COO EMPLOYMENT AGREEMENT
Exhibit 10.16
THIS EMPLOYMENT AGREEMENT is entered into as of the 5th day of July, 2012 (the “Effective Date”), by and between Broadview Networks Holdings, Inc. (the “Company”) and Xxxxx X. Xxxxxx, an individual (the “Executive”) (hereinafter collectively referred to as the “parties”).
WHEREAS, the Company and Executive entered into an Employment Agreement on March 3, 2004, and they desire to restate the terms and conditions of their employment arrangement as of the Effective Date; and
WHEREAS, in order to induce the Executive to continue as an employee of the Company, and to agree to the covenants regarding confidential information, inventions and patents, non-competition, non-disparagement and such other matters as set forth in this Agreement, the Company has agreed to provide additional benefits as set forth herein; and
WHEREAS, the Company and the Executive desire by this writing, and this writing alone, to set forth the terms as of the Effective Date of the employment relationship of the Executive with the Company.
NOW, THEREFORE, in consideration of the respective agreements of the parties contained herein, it is agreed as follows:
1. Term. The initial term of employment under this Agreement shall be for the period commencing on the Effective Date, and ending on the first anniversary thereof; provided, however, that the term of this Agreement shall be extended for one (1) year at the end of the initial term and on each anniversary thereafter unless the Company shall have given written notice to the Executive at least sixty (60) calendar days prior thereto that the term of this Agreement shall not be so extended; and provided, further, that if the Company provides such notice and does not extend the term of this Agreement following the expiration of the initial term or any renewal term, the Executive’s employment shall be terminated following the expiration of such initial term or renewal term.
2. Employment.
(a) The Executive shall be employed as the Chief Operating Officer of the Company, subject to adjustments in responsibilities as made by the CEO from time to time, without a change in compensation, and shall provide such services to the Company and its subsidiaries and affiliates as the Company may reasonably request. The Executive shall report to the Chief Executive Officer of the Company (or to the person holding a position of similar authority in any successor organization) (“CEO”) or to an executive who reports to the CEO, except for specific reports required to be made directly to the Board of Directors of the Company (the “Board”) in accordance with written policies and procedures adopted by the Board. The Executive agrees to perform faithfully, industriously, and to the best of the Executive’s ability, experience, and talents, all of the duties, responsibilities and exercise the authority customarily performed, undertaken and exercised by an employee situated in a similar position and to the reasonable satisfaction of the CEO and the Board. Subject to the following paragraph, such duties
(a) The Executive shall be entitled to participate in all employee benefit plans, practices and programs maintained by the Company and made available to employees generally. The Executive’s participation in such plans, practices and programs shall be on the same basis and terms as are applicable to employees of the Company generally.
(b) In addition to the benefits in paragraph (a), the Company shall provide a monthly automobile allowance in the amount approved by the Board for use in Executive’s responsibilities.
8. Executive and Other Benefits.
(a) Executive Benefits Generally. The Executive shall be entitled to participate in all executive benefit or incentive compensation plans now maintained or hereafter established by the Company for the purpose of providing compensation and/or benefits to executives of the Company. Unless otherwise provided herein, the Executive’s participation in such plans shall be on the same basis and terms as other similarly situated executives of the Company. No additional compensation provided under any of such plans shall be deemed to modify or otherwise affect the terms of this Agreement or any of the Executive’s entitlements hereunder.
(b) D&O Insurance. During the term of this Agreement and for an additional three years following the expiration of the term hereof (the “Coverage Period”), Executive shall be covered (for both liability and representation) at all times as an “Officer” or “Executive Officer” or the equivalent thereof (“D&O Coverage”) under the Company’s directors and officers insurance policy in effect on the Effective Date and any subsequent renewals, extensions or replacements thereof (the “Existing Policy”). Executive acknowledges that the terms of the D&O Coverage might change during the Coverage Period, provided such changed coverage is not materially different than the coverage in effect on the Effective Date.
(c) Reimbursement and In-Kind Benefits. To the extent this Agreement provides for reimbursements of expenses incurred by Executive or in-kind benefits the provision of which are not exempt from the requirements of Section 409A of the Internal Revenue Code, the following terms apply with respect to such reimbursements or benefits: (1) the reimbursement of expenses or provision of in-kind benefits will be made or provided only during the period of time in which Executive is employed by the Company or during the shorter period of time specifically provided herein; (2) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a taxable year will not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year; (3) all reimbursements will be made on or before the last day of Executive’s taxable year immediately following the taxable year in which the expense was incurred; and (4) the right to the reimbursement or the in-kind benefit will not be subject to liquidation or exchange for another benefit.
9. Expenses. The Executive shall be entitled to receive reimbursement of all reasonably-incurred normal and customary expenses in connection with the performance of his duties hereunder or for promoting, pursuing or otherwise furthering the business or interests of the Company, provided, that, such expenses are in accordance with the Company’s policies and procedures.
