EMPLOYMENT AGREEMENT
EXHIBIT
10.1
This
EMPLOYMENT AGREEMENT (the “Agreement”) dated September 25, 2009 and made as of
October 1, 2009 (the “Effective Date”), by and between Arbinet Corporation a
Delaware corporation with its headquarters located in New Brunswick, New Jersey
(the “Employer”), and Xxxx
Xxxxxx Xxxxxx (“Xxxxxx”). In consideration of the mutual
covenants contained in this Agreement, the Employer and Xxxxxx agree as
follows:
1. Employment. The
Employer agrees to employ Xxxxxx and Xxxxxx agrees to be employed by the
Employer on the terms and conditions set forth in this Agreement.
2. Capacity. Subject
to the terms and conditions of this Agreement, Xxxxxx shall serve the Employer
as Chief Financial Officer and shall have the duties and authority customary for
such position. Xxxxxx shall report directly to the Chief Executive
Officer (“CEO”) of the Employer and shall serve the Employer in such additional
offices incidental to such position as Xxxxxx may be requested to serve by the
CEO or Board of Directors of Employer (the “Board of Directors”). In
such capacity or capacities, Xxxxxx shall perform such services and duties in
connection with the business, affairs and operations of the Employer as may be
assigned or delegated to Xxxxxx from time to time by or under the authority of
the CEO or Board of Directors.
3. Relocation. Xxxxxx
understands and agrees that this position is full-time and based at the
Employer’s offices in Herndon, Virginia. Xxxxxx agrees to perform his
duties from, and be present at, any of the Employer’s offices during the regular
workweek, excluding Employer-wide holidays and business travel as necessitated
in connection with Xxxxxx’x responsibilities hereunder.
4. Compensation and
Benefits. The regular compensation and benefits payable to
Xxxxxx under this Agreement shall be as follows:
(a) Salary. For
all services rendered by Xxxxxx under this Agreement, the Employer shall pay
Xxxxxx a salary (the “Salary”) at the annual rate of Two Hundred Sixty Thousand
Dollars ($260,000), subject to increase from time to time in the discretion of
the Board of Directors or the Compensation Committee of the Board of Directors
(the “Compensation Committee”). The Salary shall be payable in
periodic installments in accordance with the Employer’s usual practice for its
senior management employees. Employer will not involuntarily reduce Xxxxxx’x
Salary below Two Hundred Sixty Thousand Dollars except for across-the-board
reductions similarly affecting all or substantially all senior management
employees.
(b) Bonus.
(i) For the Fiscal Year
2009, Xxxxxx shall be entitled a bonus of up to $32,500 based on achievement of
the Performance Metrics and Targets as established by the Compensation
Committee; and
(ii) Beginning with the
fiscal year ending December 31, 2010, Xxxxxx shall be entitled to participate in
an annual incentive program established by the Board of Directors or the
Compensation Committee with such terms as may be established by the Board of
Directors or the Compensation Committee and mutually and reasonably agreed by
Xxxxxx; provided, that
Xxxxxx will have the opportunity to earn up to Fifty Percent (50%) (the “Target
Percentage”) of his Salary then in effect in bonus compensation annually; provided, further, that
Xxxxxx will have the opportunity to earn more than or less than Target
Percentage in bonus compensation based upon underachievement or overachievement
of either the Employer’s or Xxxxxx’x performance objectives or
both.
(c) Regular
Benefits. Xxxxxx shall also be entitled to participate in any
qualified retirement plans, deferred compensation plans, supplemental retirement
plans, stock option and incentive plans, stock purchase plans, medical insurance
plans, life insurance plans, disability income plans, retirement plans, vacation
plans, expense reimbursement plans and other benefit plans which the Employer
may from time to time have in effect for all or most of its senior level
employees. Such participation shall be subject to the terms of the
applicable plan documents, generally applicable policies of the Employer,
applicable law and the discretion of the Board of Directors, the Compensation
Committee or any administrative or other committee provided for in or
contemplated by any such plan. Nothing contained in this Agreement
shall be construed to create any obligation on the part of the Employer to
establish any such plan or to maintain the effectiveness of any such plan that
may be in effect from time to time.
