Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT
(the “Agreement”), is dated this 2nd day of January 2018, by and between Teligent, Inc. having an address
at 00 Xxxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxx Xxxxxx 00000 (the “Company”) and Xxxxxx Xxxxx having an address at
000 Xxxxxxxxx Xxxx, Xxxxxxxxxxxx, Xxx Xxxxxx 00000 (the “Executive”). The Company and the Executive are collectively
referred to hereinafter as the “Parties.”
RECITALS
WHEREAS, the Company
desires to employ the Executive on the terms and subject to the conditions set forth herein, and Executive is willing to accept
such employment of the terms and conditions; and
WHEREAS, by virtue
of such employment, Executive will have access to Proprietary Information of the Company and its subsidiaries (the “Teligent
Companies”); and
WHEREAS, Executive
acknowledges and agrees that the Company (on behalf of itself and the Teligent Companies) has a reasonable, necessary and legitimate
business interest in protecting its own and the Teligent Companies’s Proprietary Information, client accounts, relationships
with prospective clients, Goodwill and ongoing business, and that the terms and conditions set forth in this Agreement are reasonable
and necessary in order to protect these legitimate business interests.
NOW, THEREFORE, in
consideration of the representations, warranties, covenants and agreements contained in this Agreement, and for other good and
valuable consideration, the receipt and adequacy of which are conclusively acknowledged, the Parties, intending to become legally
bound, agree as follows:
AGREEMENT
Specific Definitions.
Capitalized terms not defined elsewhere herein shall have the following meanings ascribed to them:
“Change in Control”
shall mean the occurrence of any of the following events”:
(a) any
“person” as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”) (other than (i) an individual or entity holding securities of the Company as of the date hereof which represent 3%
or more of the outstanding voting power of all the securities on matters to be generally voted upon by the Company’s stockholders,
(ii) the Company, any trustee or other fiduciary holding securities under an employee benefit plan of the Company, (iii) Signet
Healthcare Partners, its affiliates or any of its affiliated funds, or (iv) any corporation owned directly or indirectly by the
stockholders of the Company in substantially the same proportion as their ownership of stock of the Company) is or becomes the
owner, directly or indirectly, of outstanding securities of the Company representing 60% or more of the combined voting power of
the Company’s then outstanding securities;
(b) the
consummation of a merger or consolidation of the Company with any other corporation, other than (i) a merger or consolidation which
would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving entity) more than 40% of the combined voting power of
the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation or (ii)
a merger or consolidation effected to implement a re-capitalization of the Company (or similar transaction) or a reincorporation
of the Company into another jurisdiction; or
(c) a
sale of all or substantially all of the assets of the Company.
“Goodwill”
means the expectation of continued patronage from client accounts and new patronage from prospective clients.
“Person”
means an individual, a partnership, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated
organization, a limited liability company or a governmental entity (or any department, agency, or political subdivision thereof).
“Teligent Business”
means the business provided by any of the Teligent Companies.
“Teligent Companies”
or “Teligent Company” means the Company, its subsidiaries (including the Company), and any entity under the control
(as defined in Rule 12b-2 of the regulations promulgated under the Securities Exchange Act of 1934, as amended, without regard
to whether any party is a “registrant” under such Act) of Teligent, and any of their successors or assigns.
2.1. Executive’s
Position. On the terms and subject to the conditions set forth in this Agreement as of the Effective Date (as defined below),
the Company shall employ Executive to serve as an officer of the Company and Chief Financial Officer of the Company. The Executive
shall report directly to the Chief Executive Officer. Executive shall perform such services in the Company’s offices in Metro
Park and Buena, New Jersey, or such other location or locations as the Executive and the Board shall agree; provided, however,
that Executive will be required to travel from time to time for business purposes.
2.2. Executive’s
Responsibilities. The Executive shall perform all duties customarily attendant to the position and shall perform such services
and duties commensurate with such position as may from time to time be reasonably prescribed by the Board.