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10. Personal Leave Days. The Executive shall be entitled to not less than four (4) weeks of personal leave per year or such other amount in accordance with the Company’s leave policies, at such reasonable times as the CEO shall in his discretion permit.
11. Termination. The Executive’s employment hereunder may be terminated under the following circumstances:
(a) Disability. The Company may terminate the Executive’s employment after having established the Executive’s Disability. For purposes of this Agreement, “Disability” means a physical or mental infirmity which impairs the Executive’s ability to substantially perform his duties under this Agreement and which continues for a total of at least ninety (90) calendar days (exclusive of personal leave days) in a one-hundred eighty (180) day period. The Executive shall be entitled to the compensation and benefits provided for under this Agreement for any period during the term of this Agreement during which the Executive is unable to work due to a physical or mental infirmity until the establishment of the Executive’s Disability pursuant to this subsection.
(b) Cause. The Company, acting by its Board of Directors, may terminate the Executive’s employment for “Cause.” A termination for Cause shall mean discharge by the Company by reason of the following: (i) the Executive’s conviction of, or a plea of nolo contendere to, any act which constitutes a felony offense under applicable law in connection with the performance of the Executive’s obligations on behalf of the Company or which affects the Executive’s ability to perform the Executive’s obligations as an employee of the Company or under this Agreement or any non-competition agreement, confidentiality agreement or like agreement or covenant between the Executive and the Company or which materially and adversely affects the reputation and business activities of the Company; (ii) the Executive’s willful misconduct in connection with the performance of the Executive’s duties and responsibilities as an employee of the Company; (iii) the Executive’s commission of an act of embezzlement, fraud or dishonesty which results in a loss, damage or injury to the Company; (iv) the Executive’s substantial and continuing gross negligence in the performance of the Executive’s duties as an employee of the Company; (v) the Executive’s knowing unauthorized use or unauthorized disclosure of any trade secret or confidential information of the Company which adversely affects the business of the Company; provided, that any disclosure of any trade secret or confidential information of the Company to a third party in the ordinary course of business who signs a confidentiality agreement shall not be deemed a breach of this subsection; (vi) substance or alcohol abuse for which the Executive fails to undertake and maintain treatment within five (5) calendar days after requested in writing by the Company; or (vii) the Executive’s continuing material failure or refusal to perform the Executive’s duties in accordance with the terms of this Agreement. Notwithstanding anything herein to the contrary, the Executive’s resignation promptly following an action by the Company that results in a constructive termination or discharge of the Executive’s employment with the Company shall constitute a termination by the Company without Cause for purposes of this Agreement.
(c) Without Cause. The Company may terminate the Executive’s employment at any time for any reason other than Cause or for no reason.
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(d) Good Reason. The Executive may terminate his employment by written notice by the Executive to the Company of a termination for Good Reason. “Good Reason” shall mean the occurrence of any of the following events, within twelve (12) months after a Change-in-Control (as defined below), without the express written consent of the Executive, unless such events are fully corrected in all material respects by the Company within thirty (30) calendar days following written notification by the Executive to the Company that the Executive intends to terminate his employment hereunder for one of the reasons set forth below, provided that the Executive provides such notice to the Company within sixty (60) calendar days after the first occurrence of the events described below:
(i) any material reduction or diminution (except temporarily during any period of physical or mental incapacity) in the Executive’s authorities, duties or responsibilities or reporting requirements with the Company;
(ii) a material breach by the Company of any provisions of this Agreement, including, but not limited to, any reduction in any part of the Executive’s Base Salary or a reduction of the annual bonus paid to the Executive to at least 25% below the minimum target described in Section 4 in each of two consecutive years unless such reduction was on the basis of a material under performance by the Company or the Executive that is described to the Executive in writing;
(iii) the failure of any successor to the Company to assume and agree to perform this Agreement; or
(iv) the Executive is required to relocate to a principal place of employment other than the city in which the headquarters of the Company was located prior to a Change-in-Control without the Executive’s consent.
(e) Notice of Termination. Any purported termination by the Company or by the Executive shall be communicated by a written Notice of Termination to the other party. For purposes of this Agreement, a “Notice of Termination” shall mean a notice which indicates the specific termination provision in this Agreement relied upon and shall set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Executive’s employment under the provision so indicated. For purposes of this Agreement, no such purported termination of employment shall be effective without such Notice of Termination.
(f) Termination Date, Etc. “Termination Date” shall mean in the case of the Executive’s death, his date of death, or in all other cases, the date specified in the Notice of Termination subject to the following:
(i) If the Executive’s employment is terminated by the Company for Cause or without Cause or due to Disability, the date specified in the Notice of Termination given to the Executive; and
(ii) If the Executive’s employment is terminated by the Executive, the date specified in the Notice of Termination shall not be less than sixty (60) calendar days nor more than seventy-five (75) calendar days from the date the Notice of Termination is given to the Company.