(d) Equity
Grants: Xxxxxx shall be eligible to participate in the
Employer’s 2004 Stock Option Plan, as amended (the “2004
Plan”). Under the 2004 Plan and subject to the approval of the Board
of Directors or the Compensation Committee, the Employer shall initially xxxxx
Xxxxxx an option to purchase 250,000 shares of the Employer’s common stock (the
“Initial Grant”). In the event of a Change of Control (as defined
below), Xxxxxx shall become vested in the Initial Grant in accordance with the
terms of the Equity Agreement (as defined below). Concurrent with the
execution of this Agreement, the Employer and Xxxxxx shall enter into a
Non-Qualified Stock Option Agreement which is attached hereto as Exhibit A (the
“Equity Agreement”).
(e) Additional
Benefits. The Employer shall provide the following additional
benefits to Xxxxxx:
(i) Vacation.
(A) For
fiscal year 2009, Xxxxxx shall be entitled, as of the date hereof, to 6.75
working days’ Paid Time Off to be taken at such time or times as may be agreed
with the President and Chief Executive Officer. The Employer’s time
off year runs from January 1st to December 31st. Beginning in fiscal
year 2010, Xxxxxx will be eligible for 27 days paid time off (“PTO”), or its
equivalent.
(B) Upon
termination of his employment for whatever reason he shall be entitled to salary
in lieu of any accrued vacation entitlement that has not been taken or be
required to repay to the Employer any salary received in respect of vacation
taken in excess of his proportionate vacation entitlement. For the
purposes of calculating such payment in lieu or such repayment, a PTO day shall
be taken to be Xxxxxx’x Salary divided by 260.
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(C) It
is agreed that Xxxxxx shall be entitled to, at his option, take either a working
day PTO or an unpaid working day to attend board of directors meetings as
authorized under Section 5(c).
(ii) Reimbursement of Business
Expenses. The Employer shall reimburse Xxxxxx for all
reasonable expenses incurred by him in performing services during the term of
this Agreement, in accordance with the Employer’s policies and procedures for
its senior management employees, as in effect from time to time.
(iii) Commuting, Living and
Relocation Expenses.
(A) Until
the earlier of September 1, 2010 or Xxxxxx’x relocation to the Herndon, Virginia
area, Xxxxxx shall be entitled to reimbursement by the Employer for up to Five
Thousand Five Hundred Dollars ($5,500) per month of Xxxxxx’x reasonable and
documented out-of-pocket expenses incurred by him for living expenses in the
Herndon, Virginia area and travel to and from Xxxxxx’x residence in
Connecticut.
(B) Xxxxxx
shall be entitled to reimbursement for up to Eighty Five Thousand Dollars
($85,000) of Xxxxxx’x documented relocation and moving expenses related to his
relocation to the Herndon, Virginia area (the “Relocation
Expenses”). The reimbursement shall be “grossed up” once for taxes
and shall be in addition to reasonable business expenses otherwise reimbursable
in accordance with the Employer’s policies and procedures for its senior
management employees.
(iv) Indemnification. From
and after the date hereof, Xxxxxx will be included under the Employer’s
directors and officers liability insurance policy, with the same coverage as is
provided to other directors or officers of the Employer in respect of their
service to the Employer, and such coverage will continue without interruption
for so long as the Employer, or its successors and assigns, maintains such
coverage for its officers and directors.
(v) Legal
Fees. The Employer shall reimburse Xxxxxx for all reasonable
and documented attorney and professional fees incurred by Xxxxxx in connection
with the negotiation and review of the terms of employment and this Agreement,
not to exceed $2,500.
(f) Exclusivity of Salary and
Benefits. Xxxxxx shall not be entitled to any payments or
benefits other than those provided under this Agreement.
