Employment Agreement - Net2Phone Global Services LLC and Bryan Wiener
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is made as of November 25, 2003 (this
"Agreement"), by and among Net2Phone Global Services, LLC, a Delaware limited
liability company (the "Company") and Bryan Wiener (the "Executive").
W I T N E S S E T H:
WHEREAS, the Company wishes to assure itself of the services of the
Executive and the Executive and the Company are willing to enter into an
agreement to that end, upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the promises, agreements and
undertakings of the parties made herein, the receipt and sufficiency of which
are hereby acknowledged, the parties hereby covenant and agree as follows:
1. Employment
The Company hereby agrees to employ the Executive, and the Executive
hereby agrees to accept employment with the Company, on and subject to the terms
and conditions of this Agreement.
2. Term
Unless earlier terminated pursuant to Section 5 hereof, the period of
this Agreement and the Executive's employment hereunder (the "Agreement Term")
shall be deemed to have commenced as of August 1, 2003 (the "Effective Date")
and shall expire on the third anniversary of the Effective Date; provided,
however, that the Agreement Term shall be automatically extended for an
additional year commencing on the third anniversary of the Effective Date,
unless written notice of non-extension is provided by either party to the other
party at least 90 days prior to such third anniversary of the Effective Date.
Thereafter, the Agreement Term shall be automatically extended for successive
additional one year terms, unless written notice of non-extension is provided by
either party to the other party at least 90 days prior to the commencement of
such final year of the then current term.
3. Position, Authority and Responsibilities
(a) The Executive shall serve as, and with the title, office
and authority of President of the Company, Head of Sales and Marketing with
responsibility for all marketing, sales and business development activities of
the Company and with all business units reporting to him.
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(b) The Executive shall have all of the powers, authority,
duties and responsibilities usually incident to his position and office.
(c) The Executive agrees to devote substantially all of his
business time, efforts and skills to the performance of his duties and
responsibilities under this Agreement; provided, however, that nothing in this
Agreement shall preclude the Executive from (i) serving on corporate, civic or
charitable boards or committees, (ii) delivering lectures, fulfilling charitable
engagements or teaching at educational institutions and/or (iii) managing his
personal investments, provided that in any such case that such activities do not
materially interfere with the Executive's performance of his duties and
responsibilities hereunder and do not violate the provisions of Section 10
hereof.
(d) The Executive shall perform his duties at the principal
offices of the Company located in Newark, New Jersey, but from time to time the
Executive may be required to travel to other locations in the proper conduct of
his responsibilities under this Agreement.
(e) The Executive shall serve, at the pleasure of the Company,
as a member of the Board of Managers of the Company (the "Board of Managers" or
the "Managers of the Company" or "Board"). The Board of Managers shall consist
of three (3) managers ("Managers"), unless otherwise determined by the Members
of the Company. The Executive and Messrs. Jonathan Reich and David Lando shall
initially serve as the Managers.
4. Compensation
In consideration of the services rendered by the Executive during the
Agreement Term, the Company shall pay or provide the Executive the amounts and
benefits set forth below
(a) Salary. The Company shall pay the Executive an annual base
salary (the "Base Salary") initially in the amount of $220,000.00. The
Executive's Base Salary shall be paid in arrears in substantially equal
installments at monthly or more frequent intervals, in accordance with the
normal payroll practices of the Company. The Executive's Base Salary shall be
reviewed at least annually (based upon July 31 fiscal year) by the Member of the
Company, in accordance with the Company's Operating Agreement, for consideration
of appropriate merit increases. The Base Salary shall not be decreased during
the Agreement Term from the rate then in effect.