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(g) Change-in-Control. A “Change-in-Control” shall mean any of the following:
(i) the dissolution or liquidation of the Company;
(ii) a merger, consolidation, reorganization or similar transaction involving the Company (A) in which the Company is not the surviving corporation(s) or other surviving entity(ies) or (B) which results in the Company becoming the wholly-owned subsidiary of another corporation(s) or other entity(ies) (any transaction of the type specified in this clause (B) a “Parent Transaction”), unless the existing stockholders of the Company beneficially own (within the meaning of Rule 13d-3 promulgated under the Securities Exchange Act of 1934 as amended (the “Exchange Act”)) in the aggregate immediately following the consummation of such transaction more than 50% of the combined voting power of all classes of outstanding voting securities of the successor(s) to the Company (in the case of a transaction referred to in clause (B) above) or of the corporation(s) or other entity(ies) whose voting securities are issued to the existing stockholders in such transaction (in the case of a transaction referred to in clause (A) or (B) above);
(iii) a sale of all or substantially all of the assets of the Company to another corporation(s) or other entity(ies) as determined in accordance with the applicable law of the State of Delaware;
(iv) any other transaction (including a merger, consolidation, reorganization or similar transaction) that results in any corporation(s) or other entity(ies) beneficially owning (within the meaning of Rule 13d-3 promulgated under the Exchange Act) immediately following the consummation of such transaction more than 50% of the combined voting power of all classes of outstanding voting securities of (A) the corporation(s) (including, to the extent applicable, the Company, or other entity whose voting securities are issued to the existing stockholders of the Company in such transaction or (B) if no such issuance is made in such transaction, the Company, provided, however, that Change-in-Control shall not mean any transaction in which the existing stockholders of the Company prior to the transaction are the same as the stockholders of the Company after the transaction, notwithstanding that the existing stockholders’ relative ownership percentages have changed; or
(v) the Board members then serving on the Effective Date (“Incumbent Board Members”) ceasing for any reason to constitute (A) at any time prior to the consummation of a Parent Transaction, a majority of the Board or a majority of the board of directors, board of managers or other governing body of any successor to the Company or (B) at any time following the consummation of a Parent Transaction, a majority of the board of directors, board of managers or other governing body of the corporation or other entity whose voting securities are issued to the existing stockholders of the Company in such transaction; provided, however, that any individual becoming a member of the Board
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or of such board of directors, board of managers or other governing body, as the case may be, subsequent to the Effective Date whose appointment or nomination for election was approved by a vote of at least a majority of the Incumbent Board Members shall be deemed to be an Incumbent Board Member for purposes of this clause (v), but excluding, for such purposes, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors (or managers or other members of any such governing body) or other actual or threatened solicitation of proxies or consents by or on behalf of someone other than the Board or such board of directors, board of managers or other governing body, as the case may be.
Notwithstanding anything herein to the contrary, following the occurrence of a Change-in-Control, the determination of whether or not subsequent Change-in-Control has occurred will be made by replacing (i) references to “Effective Date” in the definition thereof with references to the date of the immediately prior Change-in-Control, and (ii) references to existing stockholders (or any variation thereof) with references to the stockholders immediately following the preceding Change-in-Control. For the avoidance of doubt, more than one Change-in-Control may occur for purposes of this Agreement.
12. Compensation Upon Termination. Upon termination of the Executive’s employment during the term of this Agreement, the Executive shall be entitled to the following benefits:
(a) If the Executive’s employment is terminated by the Company for Cause or by the Executive other than for Good Reason, the Company shall pay the Executive all amounts earned or accrued hereunder through the Termination Date but not paid as of the Termination Date, including (i) Base Salary, (ii) reimbursement for any and all monies advanced or expenses incurred in connection with the Executive’s employment for reasonable and necessary expenses incurred by the Executive on behalf of the Company for the period ending on the Termination Date, (iii) vacation pay, and (iv) any previous compensation which the Executive has previously deferred (including any interest earned or credited thereon) (collectively, “Accrued Compensation”). The Executive’s entitlement to any other compensation or benefits shall be determined in accordance with the Company’s employee benefit plans and other applicable programs and practices then in effect.