2.3. No
Conflicts of Interest. Executive further agrees that throughout the period of his employment hereunder, he will not perform
any activities or services, or accept such other employment which would be inconsistent with this Agreement, the employment relationship
between the Parties, or would interfere with or present a conflict of interest concerning Executive’s employment with the
Company; provided, that the Executive shall be permitted to serve on the boards of directors of such other companies as the Board
shall approve and that Executive may make personal investments and may act as a director and engage in other activities for any
charitable, educational or other nonprofit institution, as long as such investments and activities do not materially interfere
with the performance of Executive’s duties hereunder. Executive agrees to adhere to and comply with any and all business
practices and requirements of ethical conduct set forth in writing from time to time by the Company in its employee manual or similar
publication.
2.4. Term.
This Agreement shall become effective February 5, 2018 (the “Effective Date”) and will govern
Executive’s employment by the Company until that employment ceases (such period of Executive’s employment is
herein referred to as the “Term”).
Executive hereby accepts
such employment and agrees that throughout the Term, Executive will devote his full business time, attention, knowledge, and skills
faithfully, diligently, and to the best of his ability, in furtherance of the business of the Teligent Companies.
4.1. Base
Salary. The Executive shall receive an initial salary of Three Hundred and Twenty-Five Thousand Dollars ($325,000) (the “Base
Salary”) paid in accordance with the Company’s payroll practices, as in effect from time to time. The Base Salary shall
be reviewed on an annual basis by the Company and may be adjusted from time to time by the Company.
4.2. Sign-on
Bonus. The Executive shall receive a one-time cash sign on bonus in the amount of One Hundred Thousand Dollars ($100,000) paid
as soon as feasible after March 31, 2018 in accordance with the Company’s payroll practices. Should the Executive terminate
his employment with the Company pursuant to Section 8.3(d) of this Agreement prior to December 31, 2018, the Executive shall be
required to repay the sign-on bonus set forth in this Section 4.2 within sixty (60) days of the effective date of such termination.
4.3. Benefits.
In addition to such compensation, Executive shall be entitled to the benefits which are afforded generally, from time to time to
similarly situated executive employees of the Teligent Companies. Notwithstanding the foregoing, nothing contained in this Agreement
shall require the Teligent Companies to establish, maintain or continue any of the group benefits plans already in existence or
hereafter adopted for the employees of the Teligent Companies, or restrict the right of the Teligent Companies to amend, modify
or terminate such group benefit plans in a manner which does not discriminate against Executive as compared to other executive
employees of the Teligent Companies.
4.4. Paid
Time Off. Executive shall be entitled to 20 business days of paid time off (consisting of vacation and personal days) and holidays
as are provided in general to similarly situated employees of the Teligent Companies, in accordance with usual practices and procedures.
Without limiting the foregoing, unless otherwise required by law, Executive shall not be entitled to any additional compensation
for any unused paid time off. Paid time off shall stop accruing once Executive has accumulated and not used the number of days
to which he is entitled to in a year.
4.5. Annual
Performance Bonus. The Executive shall be eligible to receive an annual performance bonus (the “Annual Bonus”)
for each calendar year during the Term (each a “Fiscal Year”), which may be payable, in the discretion of the Board
or the Compensation Committee of the Board (the “Committee”), in the form of cash, stock options and/or restricted
equity not later than 75 days after the end of such Fiscal Year; provided, however, that the Executive must be employed by the
Company on December 31 of a Fiscal Year in order to be eligible for an Annual Bonus under this Section 4.4 for such Fiscal Year.
The Executive’s
2018 target Annual Bonus will be calculated from the Executive’s start date on a pro-rata basis, at 40% of Executive’s
Base Salary. The actual amount of the Annual Bonus with respect to the 2018 calendar year, and any subsequent Fiscal Years, will
be determined by the Board or the Committee, in their discretion, with reference to the Executive’s and the Employer’s
fulfillment of performance goals established by the Committee with respect to the applicable Fiscal Year. The amount of the actual
target percentage applied may range annually from 30% to 60% of Executive’s Base Salary.
