) his base Salary (but in no event less
than six (6) month's base Salary), Bonus compensation, if any,
pro-rated to the date of termination, incentive stock
compensation, benefits, perquisites and awards, including,
without limitation, immediate vesting of benefits and awards
under the Company's stock option, stock appreciation,
restricted stock, stock bonus or similar plan to the extent
not theretofore vested and any Company pension or retirement
plan or program, accrued through the date Executive's
employment with the Company would otherwise terminate pursuant
to the terms hereof (the "Termination Date"). Notwithstanding
the foregoing, if Executive is offered an employment agreement
("New Agreement") by the Company within sixty (60) days after
the Change in Control, having a term of not less than twelve
(12) months on terms substantially similar to those provided
herein, Executive shall not be entitled to the Termination
Compensation unless within three (3) months after Executive's
acceptance of the New Agreement, Executive determines to sever
his employment relationship with the Company, in which event,
the Executive shall be entitled to the Termination
Compensation. The amount of the Termination Compensation shall
be computed, at the expense of the Company, by the independent
public accountants regularly employed by the Company
immediately prior to the Change in Control (the
"Accountants"), whose computation shall be conclusive and
binding upon Executive and the Company in the absence of
manifest error.
(b)(2) For purposes hereof, a "Change in Control" shall be
deemed to have occurred if:(i) any "person" or "group" (as
such terms used in Sections (3), 3(a), (9) and 13(d) of the
Securities Exchange Act of 1934, as amended (the "Act") other
than Xxxx Xxxxxxxx, Revision LLC or any or their respective
affiliates becomes a "beneficial owner" (as such term is used
in Rule lad-s promulgated under the Act), after the date
hereof, directly or indirectly, of securities of the Company
representing fifty (50%) percent or more of the combined
voting power of the Company's then outstanding securities;
(ii) a change in "control" of the Company (as the term
"control" is defined in Rule 12b-2 or successor rule
promulgated under the Act) shall have occurred; (iii) the
majority of the Board of Directors, as such entire Board of
Directors is composed as of the date hereof, no longer serve
as directors of the Company,
except that there shall not be counted toward such majority
who no longer serve as directors Executive, if elected, a
director of the Company or any director who ceased to serve
either prior to the date of a Change in Control, for any
reason, or at any other time due to voluntary resignation
(other than in connection with an event described in (iv) or
(v) below), death, disability or termination for cause; (iv)
the shareholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the
Company's assets; or (v) the shareholders of the Company
approve a merger or consolidation of the Company with any
other company, other than a merger or consolidation which
would result in the combined voting power of the Company's
voting securities outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving
entity) more than fifty (50%) percent of the combined voting
power of the voting securities of the Company or such
surviving entity outstanding immediately after such merger or
consolidation; provided, however, that no Change in Control
shall be deemed to have occurred in any plan of liquidation,
sale of assets, merger or consolidation provided in (iv) and
(v) above is not consummated. Notwithstanding the foregoing,
any transaction involving a leveraged buyout or other
acquisition of the Company which would otherwise constitute a
Change in Control, in which Executive participates in the
surviving or successor entity (other than solely as an
employee or consultant, shall not constitute a Change in
Control).
(b)(3) Notwithstanding anything in this Agreement to the
contrary, Executive shall have the right, prior to the receipt
by him of any amounts due thereunder, to waive the receipt
thereof or, subsequent to the receipt by him of any amounts
due hereunder, to treat some or all of such amounts as a loan
from the Company which Executive shall repay to the Company,
within ninety (90) days from the date of receipt, with
interest at the rate provided in Section 7872 of the Internal
Revenue Code of 1986, as amended (the "Code") . Notice of any
such waiver or treatment of amounts received as a loan shall
be given by Executive to the Company in writing and shall be
binding upon the Company.
(b) (4) It is intended that the "present value" of the
payments and benefits to Executive, whether under this
Agreement or otherwise, which are included in the computation
of "parachute payments" shall not, in the aggregate, exceed
2.99 times the "base amount" (the terms "present value",
"parachute payments" and "base amount" being determined in
accordance with Section 380G of the Code) - However, if
Executive receives payments or benefits from the Company prior
to payment of the Termination Compensation which, when added
to the Termination Compensation, would, in the opinion of the
Accountants, subject any of the payments or benefits to
Executive to the excise tax imposed by Section 4999 of the
Code, the Company shall be responsible for payment of such tax
and shall gross-up the payment to Executive, accordingly, so
as to make the impact of such tax neutral with respect to
payments made to Executive.