(b) If the Executive’s employment by the Company shall be terminated by the Company without Cause, or by the Executive for Good Reason, or if the Company fails to extend the Agreement following the expiration of the initial term or any subsequent renewal term, then the Executive shall be entitled to the benefits provided below:
(i) the Company shall pay the Executive all Accrued Compensation;
(ii) provided that the Executive shall have executed, in the form of Exhibit C to this Agreement, a general release of, and waiver of claims against, the Company and its subsidiaries, affiliates, directors, officers, employees and agents, excluding claims for contribution, indemnity, continuation to coverage under directors and officers liability insurance and the like, and that such release is effective, then in lieu of any further salary or benefits for periods subsequent to the Termination Date, the Company shall pay the Executive as severance pay and provide the benefits as follows:
(A) an amount in cash equal to 150% of the highest annualized Base Salary paid to Executive at any time during the one-year period immediately preceding the Termination Date;
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(B) Any unpaid bonuses or incentive compensation related to the prior fiscal year;
(C) an amount equal to 150% of the Target Bonus for the fiscal year in which the Executive’s employment is terminated;
(D) any unvested equity incentive benefits issued or granted to the Executive pursuant to Section 5 shall immediately vest in full as of the Termination Date;
(E) a pro-rated Target Bonus for the current fiscal year based upon the length of service during such fiscal year; and
(F) continued participation in all employee benefit plans, practices and programs maintained by the Company to the same extent and in the same manner as, and at the same cost to Executive as that borne by him, prior to the Termination Date, for a period of eighteen (18) months following the Termination Date; provided that if Executive is not eligible following the Termination Date to participate in the Company’s group health or dental plans, then the Company may fulfill its obligation under this subsection by reimbursing Executive for the additional costs to Executive of continuing such coverage under COBRA during the period of time that the Executive is entitled to continue such coverage under COBRA, not to exceed eighteen (18) months following the Termination Date (including any amounts necessary to cover taxes for such reimbursement).
(c) If the Executive’s employment shall be terminated by death of the Executive or by the Company for Disability, then the Executive or Executive’s estate shall be entitled to the benefits provided below:
(i) the Company shall pay the Executive all Accrued Compensation;
(ii) provided that the Executive or Executive’s estate, as applicable, shall have executed, in the form of Exhibit C to this Agreement, a general release of, and waiver of claims against, the Company and its subsidiaries, affiliates, directors, officers, employees and agents, excluding claims for contribution, indemnity, continuation to coverage under directors and officers liability insurance and the like, and that such release is effective, then in lieu of any further salary or benefits for periods subsequent to the Termination Date, the Company shall pay the Executive as severance pay and provide the benefits as follows:
(A) Any unpaid bonuses or incentive compensation related to the prior fiscal year; and
(B) A pro-rated Target Bonus for the current fiscal year based upon the length of service during such fiscal year.
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(d) The amounts provided for in Sections 12(a), 12(b)(i), 12(b)(ii)(A)-(C), 12(c)(i) and 12(c)(ii) shall be paid within fifteen (15) business days after the Termination Date, or such sooner date as required by applicable law.
(e) The Executive shall not be required to mitigate the amount of any payment provided for in this Agreement by seeking other employment or otherwise and no such payment shall be offset or reduced by the amount of any compensation or benefits provided to the Executive in any subsequent employment.
13. Employee Covenants.
(a) Confidential Information.
(i) The Executive hereby recognizes and acknowledges that, in and as a result of the provision of services to the Company, he will receive, and previously has received, confidential and proprietary information of and regarding the Company, its business activities and the business activities of the Company’s subsidiaries and affiliates. Accordingly, as a material inducement for the Company to enter into this Agreement and in consideration of Executive’s retention and the payment to the Executive of the compensation and benefits herein, the Executive hereby agrees to hold in strictest confidence and not to use for his own benefit or that of any third party or to intentionally or negligently publish or disclose, directly or indirectly, in a manner which could be harmful to the Company or its subsidiaries and affiliates, any Confidential Information. For purposes of this Agreement, intending that the term shall be broadly construed to include anything that may be protected as a trade secret under applicable law, “Confidential Information” shall mean all information, whether communicated in writing, electronically, orally or otherwise, and all documents and other tangible materials which record information, relating to the operation, financial status, business, product development, marketing/promotional activities, contractual relationships with customers and suppliers, relationships with directors, officers and employees, or internal policies and procedures of the Company, which has been or is from time to time created or learned by, disclosed to or known by the Executive as a consequence of his service to the Company, whether or not pursuant to this Agreement.
(ii) The restrictions on disclosure by the Executive of Confidential Information shall not apply to (A) information which at the time of disclosure was generally available to the public; (B) information which is published or otherwise becomes available to the public through means other than an act or omission of the Executive; or (C) information which was previously known to the Executive free of any obligation to keep it confidential. Notwithstanding anything to the contrary herein, Executive may disclose Confidential Information (x) if required to do so by law, or (y) if ordered to do so
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by a court or other governmental authority of competent jurisdiction; provided, however, that the Executive shall, unless prohibited from so doing, provide the Company prior written notice of any such mandated disclosure and afford the Company an opportunity to contest the disclosure and to itself limit the extent of the disclosure to the maximum extent practicable.
(iii) Confidential Information disclosed to the Executive is and shall remain the property of the Company. By disclosing Confidential Information to the Executive, the Company does not relinquish any of its proprietary rights and interests therein and hereby specifically reserve all such proprietary rights and interests to said Confidential Information. The Executive shall return, or, subject to applicable law, at the sole discretion of the Company, destroy, all Confidential Information and all copies thereof, including, without limitation, written and electronic copies, as well as all summaries, notes, memoranda, plans, records, reports, computer tapes, printouts and software or other documents, materials or things containing Confidential Information, to the Company upon the termination of this Agreement or promptly upon the written request of the Company for any reason and at any other time.