4.6. Grant
of Equity Awards.
(a) Equity
Awards. As soon as practicable following the Effective Date of this Agreement and subject to the approval of the Board, Executive
will receive the following equity grants pursuant to the Company’s 2016 Equity Incentive Plan (or as amended): (i) 30,000
(thirty thousand) Restricted Stock Units; and (ii) 125,000 (one hundred and twenty five thousand) stock options, strike price TBD
on the first day of employment and equal to the fair market value of the Company’s common stock subject to the options on
that date in accordance with the terms of the 2016 Equity Incentive Plan. In addition, the Executive will be eligible for equity
refresh awards at the Board’s discretion.
(b) Vesting.
Except as otherwise set forth in Section 8 hereof, the shares subject to the Restricted Stock Unit Award and stock option shall
become fully vested over a period of three years as follows: (a) one-third of the shares subject to such awards shall vest on the
first anniversary of the Effective Date, (b) one-third of the shares subject to such awards shall vest on the second anniversary
of the Effective Date and (iii) one-third of the shares subject to such awards shall vest on the third anniversary of the Effective
Date.
(c) Accelerated
Vesting. Notwithstanding the foregoing, immediately prior to a Change in Control (as defined in Section 1 above), any Restricted
Stock Units and any stock options that then remain unvested will become vested, provided the Executive remains in continuous service
with the Company through the consummation of that Change in Control.
(d) Plan
Terms Will Govern. Notwithstanding anything else in this Agreement, the Parties agree that in the event the terms of this Agreement
are inconsistent with the terms of the 2016 Equity Incentive Plan, the Plan’s terms will govern.
The Company shall reimburse
Executive, in accordance with the Company’s policy on expense reimbursements, for all expenses reasonably and properly incurred
by Executive in connection with the performance of Executive’s duties hereunder and the conduct of the business of the Company,
including business-related travel expenses, upon the submission to the Company (or its designee) of appropriate vouchers therefor.
6.1. Confidentiality.
The Executive recognizes and acknowledges that the Proprietary Information (as defined below) is a valuable, special and unique
asset of the business of the Company and its affiliates. As a result, both during the Term and thereafter, the Executive will not,
without the prior written consent of the Company, for any reason divulge to any third-party or use for his own benefit, or for
any purpose other than the exclusive benefit of the Company and its affiliates, any Proprietary Information. Notwithstanding the
foregoing, if the Executive is compelled to disclose Proprietary Information by court order or other legal or regulatory process,
to the extent permitted by applicable law, he shall promptly so notify the Company so that it may seek a protective order or other
assurance that confidential treatment shall be afforded to such Proprietary Information, and the Executive shall reasonably cooperate
with the Company and its affiliates in connection therewith. If the Executive is so obligated by court order or other legal process
to disclose Proprietary Information, he will disclose only the minimum amount of such Proprietary Information as is necessary for
the Executive to comply with such court order or other legal process.
6.2. Property
of the Company.
(a) Proprietary
Information. All right, title and interest in and to Proprietary Information will be and remain the sole and exclusive property
of the Company and its affiliates. The Executive will not remove from the Company’s or its affiliates, offices or premises
any documents, records, notebooks, files, correspondence, reports, memoranda or similar materials of or containing Proprietary
Information, or other materials or property of any kind belonging to the Company or its affiliates unless necessary or appropriate
in the performance of his duties to the Company and its affiliates. If the Executive removes such materials or property in the
performance of his duties, he will return such materials or property promptly after the removal has served its purpose. The Executive
will not make, retain, remove and/or distribute any copies of any such materials or property, or divulge to any third person the
nature of and/or contents of such materials or property, except to the extent necessary to satisfy contractual obligations of the
Company or its affiliates or to perform his duties on behalf of the Company and its affiliates. Upon termination of the Executive’s
employment with the Company, he will leave with the Company and its affiliates or promptly return to the Company and its affiliates
all originals and copies of such materials or property then in his possession.