5. Extent of
Service. During Xxxxxx’x employment under this Agreement,
Xxxxxx shall, subject to the direction and supervision of the CEO, devote
Xxxxxx’x full business time, best efforts and business judgment, skill and
knowledge to the advancement of the Employer’s interests and to the discharge of
Xxxxxx’x duties and responsibilities under this Agreement; provided that until November
1, 2009, Xxxxxx shall be permitted to devote no more than ten (10) hours per
week performing duties for his former employer. Xxxxxx shall not
engage in any other business activity, except as may be approved by the CEO;
provided that nothing
in this Agreement shall be construed as preventing Xxxxxx from:
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(a) investing
Xxxxxx’x assets in any company or other entity in a manner not prohibited by
Section 9(d) and in such form or manner as shall not require any material
activities on Xxxxxx’x part in connection with the operations or affairs of the
companies or other entities in which such investments are made;
(b) engaging
in religious, charitable or other community or non-profit activities that do not
impair Xxxxxx’x ability to fulfill Xxxxxx’x duties and responsibilities under
this Agreement;
(c) serving
as a member of the board of directors of one public and one private company,
including the companies listed on Exhibit B attached
hereto; provided that
at no time during the term of this Agreement may Xxxxxx serve as a member of the
board of directors for more than one (1) private company and one (1) other
public company, excluding the Employer; or
(d) Maintaining
his ownership interest in his Connecticut based entities as set forth on Exhibit C so long as
such ownership does not interfere with performance of his duties under this
Agreement, including devoting his full business time to the advancement of the
Employer’s interests.
6. Termination. Xxxxxx’x
employment under this Agreement shall terminate under the following
circumstances set forth in this Section 6.
(a) Termination by the Employer
for Cause. Xxxxxx’x employment under this Agreement may be
terminated by the Employer for Cause (as defined below) without further
liability on the part of the Employer effective immediately upon a vote of the
Board of Directors and written notice to Xxxxxx. Only the following
shall constitute “Cause” for such termination:
(i) Xxxxxx’x
willful misconduct in the performance of his duties to the Employer, or Xxxxxx’x
willful failure to implement any lawful policy of the Employer which either is
not cured within ten (10) days after written notice is given to Xxxxxx by the
Employer describing misconduct or failure;
(ii) Xxxxxx’x
conviction of or plea of guilty or any plea other than “not guilty” to a
felony;
(iii) the
willful violation by Xxxxxx of any material provision of this Agreement, which
either is not cured within ten (10) days after written notice is given to Xxxxxx
by the Employer describing the willful violation or constitutes a habitual
breach of which Xxxxxx has been previously notified by the Company;
or
(iv) Xxxxxx’x
dishonesty, misappropriation or fraud with regard to the property of the
Employer or its affiliates.
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(b) Termination by Xxxxxx for
Good Reason. Upon thirty (30) days written notice from Xxxxxx,
Xxxxxx’x employment under this Agreement may be terminated by Xxxxxx for Good
Reason (as defined below). For purposes of this Agreement, “Good
Reason” shall mean that that Xxxxxx has complied with the Good Reason Process
(as defined below) following the occurrence of any of the following
events:
(i)
a substantial diminution or other substantive adverse change, not
consented to by Xxxxxx, in the nature or scope of Xxxxxx’x responsibilities,
authorities, powers, functions or duties;
(ii)
an involuntary material reduction in Xxxxxx’x base
salary except for across-the-board reductions similarly affecting all or
substantially all senior management employees;
(iii) a
breach by the Employer of any of its other material obligations under this
Agreement; or
(iv) a
material change in the geographic location at which Xxxxxx must perform his
services.
“Good
Reason Process” shall mean that: (A) Xxxxxx reasonably determines in good faith
that a “Good Reason” event has occurred; (B) Xxxxxx notifies the Employer in
writing of the occurrence of the Good Reason event within 90 days of the
occurrence of such event; (C) Xxxxxx cooperates in good faith with the
Employer’s efforts, for a period not less than 30 days following such notice, to
modify Xxxxxx’x employment situation in a manner acceptable to Xxxxxx and the
Employer; and (D) notwithstanding such efforts, one or more of the Good Reason
events continues to exist and has not been modified in a manner acceptable to
Xxxxxx. If the Employer cures the Good Reason event in a manner
acceptable to Xxxxxx during the 30 day period, such Good Reason event shall be
deemed not to have occurred.