(b) Inventions and Patents. The Executive acknowledges that all inventions, innovations, improvements, developments, methods, designs, analyses, drawings, reports and all similar or related information (whether patentable or not) which relate to the actual or anticipated business, research and development or existing or future products or services of the Company and its subsidiaries and affiliates and which are conceived, developed or made by him solely or jointly with others during the term of the Agreement (“Work Product”) belong to the Company. The Executive shall promptly disclose such Work Product to the Board and perform all actions reasonably requested by the Board (whether during or after the term of the Agreement) to establish and confirm such ownership (including, without limitation, assignments, powers of attorney and other instruments) without additional compensation to the Executive.
(c) Non-Competition.
(i) In consideration of the compensation to be paid to the Executive hereunder, the Executive agrees that during the period beginning on the Effective Date and ending eighteen (18) months following the Termination Date:
(A) the Executive shall not, whether individually or in his capacity as a director, officer, manager, member, partner, shareholder, employee, consultant, agent or representative of or to a person or entity engage directly or indirectly in any business engaged in the provision of the telecommunications services or other services provided by the Company or any of their subsidiaries and downstream affiliates as of the Effective Date or at any time during the term of the Agreement in any state in which the Company or any of its subsidiaries and downstream affiliates provided such services to the extent such services in each such state accounted for greater than five percent (5%) of the Company’s revenues; provided, however, that (x) ownership of less than one percent (1%) of the outstanding stock of any publicly-traded corporation shall not be deemed to violate this subsection, or (y) the Executive may apply for, and the Company will make a good faith determination on whether to grant, a waiver of this subsection; and
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(B) the Executive shall not (1) whether individually or in his capacity as a director, officer, manager, member, partner, shareholder, employee, consultant, agent or representative of or to a person or entity, solicit or otherwise endeavor to entice away, any person or entity who, during the term of the Agreement and at any time during the six (6) months prior to the termination of the Executive’s services hereunder, is or was an officer, employee, sales agent, consultant, customer or supplier of the Company or its subsidiaries and affiliates, or (2) either directly or indirectly, alone or in conjunction with another party, interfere with or harm, or attempt to interfere with or harm, the relationship of the Company or its subsidiaries and affiliates (including the termination of such relationship or causing the purchase of services from a competitor) with any person or entity who, during the term of the Agreement, and at any time during the six (6) months prior to the termination of the Executive’s services hereunder, is or was a current employee, sales agent, consultant, customer or supplier of the Company or its subsidiaries and affiliates or otherwise had a business relationship with the Company or its subsidiaries and affiliates other than the Executive’s secretary/administrative assistant.
(ii) If at any time the Executive or his subsequent employer successfully challenges the enforceability of the provisions of Sections 13(c)(i) or 13(c)(ii), then (A) all references to eighteen (18) months in section 13(c) shall instead be references to the time period that such non-compete and non-solicitation restrictions actually remain in effect, and (B) the amount of Base Salary and bonus amount that the Executive may receive as severance under Section 12(b)(ii) shall automatically be reduced proportionately.
(d) Nondisparagement; Cooperation. The Executive shall not, at any time during his employment with the Company or thereafter, make any public or private statement to the news media, to any Company competitor or client, or to any other individual or entity, if such statement would disparage any of the Company, any of their respective businesses or any director or officer of any of them or such businesses or would have a deleterious effect upon the interests of any of such businesses or the stockholders or other owners of any of them; provided, however, that the Executive shall not be in breach of this restriction if such statements consist solely of private statements made to any officers, directors or employees of the Company by the Executive in the course of carrying out his duties pursuant to this Agreement or, to the extent applicable, his duties as a director or officer; and provided further that nothing contained in this Section 13(d) or in any other provision of this Agreement shall preclude the Executive from making any statement in good faith that is required by law, regulation or order of any court or regulatory commission, department or agency.
(e) The parties hereto agree that the Company would suffer irreparable harm from a breach by the Executive of any of the covenants or agreements contained herein and that money damages would not be an adequate remedy for any such breach. In the event of a breach or threatened breach by the Executive of any of the provisions of this Section 13, the Company or
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its successors or assigns, in addition to all other rights and remedies existing in its favor, shall be entitled to specific performance and/or injunctive or other equitable relief from any court of competent jurisdiction in order to enforce or prevent any violations of the provisions hereof without posting any bond or other security. Notwithstanding the foregoing, a grant of equitable relief in favor of the Company pursuant to this Section 13(e) shall not be determinative of any claims made by the Executive for money damages with respect to services rendered by the Executive under this Agreement.
(f) The Executive recognizes, acknowledges and agrees that the terms and conditions of this Section 13 are reasonable and properly required for the adequate protection of the Company’s business, and do not preclude the Executive from pursuing the Executive’s livelihood.