(b) Intellectual
Property. The Executive agrees that all the Intellectual Property (as defined below) will be considered “works made for
hire” as that term is defined in Section 101 of the Copyright Act (17 U.S.C. § 101) and that all right, title and interest
in such Intellectual Property will be the sole and exclusive property of the Company and its affiliates. To the extent that any
of the Intellectual Property may not by law be considered a work made for hire, or the extent that, notwithstanding the foregoing,
the Executive retains any interest in the Intellectual Property, the Executive hereby irrevocably assigns and transfers to the
Company and its affiliates any and all right, title or interest that the Executive may now or in the future have in the Intellectual
Property under patent, copyright, trade secret, trademark or other law, in perpetuity or for the longest period otherwise permitted
by law, without the necessity of further consideration. The Company and its affiliates will be entitled to obtain and hold in its
own name all copyrights, patents, trade secrets, trademarks and other similar registrations with respect to such Intellectual Property.
The Executive further agrees to execute any and all documents and to provide any further cooperation or assistance reasonably required
by the Company, at the Company’s expense, to perfect, maintain or otherwise protect its rights in the Intellectual Property.
If the Company or its affiliates, as applicable, are unable after reasonable efforts to secure the Executive’s signature,
cooperation or assistance in accordance with the preceding sentence whether because of the Executive’s incapacity or any
other reason whatsoever, the Executive hereby designates and appoints the Company, the appropriate affiliate, or their respective
designee as the Executive’s agent and attorney-in-fact, to act on his behalf, to execute and file documents and to do all
other lawfully permitted acts necessary or desirable to perfect, maintain or otherwise protect the Company’s or its affiliates’
rights in the Intellectual Property. The Executive acknowledges and agrees that such appointment is coupled with an interest and
is therefore irrevocable.
For purposes of this
Agreement, “Intellectual Property” means (a) all inventions (whether patentable or unpatentable and whether or not
reduced to practice), all improvements thereto, and all patents and patent applications claiming such inventions, (b) all trademarks,
service marks, trade dress, logos, trade names, fictitious names, brand names, brand marks, and corporate names, together with
all translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith, and all applications,
registrations, and renewals in connection therewith, (c) all copyrightable works, all copyrights, and all applications, registrations,
and renewals in connection therewith, (d) all mask works and all applications, registrations, and renewals in connection therewith,
(e) all trade secrets (including research and development, know-how, formulas, compositions, manufacturing and production processes
and techniques, methodologies, technical data, designs, drawings and specifications), (f) all computer software (including data,
source and object codes, and related documentation), (g) all other proprietary rights, (h) all copies and tangible embodiments
thereof (in whatever form or medium), or (i) similar intangible personal property which have been or are developed or created in
whole or in part by the Executive (1) at any time and at any place while Executive is employed by Company and which, in the case
of any or all of the foregoing, are related to and used in connection with the business of the Company or its affiliates, or (2)
as a result of tasks assigned to the Executive by the Company or its affiliates.