8. DISCLOSURE OF CONFIDENTIAL INFORMATION. "Confidential Information"
means all information known by Executive, because of employment by the Company,
about the Company's business plans, present or prospective customers, vendors,
products, processes, services or activities, including the costing and pricing
of such services or activities. Confidential Information does not include
information generally known, other than through breach of a confidentiality
agreement with the Company, in the industry in which the Company engages or may
engage. Executive will not, during or after the Employment Period, directly or
indirectly, use or disclose any Confidential Information, except in the
performance of Executive's duties for the Company, or to other persons as
directed by the Company. Executive will use reasonable efforts to prevent
unauthorized use or disclosure of Confidential Information. Upon termination of
employment with the Company, Executive will deliver to the
Company all writings relating to or containing Confidential Information,
including, without limitation, notes, memoranda, letters, drawings, diagrams,
and printouts, including any tapes, discs or other forms of recorded
information. If Executive violates any provision of this paragraph during or
after the Employment Period or any Successive Employment Period, the Company
specifically reserves the right, in appropriate circumstances, to seek full
indemnification from Executive should the Company suffer any monetary damages or
incur any legal liability to any person as a result of the disclosure or use of
Confidential Information by Executive in violation of this paragraph.
9. RESTRICTIVE COVENANT. Upon termination of the Employment Period or
any Successive Employment Period, Executive shall not for a period of one (1)
year following the date of termination of the Employment Period or Successive
Employment Period, (herein the "Restriction Period"), directly or indirectly, in
any capacity, engage in or participate in the management, ownership or operation
of any business or activity which directly or indirectly competes with the
business conducted by the Company, except in the States of North and South
Dakota, Idaho, Montana and Alaska. Without limiting the generality of the
foregoing, during the Restriction Period, Executive shall not (i) employ or
solicit the employment of any person who was employed by the Company at the date
of termination of the Employment Period or Successive Employment Period, or
during the one (1) year prior thereto, or (ii) solicit any customer of the
Company which produced Net Revenue for the Company in excess of $2,000 per month
during said one (1) year period. Executive recognizes and hereby acknowledges
that the restrictions imposed upon Executive in this paragraph are reasonable
and are necessary for the protection of the business of the Company; provided,
however, that Executive may own not more than five percent (5%) of the
outstanding securities of any class of any corporation engaged in any such
business, if such securities are listed on a national securities exchange or
regularly traded in the over-the-counter market by a member of a national
securities association.
10. OWNERSHIP OF INVENTIONS. Discoveries and Improvements. Executive
shall promptly disclose in writing to the Board of Directors of the Company all
inventions, discoveries, and improvements conceived, devised, created, or
developed by Executive in connection with his employment (collectively,
"Invention"), and Executive shall transfer and assign to the Company all right,
title and interest in and to any such Invention, including any and all domestic
and foreign patent rights, domestic and foreign copyright rights therein, and
any renewal thereof. Such disclosure is to be made promptly after the conception
of each Invention, and each Invention is to become and remain the property of
the Company, whether or not patent or copyright applications are filed thereon
by the Company. Upon request of the Company, Executive shall execute from time
to time during or after the termination of employment such further instruments
including, without limitations, applications for patents and copyrights and
assignments thereof as may be deemed necessary or desirable by the Company to
effectuate the provisions of this paragraph.
11. CONSTRUCTION. If the provisions of paragraph 9 should be deemed
unenforceable, invalid, or overbroad in whole or in part for any reason, than
any court of competent jurisdiction designated in accordance with paragraph 13
is hereby authorized, requested, and instructed to reform such paragraph to
provide for the maximum competitive restraint upon Executive's activities (in
time, product, geographic area and customer or employee solicitation) which may
then be legal and valid.
12. DAMAGES AND JURISDICTION.
(a) Executive agrees that violation of or threatened violation of
any of paragraphs 9, 10 or 11 would cause irreparable injury
to the Company for which any remedy at law would be
inadequate, and the Company shall be entitled in any court of
law or equity of competent jurisdiction to preliminary,
permanent and other injunctive relief against any breach or
threatened breach of the provisions
contained in any of said paragraphs 9, 10 or 11 hereof, and
such compensatory and punitive damages as shall be awarded.
Further, in the event of a violation of the provisions of
paragraph 10, the Restriction Period referred to therein shall
be extended for a period of time equal to the period that any
violation occurred.