(g) If, at the time of enforcement of any of the provisions of this Section 13, a court holds that the restrictions stated therein are unreasonable under the circumstances then existing, the parties hereto agree that the maximum period, scope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area.
(h) The Executive agrees that the covenants made in Section 13 shall each be construed as an agreement independent of any other provision of this Agreement and each shall survive any order of a court of competent jurisdiction terminating any other provision of this Agreement.
14. Indemnification. Effective as of the Execution Date, the Company shall indemnify the Executive to the fullest extent authorized or permitted by applicable law, as now or hereafter in effect, with respect to any and all acts taken or omitted to be taken by the Executive on behalf or for the benefit of the Company or otherwise in connection with the Executive’s entering into and performance of this Agreement, the Executive’s employment by the Company and/or performance of his duties as provided in Section 2. The right to indemnification under this Section 14 shall continue as to the Executive even after he has ceased to be an officer of the Company with respect to acts and omissions during the term of this Agreement and shall inure to the benefit of his heirs, executors and legal representatives; provided, however, that, except for proceedings to enforce rights to indemnification, the Company shall not be obligated to indemnify the Executive (or his heirs, executors or legal representatives) in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors. The right to indemnification conferred upon the Executive by this Section 14 shall include the right to be paid by the Company the expenses incurred in defending or otherwise participating in any proceeding in advance of its final disposition upon receipt by the Company of an undertaking by or on behalf of the Executive to repay the amount advanced if it shall ultimately be determined that the Executive is not entitled to be indemnified by the Company under this Section 14. The right to indemnification and to the advancement of expenses conferred in this Section 14 shall not be exclusive of any other right that the Executive may have or hereafter acquire under the Certificate of Incorporation of the Company (as amended from time to time), the Bylaws of the Company (as amended from time to time), any statute, agreement, vote of shareholders or disinterested directors or otherwise. Notwithstanding anything to the contrary stated in the foregoing, the Company may not deny or
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eliminate any rights to indemnification or advancement of expenses held by Executive in this Agreement or otherwise by the adoption of an amendment to the Bylaws or Certificate of Incorporation for the Company after the Effective Date.
15. Future Applicability of Section 409A. Anything in this Agreement to the contrary notwithstanding, if (i) on the Termination Date, any capital stock of the Company or any successor thereto is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Code), (ii) you are determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B) of the Code, (iii) the payments exceed the amounts permitted to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iii) and (iv) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code, as a result of the termination of your employment, you would receive any payment that, absent the application of this Section 15, would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i) of the Code, then no such payment shall be payable prior to the date that is the earliest of (i) six months after the Termination Date, (ii) the date of your death or (iii) such other date as shall cause such payment not to be subject to such interest and additional tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial payment). With respect to payments under this Agreement, for purposes of Section 409A of the Code, each severance payment and COBRA continuation reimbursement payment shall be considered one of a series of separate payments. Any amount for which you are entitled to be reimbursed by the Company shall be reimbursed to you as promptly as reasonably practicable and in any event not later than the last day of the calendar year in which the reimbursable expenses are incurred, and the amount of such expenses eligible for reimbursement during any calendar year shall not affect the amount of expenses eligible for reimbursement in any other calendar year. It is the intention of the parties that payments or benefits payable under this Agreement not be subject to the additional tax imposed pursuant to Section 409A of the Code. To the extent such potential payments or benefits could become subject to Section 409A of the Code, the parties shall cooperate to amend this Agreement with the goal of giving you the economic benefits provided for herein in a manner that does not result in such tax being imposed. A termination of employment under this Agreement shall be deemed to occur only in circumstances that would constitute a termination of employment for purposes of Treasury Regulations section 1.409A-1(h)(1)(ii).
16. Entire Agreement. No agreement or representations, oral or otherwise, express or implied, with respect to the subject matter hereof have been made by either party which are not expressly set forth in this Agreement. This Agreement contains the complete agreement between the parties hereto and supersedes any prior understandings, agreements or representations by or between the parties, written or oral, which may have related to the subject matter hereof in any way. In addition, any agreement relating to employment of Executive by the Company, other than an incentive compensation arrangement and any awards previously made thereunder, is hereby rescinded and as of the Effective Date, together with any benefits payable thereunder, shall be null and void.
17. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Company and their affiliates, successors and assigns and shall be binding upon and inure to the benefit of the Executive and his legal representatives and assigns; provided that in no
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event shall the Executive’s obligations to perform future services for the Company be delegated or transferred by the Executive without the prior written consent of the Company (which consent may be withheld in their sole discretion). It is not the intent of the parties that there be any third party beneficiaries of this Agreement, except as expressly provided in this Agreement. In connection with a merger, consolidation or transfer or sale of all or substantially all of the assets of the Company, the Company may assign or transfer its rights hereunder to any of its affiliates or to a successor entity.