For purposes of this
Agreement, “Proprietary Information” means any and all proprietary information developed or acquired by the Company
or any of its subsidiaries or affiliates that has not been specifically authorized to be disclosed. Such Proprietary Information
shall include, but shall not be limited to, the following items and information relating to the following items: (a) all intellectual
property and confidential or proprietary knowledge, information or rights of the Company (including, without limitation, the Intellectual
Property, trade secrets, books and records, know-how, inventions, discoveries, processes and systems, as well as any data and records
pertaining thereto), (b) computer codes and instructions, processing systems and techniques, inputs and outputs (regardless of
the media on which stored or located) and hardware and software configurations, designs, architecture and interfaces, (c) business
research, studies, procedures and costs, (d) financial data, (e) distribution methods, (f) marketing data, methods, plans and efforts,
(g) the identities of actual and prospective customers and suppliers, (h) the terms of contracts and agreements with, the needs
and requirements of, and the Company’s or its affiliates’ course of dealing with, actual or prospective customers or
suppliers, (i) personnel information (j) customer and vendor credit information and (k) information received from third parties
subject to obligations of non-disclosure or non-use. Failure by the Company or its affiliates to xxxx any of the Proprietary Information
as confidential or proprietary shall not affect its status as Proprietary Information.
7.1. Non-Solicitation.
(a) Except
in the normal course of business on behalf of any Teligent Company, Executive agrees that during the Term he will not, directly
or indirectly, (i) solicit, sell, provide services to, consult for, or accept any request to provide, or induce the termination,
cancellation or non-renewal of any Teligent Business from or by any person, corporation, firm or other entity which was a client
of a Teligent Company or which was contacted by a Teligent Company as a prospective client at any time, or (ii) solicit, offer,
negotiate or otherwise seek to acquire any interest in any prospective acquisition of a Teligent Company, which was a prospective
acquisition of a Teligent Company at any time.
(b) Except
in the normal course of business on behalf of any Teligent Company, Executive agrees that after the Term he will not, directly
or indirectly, (i) solicit, sell, provide services to, consult for, or accept any required to provide, or induce the termination,
cancellation or non-renewal of, any Teligent Business from or by any person, corporation, firm or other entity which was a client
of a Teligent Company or which was contacted by a Teligent Company for the purposes of becoming a client at any time within twelve
months prior to the end of the Term, or (ii) solicit, offer, negotiate or otherwise seek to acquire any interest in any entity
of business which was contacted by a Teligent Company as a prospective acquisition within twelve (12) months prior to the end of
the Term. The restrictions contained in this Section 7.1(b) shall apply for twelve (12) months following the end of the Term.
7.2. No
Hiring. Executive further agrees that he will not, directly or indirectly, solicit the employment, consulting or other services
of, or hire, any other employee of any Teligent Company or otherwise induce any of such employees to leave such Teligent Company’s
employment or to breach an employment or independent contractor agreement therewith. The restrictions contained in this Section
7.2 shall apply throughout the Term hereof and thereafter until twenty-four (24) months following the date on which Executive is
no longer employed by any Teligent Company.
7.3. Miscellaneous.
Without limiting the provision of Section 18, in the event of any assignment by the Company permitted under such section, the restrictive
periods contained in this Section 7 shall be determined by reference to the termination of Executive’s employment with any
permitted assignee of the Company.
Either party may terminate
the Executive’s employment at any time for any reason, provided that the Executive shall provide thirty (30) days advance
written notice of any such termination. Upon cessation of his employment with the Company, the Executive will be entitled only
to such compensation and benefits as described in this Section 8.
8.1. Termination
by the Company Without Cause. Company shall have the right to terminate Executive’s employment hereunder “without
cause” by giving Executive written notice to that effect. Any such termination of employment shall be effective on the date
specified in such notice. In the event of such termination, the Company shall (i) pay Executive his unpaid Base Salary through
the effective date of termination and any business expenses remaining unpaid on the effective date of the termination for which
Executive is entitled to be reimbursed under Section 5 of this Agreement; (ii) pay Executive an amount per month equal to one-twelfth
of his then adjusted Base Salary for the period commencing on the date following the date of termination and ending on the date
which is six (6) months following the effective date of termination; (iii) pay Executive an amount equal to a pro-rata portion
of the Annual Bonus that would otherwise have been payable to Executive for the Fiscal Year in which the termination occurs, determined
in the same manner and payable at the same time as such Annual Bonus would otherwise have been payable had Executive’s employment
not terminated, with such pro-rata portion to be determined based on the number of months (and any fraction thereof) Executive
is employed during the Fiscal Year in which termination occurs, relative to 12 months; and (iv) to the extent then unvested, cause
to become vested a pro-rata portion of the awards granted to the Executive, equal to the quotient of the number of full months
that have transpired between the Effective Date and date of termination, divided by 36, provided, however, that without limiting
any other remedy available hereunder, all obligations described in this Section 8.1 shall immediately terminate upon a judge’s
determination that Executive has breached the provisions of Section 6 or 7 hereof.