(c) Termination by the Employer
without Cause. Subject to the payment of Termination Benefits
(as defined below), upon thirty (30) days written notice from the Employer,
Xxxxxx’x employment under this Agreement may be terminated by the Employer
without Cause.
(d) Death. Xxxxxx’x
employment with the Employer shall terminate upon his death.
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(e) Disability. If
Xxxxxx shall be disabled so as to be unable to perform the essential functions
of Xxxxxx’x then existing position or positions under this Agreement with or
without reasonable accommodation for a period of 30 nonconsecutive days or more
within any six (6) month period, the Board of Directors may, upon ten (10) days
prior written notice, terminate Xxxxxx’x employment
hereunder. Notwithstanding any such termination, Xxxxxx shall
continue to receive Xxxxxx’x full Salary (less any disability pay or sick pay
benefits to which Xxxxxx may be entitled under the Employer’s policies) and
benefits under Section 4 of this Agreement (except to the extent that Xxxxxx may
be ineligible for one or more such benefits under applicable plan terms) for a
period of time equal to six (6) months, and Xxxxxx’x employment may be
terminated by the Employer at any time thereafter. If any question
shall arise as to whether during any period Xxxxxx is disabled so as to be
unable to perform the essential functions of Xxxxxx’x then existing position or
positions with or without reasonable accommodation, Xxxxxx may, and at the
request of the Employer shall, submit to the Employer a certification in
reasonable detail by a physician selected by the Employer to whom Xxxxxx or
Xxxxxx’x guardian has no reasonable objection as to whether Xxxxxx is so
disabled or how long such disability is expected to continue, and such
certification shall for the purposes of this Agreement be conclusive of the
issue. Xxxxxx shall cooperate with any reasonable request of the
physician in connection with such certification. If such question
shall arise and Xxxxxx shall fail to submit such certification, the Employer’s
determination of such issue shall be binding on Xxxxxx. Nothing in
this Section 6(e) shall be construed to waive Xxxxxx’x rights, if any, under
existing law including, without limitation, the Family and Medical Leave Act of
1993, 29 U.S.C. §2601 et
seq. and the Americans with Xxxxxxxxxxxx Xxx, 00 X.X.X. §00000 et seq.
7. Compensation Upon
Termination.
(a) Termination
Generally. If Xxxxxx’x employment with the Employer is
terminated for any reason during the term of this Agreement, the Employer shall
pay or provide to Xxxxxx (or to his authorized representative or estate) any
earned but unpaid Salary, unpaid expense reimbursements, accrued but unused
vacation and any vested benefits Xxxxxx may have under any employee benefit plan
of the Employer (the “Accrued Benefit”).
(b) Termination by the Employer
Without Cause Before a Change of Control. In the event of
termination of Xxxxxx’x employment with the Employer before a Change of Control
pursuant to Section 6(c) above and subject to Xxxxxx’x agreement to a release of
any and all legal claims in a form reasonably satisfactory to the Employer and
Xxxxxx (excluding any indemnification or other obligations hereunder which
survive termination of this Agreement), the Employer shall provide to Xxxxxx the
following termination benefits (“Termination Benefits”):
A lump
sum payment equal to twelve (12) months of Xxxxxx’x Salary at the rate then in
effect pursuant to Section 4(a), payable within fourteen (14) days of the
termination date, plus continuation of group health plan benefits to the extent
authorized by and consistent with 29 U.S.C. § 1161 et seq. (commonly known as
“COBRA”) for twelve (12) months or until the Executive commences employment, if
earlier, subject to payment of premiums by the Executive at the active
employees’ rate.
The
Employer’s liability for severance pursuant to Section 7(b) shall be reduced by
the amount of any severance pay paid to Xxxxxx pursuant to any severance pay
plan or stay bonus plan. However, Xxxxxx shall not be obligated to
mitigate the amount of any payment provided for in this Agreement by seeking
employment or otherwise and such amounts shall not be reduced by any
compensation or earnings Xxxxxx may receive from a future employer following
termination of his employment with Employer. Notwithstanding the
foregoing, nothing in this Section 7(b) shall be construed to affect Xxxxxx’x
right to receive COBRA continuation at Xxxxxx’x own cost to the extent that the
Executive may continue to be entitled to COBRA continuation after the
Executive’s right to cost sharing under Section 7(b)(i)
ceases. Xxxxxx shall be obligated to give prompt notice of the date
of commencement of any employment during the benefits continuation period and
shall respond promptly to any reasonable inquiries concerning any employment in
which Xxxxxx engages during the benefits continuation period.
