AGREEMENT
AGREEMENT dated as of the 15 day of November, 1998 by and
between V BAND CORPORATION, a New York corporation with a principal place of
business at 000 Xxxxxx Xxxx, Xxxxxxxx, XX 00000 and XXXXXX XXXXXX, an individual
with a residence at [ address deleted ] (the "Executive").
W I T N E S S E T H:
WHEREAS, Executive is a key employee of the Company (as that
term is hereafter defined) and the Company desires to provide Executive with the
compensation benefits described in this Agreement as an inducement to his high
level of commitment to advance the best interests of the Company.
NOW, THEREFORE, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Supplemental Agreement. This Agreement is supplemental to
the Executive's employment arrangements with the Company, but replaces and
supersedes the Agreement dated as of January 17, 1998 (the "Prior Agreement") by
and between V Band Corporation and Executive. The prior Agreement and the rights
and obligations of the parties thereunder are hereby terminated.
2. Continuation and Termination of Executive's Employment. The
parties agree that Executive shall continue to serve as the President and Chief
Operating Officer of V Band Corporation until Executive's employment is
terminated, at the absolute discretion of V Band Corporation or Executive, by
giving the other party thirty (30) days prior written notice.
3. Reimbursement of Expenses. Executive shall be entitled to
the reimbursement of all reasonable out-of-pocket expenses incurred during the
course of his employment by V Band Corporation in accordance with the
reimbursement policies of V Band Corporation in effect on the date of this
Agreement.
4. Change of Control Payment. If a Change of Control (as
hereafter defined) of the Company occurs at any time during the period of
Executive's employment as President of the Company or within six (6) months
after the termination of Executive's employment as President of the Company, the
Company will pay the Executive the amount of $150,000. This payment will be made
to Executive in twelve (12) equal monthly installments, commencing thirty (30)
days after the date of the Change of Control of the Company. The Executive's
right to receive the payments provided by this Agreement are subject to the
following conditions:
(a) In the event that Executive elects to terminate his
employment by V Band Corporation, at his absolute discretion, he has provided
the Company with the notice required by Section 2 of this Agreement; and
(b) The Executive will not be entitled to receive any payments
after the date the Company terminates the Executive's employment for Cause (as
defined in Section 5 of this Agreement).
5. Definitions. For purposes of this Agreement, the following
terms shall have the following meanings:
"Cause" shall mean (a) fraud, criminal wrongdoing, or
intentional misconduct by the Executive, or (b) the willful failure to perform
the Executive's responsibilities during the term of his employment hereunder,
which failure continues for a period of fourteen (14) calendar days after the
Executive has received written notice of such failure.
"Change of Control" shall mean the occurrence of any of the
following events: (1) a "change of control of the Company that is required to be
reported to the Securities and Exchange Commission; (2) fifty percent (50%) or
more of the outstanding shares of the Company's Common Stock is acquired by one
person, group, or entity; (3) the consummation of a merger, consolidation, or
other business combination in which the holders of the Company's common stock
immediately preceding the consummation of such merger, consolidation, or other
business combination do not immediately after the consummation of such merger,
consolidation, or business combination hold more than fifty percent (50%) or
more of the voting securities of the surviving corporation of such transaction.
"Company" shall mean V Band Corporation and, in the event of a
merger, consolidation, or business combination, the corporation which is the
surviving corporation.
6. Miscellaneous.
(a) This Agreement and the rights and obligations of
the parties hereunder shall be governed by and construed in accordance with the
internal, substantive laws of the State of New York, without giving effect to
the conflicts of law provisions thereof.
(b) The Executive shall not have any right to
transfer, assign, hypothecate, or otherwise encumber any part or all of the
amounts payable hereunder.
(c) This Agreement may not be amended, altered, or
modified, except by a written instrument signed by the parties hereto, or their
respective successors, and may not be otherwise terminated except as provided
herein.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the date first written above.
V BAND CORPORATION
By: /s/Xxxxxx Xxxx
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Xxxxxx Xxxx
Title: Chief Executive Officer
/s/Xxxxxx Xxxxxx
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XXXXXX XXXXXX