13. JURISDICTION AND VENUE. This Agreement shall be governed by and
construed in accordance with the laws of the State of New Jersey. The Company
and Executive hereby each consents to the jurisdiction of the Superior Court of
the State of New Jersey for the County of Passaic or the United States District
Court for the District of New Jersey with respect to any dispute arising under
the terms of this Agreement and further consents that any process or notice of
motion therewith may be served by certified or registered mail or personal
service, within or without the State of New Jersey, provided a reasonable time
for appearance is allowed.
14. INDEMNIFICATION. To the fullest extent permitted by and subject to
the Company's Certificate of Incorporation, By- Laws and New Jersey Law, the
Company shall indemnify and hold harmless the Executive against any losses,
damages or expenses (including reasonable attorney's fees) incurred by him or on
his behalf in connection with any threatened or pending action, suit or
proceeding in which he is or becomes a party by virtue of his employment by the
Company or any of its affiliates or by reason of his having served as a director
of any other corporation at the express request of the Company or by reason of
any action alleged to have been taken or omitted in such capacity.
15. SEVERABILITY. If any provision of this Agreement is held to be
invalid, illegal, or unenforceable, that determination will not affect the
enforceability of any other provision of this Agreement, and the remaining
provisions of this Agreement will be valid and enforceable according to their
terms.
16. SUCCESSORS TO THE COMPANY. Except as otherwise provided herein,
this Agreement shall be binding upon and inure to the benefit of the Company and
any successor of the Company, including, without limitation, any corporation
acquiring, directly or indirectly, all or substantially all of the assets of the
Company, whether by merger, consolidation, sale or otherwise (and such successor
shall thereafter be deemed embraced within the term (the "Company" for the
purposes of this Agreement) , but shall not otherwise be assignable by the
Company. The services to be provided by Executive hereunder may not be
delegated.
17. MISCELLANEOUS.
(a) This Agreement constitutes the entire understanding of the
parties with respect to the subject hereof, may be modified
only in writing, is governed by laws of New Jersey, without
giving effect to the principles of conflict of laws thereof,
and will be binding and inure to the benefit of Executive and
Executive's personal representatives, and the Company, its
successors and assigns.
(b) If Executive should die while any amount would still be
payable to him under this Agreement if he had continued to
live, all such amounts, unless otherwise provided herein,
shall be paid in accordance with the terms of this Agreement
to Executive's devisee, legatee or other designee or, if there
be no such designee, to his Estate.
(c) The failure of any of the parties hereto to enforce any
provision hereof on any occasion shall not be deemed to be a
waiver of any provision or succeeding breach of such provision
or any other provision.
(d) Any notice under this Agreement shall be given by registered
or certified mail, return receipt requested, directed to the
address set forth above, unless notice of a new address has
been sent pursuant to the terms of this paragraph.
(e) In furtherance and not in limitation of the foregoing, this
Agreement supersedes any employment agreement, between the
Company and Executive and any such agreement hereby is
terminated and is no longer binding on either party.
18. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be deemed to be duplicate
originals.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first mentioned.
COMPANY:
TOTAL-TEL USA COMMUNICATIONS,INC.
By: /s/ XXXXXXXXX X. XXXXXXXX
------------------------------
Title: Acting Chief Operating Officer
EXECUTIVE:
/s/ A. Xxxx Xxxxx, Jr.
-----------------------------------
A. XXXX XXXXX, JR.
ADDENDUM A
To
EMPLOYMENT AGREEMENT
Between
A. XXXX XXXXX, JR.
And
TOTAL-TEL USA COMMUNICATIONS, INC.
The Company agrees to pay a $25,000 signing bonus to be allocated for relocation
or other expenses not normally reimbursed by the Company or to be paid as income
The Company will grant 288,000 share options with a strike price of $14.25 (US
Dollars). In the event Total Tel shares do not close at or above$14.25 for at
least twenty (20) consecutive trading days during the first calendar year
following the Effective Date, a new option price will be calculated based on the
average closing price of TELU shares for the forty (40) trading days prior to
the one year anniversary of the "effective date".
Options will vest over 3 years on the following schedule:
48,000 shares - 6 calendar months from the "effective date" Employment Agreement
48,000 shares -12 calendar months from the "effective date" Employment Agreement
48,000 shares -18 calendar months from the "effective date" Employment Agreement
48,000 shares -24 calendar months from the "effective date" Employment Agreement
48,000 shares -30 calendar months from the "effective date" Employment Agreement
48,000 shares -36 calendar months from the "effective date" Employment Agreement
EXECUTIVE MUST BE EMPLOYED ON THE SPECIFIED DATE OR OPTIONS WILL NOT VEST
(Example: Effective Date of Employment is May 18, 2000, 1st 48,000 options will
vest on November 17, 2000)