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(c) Termination by the Employer
with Cause. If Xxxxxx’x employment is terminated by the
Employer with Cause under Section 6(a), the Employer shall have no further
obligation to Xxxxxx other than payment of his Accrued Benefit.
(d) Termination by the Employer
without Cause or by Xxxxxx for Good Reason following a Change of
Control. In the event of termination of Xxxxxx’x employment
with the Employer pursuant to Section 6(b) or Section 6(c) above within twelve
(12) months following a Change of Control and subject to Xxxxxx’x agreement to a
release of any and all legal claims in a form reasonably satisfactory to the
Employer and Xxxxxx (excluding any indemnification or other obligations
hereunder which survive termination of this Agreement), the Employer shall
provide to Xxxxxx the following termination benefits (“Termination
Benefits”):
(i) A
lump sum payment equal to twelve (12) months of Xxxxxx’x Salary at the rate then
in effect pursuant to Section 4(a), payable within fourteen (14) days of the
termination date, plus continuation of group health plan benefits to the extent
authorized by and consistent with 29 U.S.C. § 1161 et seq. (commonly known as
“COBRA”) for twelve (12) months or until the Executive commences employment, if
earlier, subject to payment of premiums by the Executive at the active
employees’ rate.
The
Employer’s liability for severance pursuant to Section 7(d) shall be reduced by
the amount of any severance pay paid to Xxxxxx pursuant to any severance pay
plan or stay bonus plan of the Employer. However, Xxxxxx shall not be obligated
to mitigate the amount of any payment provided for in this Agreement by seeking
employment or otherwise and such amounts shall not be reduced by any
compensation or earnings Xxxxxx may receive from a future employer following
termination of his employment with Employer. Notwithstanding the
foregoing, nothing in this Section 7(d) shall be construed to affect Xxxxxx’x
right to receive COBRA continuation entirely at Xxxxxx’x own cost to the extent
that the Executive may continue to be entitled to COBRA continuation after the
Executive’s right to cost sharing under Section 7(d)(i)
ceases. Xxxxxx shall be obligated to give prompt notice of the date
of commencement of any employment during the benefits continuation period and
shall respond promptly to any reasonable inquiries concerning any employment in
which Xxxxxx engages during the benefits continuation period.
(e) Definition of Change of
Control. For purposes of this Agreement, a “Change of Control”
shall mean:
(i)
a merger, consolidation or other reorganization approved by
the Employer’s stockholders, unless securities representing more than fifty
percent (50%) of the total combined voting power of the voting securities of the
successor corporation are immediately thereafter beneficially owned, directly or
indirectly and in substantially the same proportion, by the persons who
beneficially owned the Employer’s outstanding voting securities immediately
prior to such transaction; or
(ii) a
stockholder-approved liquidation, dissolution, sale, transfer or other
disposition of all or substantially all of the Employer’s assets;
or
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(iii) the
closing of any transaction or series of related transactions pursuant to which
any person or any group of persons comprising a “group” within the meaning of
Rule 13d-5(b)(1) of the Securities Exchange Act of 1934 Act, as amended (the
“Exchange Act”) (other than the Employer or a person that, prior to such
transaction or series of related transactions, directly or indirectly controls,
is controlled by or is under common control with, the Employer) becomes directly
or indirectly the beneficial owner (within the meaning of Rule 13d-3 of the
Exchange Act) of securities possessing (or convertible into or exercisable for
securities possessing) more than fifty percent (50%) of the total combined
voting power of the Employer’s securities (as measured in terms of the power to
vote with respect to the election of Board members) outstanding immediately
after the consummation of such transaction or series of related transactions,
whether such transaction involves a direct issuance from the Employer or the
acquisition of outstanding securities held by one or more of the Employer’s
existing stockholders.