8.2. Termination
by the Company with Cause. Company shall have the right to terminate Executive’s employment hereunder “with
Cause” by giving Executive written notice to that effect. For the purpose of this Agreement, “Cause” shall
mean (i) commission of a willful and material act of dishonesty in the course of Executive’s duties hereunder, (ii)
conviction by a court of competent jurisdiction of a crime constituting a felony or conviction in respect of any act
involving fraud, dishonesty or moral turpitude, (iii) Executive’s performance under the influence of controlled
substances, or continued habitual intoxication, during working hours, after the Company shall have provided written notice to
Executive and given Executive 30 days within which to commence rehabilitation with respect thereto, and Executive shall have
failed to commence such rehabilitation or continued to perform under the influence after such rehabilitation, (iv) frequent
or extended, and unjustifiable (not as a result of incapacity or disability) absenteeism which shall not have been cured
within 30 days after the Company shall have advised Executive in writing of its intention to terminate Executive’s
employment in accordance with the provisions of this Section 8.2, in the event such condition shall not have been cured, (v)
Executive’s personal, willful and continuing misconduct or refusal to perform duties and responsibilities described in
Section 2 above, or to carry out directives of the Board, which, if capable of being cured, shall not have been cured within
60 days after the Company shall have advised Executive in writing of its intention to terminate Executive’s employment
in accordance with the provision of this Section 8.2 or (vi) material non-compliance with the terms of this Agreement,
including but not limited to any breach of Section 6 or Section 7 of this Agreement.
8.3. With
Cause and Other Terminations. If the Executive’s employment with the Company ceases for any reason other than as described
in Section 8.1 above (including but not limited to termination (a) by the Company for Cause, (b) as a result of the Executive’s
death, (c) as a result of the Executive’s Disability, or (d) as a result of resignation by the Executive), then the Company’s
obligation to the Executive will be limited solely to the payment of unpaid Base Salary through the date of such termination. All
compensation and benefits will cease at the time of such termination and, except as otherwise required by COBRA, the Company will
have no further liability or obligation by reason of such termination. The foregoing will not be construed to limit the Executive’s
right to payment or reimbursement for claims incurred prior to the date of such termination under any insurance contract funding
an employee benefit plan, policy or arrangement of the Company in accordance with the terms of such insurance contract.
For the purpose of
this Agreement, a “Disability” shall be deemed to have occurred (i) when Executive has become eligible for disability
benefits under the Company’s long-term group disability policy, if any, or, if no policy is then effect, (ii) the Executive
has been incapacitated by bodily injury, illness or disease so as to be prevented from engaging in the performance of the Executive’s
duties when such incapacity shall have existed for either (A) one continuous period of six months or (B) a total of seven months
out of any twelve consecutive months. (The Company acknowledges its obligations to provide reasonable accommodation to the extent
required by applicable law.)
8.4. Miscellaneous
Termination Provisions. Executive, upon termination or expiration of employment for any reason, hereby irrevocably promises
to:
(a) Return
all property of the Teligent Companies in his possession or within his custody and control wherever located immediately upon such
termination.
(b) Participate
in an exit interview with a designated person or persons of Company if requested by the Company.
(c) Subject
to obligations under applicable laws and regulations, not publicly make any statements or comments that disparage the reputation
of any of the Teligent Companies or their senior officers or directors.