(b) Bonus Provisions. The Company shall pay the Executive a
mutually agreed-upon annual bonus for each year after the 1st year (the "Annual
Bonus"). For the first year, in lieu of bonus, unless otherwise mutually agreed
to, the Executive will remain on the same quarterly commission arrangement with
the Company as was in effect for the fiscal year ended July 31, 2003 with
Net2Phone, Inc. The Annual Bonus, if any, shall be earned as of the last day of
each fiscal year of the Company and shall be paid to the Executive no later than
in the first regular pay period of the Company that occurs after the end of the
first fiscal quarter of the year that immediately follows the year in which the
Annual Bonus was earned, notwithstanding any expiration of this Agreement as of
the last day of such year or termination of the Executive's employment prior to
payment. Upon renewal of this Agreement, the parties will agree as to the
formula for calculating the Annual Bonus for the applicable renewal term.
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(c) Equity Incentives. (i) Except as otherwise provided in
this Agreement, the treatment of options to purchase shares of the Common Stock
of Net2Phone, Inc. ("Common Stock") granted to the Executive prior to the
Effective Date under the Net2Phone, Inc. stock incentive plans shall be governed
by the applicable stock option or other agreements relating to the same
presently in effect.
(ii) Net2Phone will grant to Executive options
("Options") to purchase 105,000 shares of the Net2Phone common stock, par value
$.01 per share, with an exercise per share equal to the per share fair market
value of the Net2Phone common stock on the Grant Date. So long as Executive
remains employed by the Company or any of its affiliates, the Executive's right
to exercise the Options shall become vested as follows:
a. For each year of the original three years of the term
of this Agreement that Company shall meet its Target
(as hereinafter defined), options to purchase 35,000
shares shall vest. With the exception of the year
ended July 31, 2004, if the Company shall fail to
meet its Target for a particular year, the options
eligible for vesting for such year shall be deemed to
lapse. As to the year ended July 31, 2004, if the
Company shall fail to meet its Target for such year
but the Company's Segment Loss shall not exceed the
Secondary Target for such year, the 35,000 options
otherwise eligible for vesting for such year shall
not lapse but shall be added to the 35,000 options
eligible for vesting for the year ended July 31, 2005
upon the Company achieving its Target for such year.
b. For purposes of this Agreement, Target shall mean the
fiscal year Segment Income or (Loss) of the Company
as reported in the regulatory filings of Net2Phone,
adjusted by adding back all corporate allocations and
subtracting all capital expenses for such year. The
final and binding determination as to whether or not
a Target has been achieved shall be made by the Chief
Financial Officer of Net2Phone.
c. The Targets for the three year vesting Period are as
follows:
Year ended July 31, 2004-- $ 800,000.00
Year ended July 31, 2005-- $1,500,000.00
Year ended July 31, 2006-- $5,000,000.00
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d. The Secondary Target for the year ended July 31, 2004
is a Segment Loss not greater than $3,700,000.00.
(iii) The Executive shall be entitled to receive such
additional awards of stock options or other equity
incentives as are determined by Company or Net2Phone from
time to time.
(d) Employee Benefits. The Executive shall be entitled to
participate in all employee benefit plans, programs, practices or other
arrangements of the Company comparable to the plans, programs, practices, or
other arrangements in which senior executives of Net2Phone, Inc. are generally
eligible to participate from time to time, including, without limitation, any
qualified or non-qualified pension, profit sharing and savings plans, any death
benefit and disability benefit plans, and any medical, dental, health and
welfare plans, except to the extent that a separate arrangement is implemented
for the Executive on terms no less favorable than as provided to the other
senior executives agreed to by the Executive that is intended to replace any
such general arrangement. Without limiting the generality of the foregoing, (i)
the Company shall continue to provide the Executive with life insurance coverage
with a death benefit that is not less than the amount as is in effect as of the
Effective Date and (ii) the Company shall provide the Executive with disability
insurance coverage consistent with the disability insurance coverage provided to
other senior executives of the Net2Phone, Inc. Net2Phone, Inc. shall permit the
Executive (and with respect to certain plans, other employees of the Company) to
participate in Net2Phone, Inc. plans, programs, practices, or other arrangements
that are generally made available to employees of Net2Phone, Inc. and its
subsidiaries and as are designated by the Company to be made available to the
Executive.