(f) Payment of Termination
Benefits. Anything in this Agreement to the contrary
notwithstanding, if at the time of Xxxxxx’x termination of employment, Xxxxxx is
considered a “specified employee” within the meaning of Section 409A(a)(2)(B)(i)
of the Internal Revenue Code of 1986, as amended (the “Code”), and if any
payment that Xxxxxx becomes entitled to under this Agreement is considered
deferred compensation subject to interest and additional tax imposed pursuant to
Section 409A(a) of the Code as a result of the application of Section
409A(a)(2)(B)(i) of the Code, then no such payment shall be payable prior to the
date that is the earlier of (i) six months after Xxxxxx’x separation from
service, or (ii) Xxxxxx’x death, and the initial payment shall include a
catch-up amount covering amounts that would otherwise have been paid during the
first six-month period but for the application of this Section
7(f). Any such deferred payment shall earn simple interest calculated
at the short-term applicable federal rate in effect on the date of Xxxxxx’x
separation from service. The parties intend that this Agreement will
be administered in accordance with Section 409A of the Code. The
parties agree that this Agreement may be amended, as reasonably requested by
either party, and as may be necessary to fully comply with Section 409A of the
Code and all related rules and regulations in order to preserve the payments and
benefits provided hereunder without additional cost to either
party.
8. Reimbursement of Relocation
Costs.
In the
event Xxxxxx terminates his employment (A) other than for Good Reason following
a Change of Control, or (B) if Xxxxxx’x employment is terminated by the Employer
with Cause under Section 6(a), and such termination occurs prior to the first
anniversary of the date of Xxxxxx’x relocation to the Herndon, Virginia area,
Xxxxxx shall be obligated to reimburse Employer for the Relocation Costs paid to
Xxxxxx under Section 4(e)(iii)(B) (the “Relocation Reimbursement”).
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9. Confidential Information,
Noncompetition and Cooperation.
(a) Confidential
Information. As used in this Agreement, “Confidential
Information” means information belonging to the Employer which is of value to
the Employer in the course of conducting its business and the disclosure of
which could result in a competitive or other disadvantage to the
Employer. Confidential Information includes, without limitation,
financial information, reports, and forecasts; inventions, improvements and
other intellectual property; trade secrets; know-how; designs, processes or
formulae; software; market or sales information or plans; customer lists; and
business plans, prospects and opportunities (such as possible acquisitions or
dispositions of businesses or facilities) which have been discussed or
considered by the management of the Employer. Confidential
Information includes information developed by Xxxxxx in the course of Xxxxxx’x
employment by the Employer, as well as other information to which Xxxxxx may
have access in connection with Xxxxxx’x employment. Confidential
Information also includes the confidential information of others with which the
Employer has a business relationship. Notwithstanding the foregoing,
Confidential Information does not include (i) information in the public domain,
unless due to breach of Xxxxxx’x duties under Section 9(b), or (ii) otherwise
known by Xxxxxx other than by reason of his employment hereunder; provided that the source of
such information is not known by Xxxxxx to have disclosed such information in
violation of an obligation of confidentiality owed to the Employer.
(b) Confidentiality. Xxxxxx
understands and agrees that Xxxxxx’x employment creates a relationship of
confidence and trust between Xxxxxx and the Employer with respect to all
Confidential Information. At all times, both during Xxxxxx’x
employment with the Employer and after its termination, Xxxxxx will keep in
confidence and trust all such Confidential Information, and will not use or
disclose any such Confidential Information without the written consent of the
Employer, except as may be necessary in the ordinary course of performing
Xxxxxx’x duties to the Employer.
(c) Documents, Records,
etc. All documents, records, data, apparatus, equipment and
other physical property, whether or not pertaining to Confidential Information,
which are furnished to Xxxxxx by the Employer or are produced by Xxxxxx in
connection with Xxxxxx’x employment will be and remain the sole property of the
Employer. Xxxxxx will return to the Employer all such materials and
property as and when requested by the Employer. In any event, Xxxxxx
will return all such materials and property immediately upon termination of
Xxxxxx’x employment for any reason. Xxxxxx will not retain any such
material or property or any copies thereof after such termination.