8.5. Release.
Notwithstanding any other provision in this Agreement, the payments and benefits described in Section 8.1 are conditioned on Executive’s
execution and delivery to the Company, within 60 days following his cessation of employment, of a general release of claims against
the Company and its affiliates in such form as the Company may reasonably require in a manner consistent with the requirements
of the Older Workers Benefit Protection Act (the “Release”). The salary continuation benefits described in Section
8.1 will begin to be paid or provided as soon as the Release becomes irrevocable; provided, however, that if the 60-day period
described in the previous sentence begins in one taxable year and ends in a second taxable year and if the cash payments and benefits
described in Section 8.1 exceed the limitations applicable to a “separation pay plan” under Treas. Reg. § 1.409A-1(b)(9)(iii),
such payments and other rights shall not commence until the second taxable year.
8.6. Section
409A. All payments to be made under Section 8.1 of this Agreement may only be made upon a “Separation from Service”
within the meaning of Treas. Reg. § 1.409A-1(h) (or any successor provision). If the termination giving rise to the payments
described in Section 8.1 is not a Separation from Service, then the amounts otherwise payable pursuant to that section will instead
be deferred without interest and will not be paid until Executive experiences a Separation from Service. To the maximum extent
permitted under Section 409A of the Code and its corresponding regulations, the cash severance benefits payable under this Agreement
are intended to meet the requirements of the short-term deferral exemption under Section 409A of the Internal Revenue Code and
the “separation pay exception” under Treas. Reg. § 1.409A-1(b)(9)(iii). For purposes of the application of Treas.
Reg. § 1.409A-1(b)(4) (or any successor provision), each payment in a series of payments will be deemed a separate payment.
Executive acknowledges
that the services to be rendered by him are of a special, unique and extraordinary character and that it would be extremely difficult
or impracticable to replace such services, that the material provisions of this Agreement are of crucial importance to the Company
and that any damage caused by the breach of Sections 6 or 7 of this Agreement would result in irreparable harm to the business
of the Company for which money damages alone would not be adequate compensation. Accordingly, Executive agrees that if he violates
Sections 6 or 7 of this Agreement, the Company shall, in addition to any other rights or remedies of the Company available at law,
be entitled, without having to post a bond, to equitable relief in any court of competent jurisdiction, including, without limitation,
temporary injunction and permanent injunction.
Each payment to Executive
under this Agreement shall be reduced by any amounts required to be withheld by the Company from time to time under applicable
laws and regulations then in effect.
11.1. General.
Except as otherwise disclosed and covered by Section 18 herein, Executive represents and warrants to the Company that the execution
of this Agreement and the performance of his duties as contemplated hereunder do not conflict with any other agreement, law, rule,
regulation, or court order by which he is bound.
11.2. No
Impairment. Executive represents and warrants that he is not subject to any agreement or contract that would preclude or impair,
in any way, his ability to carry out his duties under this Agreement for the Company.
11.3. No
Confidential Information. Executive has not removed from any prior employer any confidential information.
11.4. No
Restrictive Agreements. Executive represents and warrants that, Executive has not heretofore entered into, has not been and
is currently not subject to the provisions of, any employment contract, sales and purchase agreement or other agreement (whether
oral or written) of any nature whatsoever with any other organization, individual or business entity, which prevents or restricts
Executive from competing with, or soliciting the clients, customers, business or employees (including, without limitation for the
purposes of hiring such employees) of, such other organization, individual or business entity or any other entity for any period
of time or within any geographical area, whether heretofore expired or not (“Pre-existing Agreements”), other than
such contracts or agreements as Executive has heretofore disclosed to Company in writing.
Ownership of Records.
Executive agrees that all papers, documents, records, business accounts, generated by Executive during the conduct of such business
or given to Executive during and in the course of his employment with Company are the exclusive property of the Company and shall
remain with the Company upon Executive’s termination.