18. Amendment and Waiver. Any provision of this Agreement may be amended, waived or terminated only in writing and signed by the Company and the Executive. No waiver of any provision hereunder or any breach or default thereof shall extend to or affect in any way any other provision or prior or subsequent breach or default. No course of dealing between the parties shall be deemed to affect or to modify, amend or discharge any provision or term of this Agreement. No delay on the part of the Company or the Executive in the exercise of any of their respective rights or remedies shall operate as a waiver thereof, and no single or partial exercise by the Company or the Executive of any such right or remedy shall preclude other or further exercises thereof. A waiver of right or remedy on any one occasion, or with regard to one provision, shall not be construed as a bar to, or waiver of, any such right or remedy on any other occasion or with regard to any other provision.
19. Governing Law; Jurisdiction; Venue. All matters relating to the interpretation, construction, validity and enforcement of this Agreement shall be governed by and construed in accordance with the domestic laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of laws of any jurisdiction other than the State of New York. Except as otherwise specifically provided herein, the Executive and the Company each hereby irrevocably submits to the exclusive jurisdiction of the United States District Court for the Southern District of New York (or, if subject matter jurisdiction in that court is not available, in any state court located within Manhattan, New York) over any dispute arising out of or relating to this Agreement. Except as otherwise specifically provided in this Agreement, the parties undertake not to commence any suit, action or proceeding arising out of or relating to this Agreement in a forum other than a forum described above; provided, however, that nothing herein shall preclude the Company or the Executive from bringing any suit, action or proceeding in any other court for the purposes of enforcing the provisions of this Section 19 or enforcing any judgment obtained by the Company. The agreement of the parties to the forum described in this Section 19 is independent of the law that may be applied in any suit, action, or proceeding and the parties agree to such forum even if such forum may under applicable law choose to apply non-forum law. The parties hereby waive, to the fullest extent permitted by applicable law, any objection which they now or hereafter have to personal jurisdiction or to the laying of venue of any such suit, action or proceeding brought in an applicable court described in this Section 19, and the parties agree that they shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court. The parties agree that, to the fullest extent permitted by applicable law, a final and non-appealable judgment in any suit, action or proceeding brought in any applicable court described in this Section 19 shall be conclusive and binding upon the parties and may be enforced in any other jurisdiction.
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20. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement; provided, that if a court having competent jurisdiction shall find that the covenant contained in Section 13 is not reasonable, such court shall have the power to reduce the duration and/or geographic area and/or scope of such covenant, and the covenant shall be enforceable in this reduced form.
21. Jury Trial. Each of the parties hereto herby irrevocably waives all rights to trial by jury in any action, proceeding or counterclaim arising out of or relating to this Agreement.
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22. No Strict Construction. The language used in this Agreement shall be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction shall be applied against any party.
23. Notice. All notices, demands and other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt), (b) three (3) business days after sent by e-mail (with such communication to be in PDF format), with electronic confirmation of sending, provided that a copy is sent on the same day by registered mail, return receipt requested, in each case to the appropriate mailing and e-mail addresses set forth below (or to such other mailing and e-mail addresses as either party may designate by notice to the other party in accordance with this provision), or (c) when actually delivered if sent by any other method that results in delivery (with written confirmation of receipt):
| Notices to Holdings: | ||
| Broadview Networks Holdings, Inc. | ||
| 000 Xxxxxxxxxxx Xxxxxx | ||
| 0xx Xxxxx, Xxxxx X000 | ||
| Xxx Xxxxx, XX 00000 | ||
| Attention: | Chair, Board of Directors | |
| Phone: | (000) 000-0000 | |
| -and- | ||
| Broadview Networks Holdings, Inc. | ||
| 000 Xxxxxxxxxxx Xxxxxx | ||
| 0xx Xxxxx, Xxxxx X000 | ||
| Xxx Xxxxx, XX 00000 | ||
| Attention: | Chair, Compensation Committee | |
| Phone: | (000) 000-0000 | |
| Notices to Executive: | ||
| Xxxxx X. Xxxxxx | ||
| 0 Xxxxxx Xxxx Xxxx | ||
| Xxxxxxxxxx, XX 00000 | ||
| Phone: 000-000-0000 | ||
| Email: | ||
Either party to this Agreement may change its or his address of record by providing written notice to the other party as provided in this Section.
24. Captions. The headings and captions used in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. The use of the word “including” herein means “including without limitation.”
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25. Counterparts. This Agreement may be executed in multiple counterparts and by facsimile, any one of which need not contain the signatures of more than one party, but all such counterparts taken together shall constitute one and the same effective and enforceable instrument.
[Balance of Page Intentionally Blank]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above written.
| COMPANY: | ||
| BROADVIEW NETWORKS HOLDINGS, INC. | ||
| By: |
| |
| Name: | Xxxxxxx X. Xxxxxxxx | |
| Its: | Chief Executive Officer & President | |
| THE EXECUTIVE | ||
|
| ||
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EXHIBIT A
BROADVIEW NETWORK HOLDINGS, INC.