(d) Noncompetition and
Nonsolicitation. During the term of this Agreement and, if
this Agreement if terminated, for (A) six months if termination is prior to the
six month anniversary of the Effective Date, and (B) twelve (12) months
thereafter, Xxxxxx (i) will not, directly or indirectly, whether as owner,
partner, shareholder, consultant, agent, employee, co-venturer or otherwise,
engage, participate, assist or invest in any Competing Business (as defined
below); (ii) will refrain from directly or indirectly employing, attempting to
employ, recruiting or otherwise soliciting, inducing or influencing any person
to leave employment with the Employer (other than terminations of employment of
subordinate employees undertaken in the course of Xxxxxx’x employment with the
Employer); and (iii) will refrain from soliciting or encouraging any customer or
supplier to terminate or otherwise modify adversely its business relationship
with the Employer. Xxxxxx understands that the restrictions set forth
in this Section 9(d) are intended to protect the Employer’s interest in its
Confidential Information and established employee, customer and supplier
relationships and goodwill, and agrees that such restrictions are reasonable and
appropriate for this purpose. For purposes of this Agreement, the
term “Competing Business” shall mean a business conducted anywhere in any
jurisdiction where the Employer and/or its affiliates conduct such business as
of the date Xxxxxx’x employment terminates, and shall be deemed to include,
without limitation, any business activity or jurisdiction which is covered by or
included in a written proposal or business plan existing on the date of the
termination of Xxxxxx’x employment with the Employer, which is directly
competitive with any business which the Employer or any of its affiliates
conducts or has documentable plans to conduct during the employment of
Xxxxxx. Notwithstanding the foregoing, Xxxxxx may own up to one
percent (1%) of the outstanding stock of a publicly held corporation which
constitutes or is affiliated with a Competing Business.
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(e) Third-Party Agreements and
Rights. Xxxxxx hereby confirms that Xxxxxx is not bound by the
terms of any agreement with any previous employer or other party which restricts
in any way Xxxxxx’x use or disclosure of information or Xxxxxx’x engagement in
any business. Xxxxxx represents to the Employer that Xxxxxx’x
execution of this Agreement, Xxxxxx’x employment with the Employer and the
performance of Xxxxxx’x proposed duties for the Employer will not violate any
obligations Xxxxxx may have to any such previous employer or other
party. In Xxxxxx’x work for the Employer, Xxxxxx will not disclose or
make use of any information in violation of any agreements with or rights of any
such previous employer or other party, and Xxxxxx will not bring to the premises
of the Employer any copies or other tangible embodiments of non-public
information belonging to or obtained from any such previous employment or other
party.
(f) Litigation and Regulatory
Cooperation. During Xxxxxx’x employment and for a period of
one (1) year thereafter, Xxxxxx shall cooperate fully with the Employer in the
defense or prosecution of any claims or actions now in existence or which may be
brought in the future against or on behalf of the Employer which relate to
events or occurrences that transpired while Xxxxxx was employed by the
Employer. Xxxxxx’x full cooperation in connection with such claims or
actions shall include, but not be limited to, being available to meet with
counsel to prepare for discovery or trial and to act as a witness on behalf of
the Employer at mutually convenient times. During and after Xxxxxx’x
employment, Xxxxxx also shall cooperate fully with the Employer in connection
with any investigation or review of any federal, state or local regulatory
authority as any such investigation or review relates to events or occurrences
that transpired while Xxxxxx was employed by the Employer. The
Employer shall reimburse Xxxxxx for any reasonable out-of-pocket expenses
incurred in connection with Xxxxxx’x performance of obligations pursuant to this
Section 9(f).
(g) Injunction. Xxxxxx
agrees that it would be difficult to measure any damages caused to the Employer
which might result from any breach by Xxxxxx of the promises set forth in this
Section 9, and that in any event money damages would be an inadequate remedy for
any such breach. Accordingly, Xxxxxx agrees that if Xxxxxx breaches,
or proposes to breach, any portion of this Agreement, the Employer shall be
entitled, in addition to all other remedies that it may have, to an injunction
or other appropriate equitable relief to restrain any such breach without
showing or proving any actual damage to the Employer.