No agreements or representations,
oral or otherwise, express or implied, have been made by either Party, with respect to Executive’s employment by any Teligent
Company, that are not set forth expressly in this Employment Agreement. This Agreement supersedes and cancels any other prior agreement
relating to Executive’s employment by any Teligent Company, except that Executive shall remain liable for any breaches of
any provisions relating to restrictive covenants (including non-solicitation, non-compete, non-hire) and confidentiality contained
in any such prior agreements. No amendment or modification of this Agreement shall be valid or binding unless made in writing and
signed by the Party against whom enforcement thereof is sought.
All notices, demands
and requests of any kind which either Party may be required or may desire to serve upon the other Party hereto in connection with
this Agreement shall be delivered only by courier or other means of personal service, which provides written verification of receipt,
or by registered or certified mail return receipt requested (each, a “Notice”). Any such Notice delivered by registered
or certified mail shall be deposited in the United States mail with postage thereon fully prepaid or if by courier then deposited
with the courier. All Notices shall be addressed to the Parties to be served as follows:
(a) If
to the Company, at the Company’s address set forth on the first page hereof.
(b) If
to Executive, at Executive’s address set forth on the first page hereof.
Either of the Parties
hereto may at any time and from time to time change the address to which notice shall be sent hereunder by notice to the other
Party given under this Section. All such notices, requests, demands, and other communications shall be effective when received
at the respective address set forth above or as then in effect pursuant to any such change.
No waiver of any default
or breach of this Agreement shall be deemed a continuing waiver or a waiver of any other breach or default.
THIS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW.
The parties further
agree that except as provided in Section 9, all disputes concerning or pertaining to the interpretation or application of this
Agreement shall be brought either in the Superior Court of New Jersey, Middlesex County or in the United States District Court
for the District of New Jersey.
The provisions of this
Agreement are intended to be interpreted in a manner which makes them valid, legal, and enforceable. In the event any provision
of this Agreement is found to be partially or wholly invalid, illegal or unenforceable, such provision shall be modified or restricted
to the extent and in the manner necessary to render it valid, legal, and enforceable, it is expressly understood and agreed between
Executive and the Company that such modification or restriction may be accomplished by mutual accord between the Parties or, alternatively,
by disposition of a court of law. If such provision cannot under any circumstances be so modified or restricted, it shall be excised
from this Agreement without affecting the validity, legality or enforceability of any of the remaining provisions.
Executive has made
the Company aware of the potential for certain non-competition restrictions to be asserted against him in the event he accepts
employment with the Company. Company agrees to provide legal representation for Executive in the event such assertions are made
and to indemnify Executive for the cost of such representation.
Executive may not assign
any rights (other than the right to receive income hereunder) under this Agreement without the prior written consent of the Company.
This Agreement may be assigned without the consent of Executive, and the provisions of this Agreement shall be binding upon and
shall inure to the benefit of the assignee hereof.
For the avoidance of
doubt, the provisions of Sections 6 and 7, and any other ongoing duties of the parties hereto, shall each survive termination or
expiration of this Agreement.
This Agreement may
be executed in one or more counterparts and by different parties hereto in separate counterparts, each of which when so executed
and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument.
Signature pages may be detached for multiple separate counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document.
The headings of the
several sections and subsections of this Agreement are inserted for convenience only and shall not in any way affect the meaning
or construction of any provision of this Agreement.
All Parties agree that
this Agreement shall be construed in such a manner so as not to favor one party or the other regardless of which party has drafted
this Agreement.
IN WITNESS WHEREOF,
the Parties hereto have caused this Agreement to be duly executed as of the day and year first above written.
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TELIGENT, INC. |
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By: |
/s/ Xxxxx Xxxxxxxx-Xxxxxxx |
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Name: |
Xxxxx Xxxxxxxx-Xxxxxxx |
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Title: |
President and CEO |
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/s/ Xxxxxx Xxxxx |
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Xxxxxx Xxxxx |
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