ANNUAL INCENTIVE PLAN
TERM SHEET – XXXXX X. XXXXXX
The Compensation Committee of the Board of Directors has adopted an Annual Incentive Plan (“AIP”) for management with the following elements:
1. The Target Bonus shall equal seventy percent (70%) or more of the annual salary of the applicable participant.
2. The amount of bonus payable shall be determined by reference to financial metrics for the Company established by the Compensation Committee for each fiscal year and by reference to individual performance targets established by the Compensation Committee or its designee with respect to the applicable participant. The financial metrics shall consist of Adjusted EBITDA, Free Cash Flow and Revenue (as defined in the AIP) and the Compensation Committee is authorized to give such weight to these metrics as they shall determine for each participant.
3. No amount of bonus will be payable if a prescribed minimum threshold of the target for Adjusted EBITDA is not achieved.
4. The Compensation Committee retains discretion to make AIP payments in excess of the amount provided in the AIP.
5. For the COO in fiscal year 2012, the financial metrics and individual performance metrics shall have the following weightings:
| • Adjusted EBITDA - |
60 | % | ||
| • Free Cash Flow - |
15 | % | ||
| • Revenue - |
15 | % | ||
| • Individual - |
10 | % |
6. For the COO in fiscal year 2012, the prescribed minimum threshold target for the Adjusted EBITDA metric is 75% of the amount of the Adjusted EBITDA target. For the COO if any bonus is paid, the minimum and maximum bonus payments shall be 75%) and 125% of the Target Bonus, respectively.
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EXHIBIT B
BROADVIEW NETWORK HOLDINGS, INC.
TRANSACTION BONUS PLAN
XXXXX X. XXXXXX
Xxxxx X. Xxxxxx has been granted a fifteen percent (15%) interest in the bonus pool to be established under the Transaction Bonus Plan, as approved from time to time by the Company.
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EXHIBIT C
RELEASE
(INDIVIDUAL TERMINATION)
[The language in this Release may change based on legal developments and evolving best practices; this form is provided as an example of what will be included in the final Release document]
Certain capitalized terms used in this Release are defined in the NEO Employment Agreement (the “Agreement”) which I have executed and of which this Release is a part.
I hereby confirm my obligations under Section 13 of the Agreement.
Except as otherwise set forth in this Release, I hereby release, acquit and forever discharge the Company, its parents and subsidiaries, and their officers, directors, agents, servants, employees, shareholders, successors, assigns and affiliates, of and from any and all claims, liabilities, demands, causes of action, costs, expenses, attorneys fees, damages, indemnities and obligations of every kind and nature, in law, equity, or otherwise, known and unknown, suspected and unsuspected, disclosed and undisclosed (other than any claim for indemnification I may have as a result of any third party action against me based on my employment with the Company), arising out of or in any way related to agreements, events, acts or conduct at any time prior to the date I execute this Release, including, but not limited to: all such claims and demands directly or indirectly arising out of or in any way connected with my employment with the Company or the termination of that employment, including but not limited to, claims of intentional and negligent infliction of emotional distress, any and all tort claims for personal injury, claims or demands related to salary, bonuses, commissions, stock, stock options, or any other ownership interests in the Company, vacation pay, fringe benefits, expense reimbursements, severance pay, or any other form of disputed compensation; claims pursuant to any federal, state or local law or cause of action including, but not limited to, the federal Civil Rights Act of 1964, as amended; the federal Age Discrimination in Employment Act of 1967, as amended (“ADEA”); the federal Employee Retirement Income Security Act of 1974, as amended; the federal Americans with Disabilities Act of 1990; tort law; contract law; statutory law; common law; wrongful discharge; discrimination; fraud; defamation; emotional distress; and breach of the implied covenant of good faith and fair dealing; provided, however, that nothing in this paragraph shall be construed in any way to release the Company from its obligation to indemnify me pursuant to the Company’s indemnification obligation pursuant to agreement or applicable law.
[INCLUDE IF EXECUTIVE IS AGE 40 OR OLDER AT TIME OF TERMINATION: I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have under ADEA. I also acknowledge that the consideration given under the Agreement for the waiver and release in the preceding paragraph hereof is in addition to anything of value to which I was already entitled. I further acknowledge that I have been advised by this writing, as required by the ADEA, that: (A) my waiver and release do not apply to any rights or claims that may arise on or after the date I execute this Release; (B) I have the right to consult with an attorney prior to executing this Release; (C) I have twenty-one (21) days to consider this Release (although I may choose to voluntarily execute this Release earlier); (D) I have seven (7) days following the execution of this Release by the parties to revoke the Release; and (E) this Release shall not be effective until the date upon which the revocation period has expired, which shall be the eighth day after this Release is executed by me.]
| EXECUTIVE | ||
| Signature: |
| |
| Name: |
Xxxxx X. Xxxxxx | |
| Date: |
| |
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