(e) Fringe Benefits and Perquisites. The Executive shall be
entitled to all fringe benefits and perquisites that are generally made
available to senior executives of the Company from time to time on the same
basis as is made available to such other executives. Without limiting the
generality of the foregoing, the Company shall provide the Executive with the
following:
(i) Executive offices and support staff appropriate
to the Executive's position;
(ii) Prompt reimbursement of all reasonable travel
and other business expenses and disbursements incurred by the Executive in the
performance of his duties under this Agreement in accordance with the Company's
normal practices and procedures, including professional association dues upon
proper accounting therefore;
(iii) Paid vacation during each calendar year, to be
taken in an amount equal to and in accordance with the Company's vacation policy
for senior executives;
(iv) An automobile allowance consistent with the
automobile allowance policy for the Company's senior executive officers; and
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(v) Such other fringe benefits as the Executive and
the Board of Managers may mutually agree upon from time to time.
5. Termination of Employment
The Agreement Term and the Executive's employment hereunder shall be
terminated upon the happening of any of the following events:
(a) Termination for Cause. The Company, by the vote of its
Member(s), may terminate the Agreement Term and the Executive's employment
hereunder for Cause. For purposes of this Agreement, "Cause" shall mean:
(i) conviction of the Executive, by a court of
competent jurisdiction, of, or Executive's plea of guilty or nolo contendere to,
a felony under the laws of the United States or any state thereof;
(ii) misappropriation by the Executive of the
Company's funds;
(iii) the commission by the Executive of an act of
proven fraud with respect to the Company; or
(iv) material breach by Executive of the terms and
conditions of this Agreement.
Notwithstanding the foregoing, in no event shall the Company be
considered to have terminated the Executive's employment for "Cause" unless and
until (i) the Executive receives written notice from the Member(s) identifying
in reasonable detail the acts or omissions constituting such "Cause" and the
provision of this Agreement relied upon by the Company for such termination and
(ii) provided that the acts or omissions are susceptible of cure, such acts or
omissions are not cured by the Executive within 30 days of the Executive's
receipt of such notice.
(b) Termination other than for Cause. The Company, by
majority vote of its Member(s), shall have the right to terminate the Agreement
Term and the Executive's employment hereunder for any reason at any time,
including for any reason that does not constitute Cause subject to the
consequences of such termination as set forth in this Agreement.
(c) Resignation for Good Reason. The Executive may voluntarily
terminate the Agreement Term and his employment hereunder for Good Reason. For
purposes of this Agreement, "Good Reason" shall mean:
(i) any action by the Company or Net2Phone that
results in a material diminution of the Executive's authority or
responsibilities;
(ii) any material adverse modification of the
Executive's positions, titles or reporting relationships;
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(iii) any failure by the Company or Net2Phone, Inc.
to comply with the compensation, option and benefits provisions of Section 4
hereof or any other material breach of this Agreement by the Company;
(iv) the relocation, without the Executive's written
consent, of the Executive's principal office from Newark, New Jersey; or
(v) any failure by the Company to obtain an
assumption of this Agreement by a successor corporation as required under
Section 11(a) hereof.
In no event shall the Executive be considered to have terminated his
employment for "Good Reason" unless and until (i) Net2Phone, Inc. receives
written notice from the Executive identifying in reasonable detail the acts or
omissions constituting such "Good Reason" and the provision of this Agreement
relied upon by the Executive for such termination, and (ii) provided that the
same are susceptible of cure, such acts or omissions are not cured by Net2Phone,
Inc. or the Company within 30 days of Net2Phone, Inc.'s receipt of such notice.
(e) Resignation other than for Good Reason. The Executive may
voluntarily terminate the Agreement Term and his employment hereunder at any
time for any reason, including for any reason that does not constitute Good
Reason by giving the Company 30-days advance written notice of such termination.