10. Consent to
Jurisdiction. The parties hereby consent to the jurisdiction
of the Superior Court of the State of New Jersey and the United States District
Court for the District of New Jersey. Accordingly, with respect to
any such court action, the parties (a) submit to the personal jurisdiction of
such courts; (b) consent to service of process; and (c) waive any other
requirement (whether imposed by statute, rule of court, or otherwise) with
respect to personal jurisdiction or service of process.
10
11. Integration. This
Agreement constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all prior agreements between the
parties with respect to any related subject matter.
12. Assignment; Successors and
Assigns, etc. Neither the Employer nor Xxxxxx may make any
assignment of this Agreement or any interest herein, by operation of law or
otherwise, without the prior written consent of the other party; provided that the Employer
may assign its rights under this Agreement without the consent of Xxxxxx in the
event that the Employer shall effect a reorganization, consolidate with or merge
into any other corporation, partnership, organization or other entity, or
transfer all or substantially all of its properties or assets to any other
corporation, partnership, organization or other entity. This
Agreement shall inure to the benefit of and be binding upon the Employer and
Xxxxxx, their respective successors, executors, administrators, heirs and
permitted assigns.
13. Enforceability. If
any portion or provision of this Agreement (including, without limitation, any
portion or provision of any section of this Agreement) shall to any extent be
declared illegal or unenforceable by a court of competent jurisdiction, then the
remainder of this Agreement, or the application of such portion or provision in
circumstances other than those as to which it is so declared illegal or
unenforceable, shall not be affected thereby, and each portion and provision of
this Agreement shall be valid and enforceable to the fullest extent permitted by
law.
14. Waiver. No
waiver of any provision hereof shall be effective unless made in writing and
signed by the waiving party. The failure of any party to require the
performance of any term or obligation of this Agreement, or the waiver by any
party of any breach of this Agreement, shall not prevent any subsequent
enforcement of such term or obligation or be deemed a waiver of any subsequent
breach.
15. Notices. Any
notices, requests, demands and other communications provided for by this
Agreement shall be sufficient if in writing and delivered in person or sent by a
nationally recognized overnight courier service or by registered or certified
mail, postage prepaid, return receipt requested, to Xxxxxx at the last address
Xxxxxx has filed in writing with the Employer or, in the case of the Employer,
at its main offices, attention of the CEO, and shall be effective on the date of
delivery in person or by courier or three (3) days after the date
mailed.
16. Amendment. This
Agreement may be amended or modified only by a written instrument signed by
Xxxxxx and by a duly authorized representative of the Employer.
17. Governing
Law. This is a New Jersey contract and shall be construed
under and be governed in all respects by the laws of the State of New Jersey,
without giving effect to the conflict of laws principles of such
State. With respect to any disputes concerning federal law, such
disputes shall be determined in accordance with the law as it would be
interpreted and applied by the United States Court of Appeals for the Third
Circuit.
11
18. Counterparts. This
Agreement may be executed in any number of counterparts, each of which when so
executed and delivered shall be taken to be an original; but such counterparts
shall together constitute one and the same document.
*remainder
of page has intentionally been left blank*
12
IN
WITNESS WHEREOF, this Employment Agreement has been executed as a sealed
instrument by the Employer, by its duly authorized officer, and by Xxxxxx, as of
the Effective Date.
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ARBINET
CORPORATION
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||
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By:
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/s/ Xxxxx X.
X’Xxxxxxx
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Name: Xxxxx
X. X’Xxxxxxx
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||
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Title: President
and Chief Executive Officer
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||
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/s/ Xxxx Xxxxxx Xxxxxx
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||
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Xxxx
Xxxxxx Xxxxxx
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||
13
EXHIBIT
A
Equity
Agreement
14
EXHIBIT
B
Board
of Directors
ePower
Synergies, Inc.,
15
EXHIBIT
C
Existing
Entities
World
Hockey, LLC
Xxxxxx
Enterprises Inc.
Stirling
Power, LLC
Blue
Ridge Consulting, LLC
16