(f) Termination Due to Disability. The Company, by vote of its
Member(s), may terminate the Agreement Term and the Executive's employment
hereunder upon the Executive's Disability. For purposes of this Agreement,
"Disability" shall mean the inability of the Executive to perform his duties to
the Company on account of physical or mental illness for a period of six
consecutive full months, or for a period of nine full months during any 18-month
period. The Executive's employment shall terminate in such case on the last day
of the applicable period following written notice by the Member(s) of the
election to terminate the Executive's employment due to the Executive's
Disability. Notwithstanding the foregoing, in no event shall the Executive be
terminated by reason of Disability unless the Executive is eligible to begin
receiving long-term disability benefits from a Company-sponsored long-term
disability plan.
(g) Termination Due to Death. The Agreement Term and the
Executive's employment hereunder shall terminate upon his death.
6. Compensation Upon Termination of Employment
Notwithstanding any provision of this Agreement to the contrary, in the
event the Agreement Term and the Executive's employment by the Company is
terminated, the Executive shall be entitled to the compensation and severance
benefits set forth below:
(a) Resignation for Good Reason; Termination without Cause. In
the event the Agreement Term and the Executive's employment hereunder is
terminated by the Executive for Good Reason or by the Company for any reason
other than for Cause, Disability or death, the Company shall pay to the
Executive and provide him with the following:
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(i) Severance Payment. The Company shall pay the
Executive a lump sum cash amount on or as soon as practicable following the
Executive's termination of employment in an amount equal to the greater of (x)
his then current annual Base Salary (i.e., one (1) year of Base Salary) or (y)
his then current Base Salary for the remainder of the then current term of this
Agreement. In addition, for the applicable period (i.e., the greater of one (1)
year or the remainder of the then current term) the Executive shall be entitled
to receive cash payments, at the time and in a manner consistent with the
Company's payment of annual bonuses, of amounts equal to the Annual Bonuses that
would have been otherwise payable to the Executive for such periods if his
employment had not been terminated, if and only if such bonus(es) are earned
under the bonus plan in place immediately prior to the Executive's termination.
(ii) Accrued Rights. The Company shall pay the
Executive a lump-sum cash amount, within 10 days of the date of termination,
equal to the sum of (A) his earned but unpaid Base Salary through the date of
termination, (B) any earned but unpaid Annual Bonus for any completed fiscal
year, and (C) any unreimbursed business expenses or other amounts due to the
Executive from the Company as of the date of termination. In addition, the
Company shall provide to the Executive all payments, rights and benefits due as
of the date of termination under the terms of the Company's compensation or
benefit plans, programs or awards (together with the lump-sum payment under (A),
(B) and/or (C) above , the "Accrued Rights").
(iii) Continued Benefits. Subject to Section 8
hereof, for a two-year period following the date of termination, the Company
shall continue to provide the Executive and his eligible dependents, at its sole
cost, with the medical, dental, disability and life insurance coverages
("Welfare Benefits") that were provided to the Executive immediately prior to
termination of employment.
(iv) Stock Options. Notwithstanding the provisions of
any stock incentive plan or award agreement between Net2Phone, Inc. and the
Executive to the contrary, (A) 100% of the Executive's options to purchase
Common Stock of Net2Phone, Inc. which are not fully vested and exercisable as of
the date of termination shall become fully vested and exercisable and (B) the
period during which all non-exercised options held by the Executive shall remain
exercisable shall be extended until the tenth anniversary dates of their
respective dates of grant. All such award agreements shall be amended by
Net2Phone, Inc. (or the Compensation Committee of Net2Phone, Inc.) and the
Executive to reflect the foregoing provisions.
(v) Car Allowance. Until the first anniversary of the
date of termination, the Company shall continue to provide the Executive with
the automobile allowance described in Section 4(f)(iv) hereof.
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(b) Resignation without Good Reason; Termination for Cause. In
the event the Executive voluntarily terminates the Agreement Term and his
employment hereunder other than for Good Reason, or in the event the Agreement
Term and the Executive's employment hereunder is terminated by the Company for
Cause, the Company shall pay and provide to the Executive all Accrued Rights to
the date of termination and the Executive shall retain any rights that he has
pursuant to any stock option agreement with Net2Phone, Inc., except that the
period for the exercise of any vested stock options shall end on the 90th day
following the termination of employment.. All unvested options shall be
immediately cancelled.
(c) Disability; Death. In the event the Agreement Term and the
Executive's employment hereunder is terminated by reason of the Executive's
Disability or death, the Company shall pay the Executive (or his legal
representative) and provide him with the following:
(i) Severance Payment. The Company shall pay the
Executive (or his legal representative) a lump sum cash amount on or within ten
(10) days following the Executive's termination of employment an amount equal to
his then current Base Salary (i.e., one (1) year of Base Salary). In addition,
the Executive (or his legal representative) shall be entitled to receive one
cash payment, at the time and in a manner consistent with the Company's payment
of annual bonuses, of an amount equal to the Executive's Annual Bonus calculated
in accordance with Section 4(b) hereof, but only to the extent that the Annual
Bonus would have been earned by Executive under the bonus arrangement in place
immediately prior to the termination of the Executive's employment.
(ii) Accrued Rights. The Company shall pay the
Executive a lump-sum cash amount, within 10 days of the date of termination,
equal to the Accrued Rights.
(iii) Continued Benefits. Subject to Section 8
hereof, for a one-year period following the date of termination, the Company
shall continue to provide the Executive and his eligible dependents, at its sole
cost, with the Welfare Benefits that were provided to the Executive immediately
prior to termination of employment.
(iv) Stock Options. The Company and Net2Phone, Inc.
shall provide the Executive with the benefits set forth in Section 6(a)(iv).
7. Indemnification
The Company and Net2Phone, Inc. agree to provide to the Executive all
rights of indemnification to the fullest extent permitted by law and by the
Company's Operating Agreement and Net2Phone, Inc.'s Certificate of Incorporation
and By laws as well as advancement of attorneys' fees and costs as incurred
during the pendency of a claim or action. The Company agrees to maintain
directors' and officers' insurance for the benefit of the Executive providing
coverage identical to that provided to other senior executive officers of
Net2Phone, Inc., which may be purchased through Net2Phone, Inc.. The
indemnification and directors' and officers' coverage shall extend to actions
and services undertaken or performed by the Executive or omissions, not only as
an employee of the Company and prior thereto Net2Phone, Inc., but as an
employee, agent, director or consultant of any other entity for which the
Executive renders services at the request of Company.
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8. No Mitigation or Offset
The Executive shall not be required to seek other employment or to
reduce any severance benefit payable to him under Section 6 hereof, and no such
severance benefit shall be reduced on account of any compensation received by
the Executive from other employment; provided, however, to the extent that the
Executive becomes eligible to receive welfare benefits pursuant to employee
benefit plans of a new employer that are comparable to the Welfare Benefits that
the Company is obligated to provide to the Executive pursuant to Sections
6(a)(iii) and 6(c)(iii), the Company's obligation to provide such Welfare
Benefits shall cease. The Company's obligations to the Executive under this
Agreement, including, without limitation, any obligation to provide severance
benefits, shall not be subject to set-off or counterclaim in respect of any
debts or liabilities of the Executive to the Company.
9. Tax Withholding; Method of Payment
All compensation payable pursuant to this Agreement shall be subject to
reduction by all applicable withholding, social security and other federal,
state and local taxes and deductions for income, employment, excise and other
taxes. Any lump-sum payments provided for in Section 6 hereof shall be made in a
cash payment, net of any required tax withholding, no later than 10 business
days following the Executive's date of termination.
10. Restrictive Covenants
(a) Confidential Information. During the Agreement Term and at
all times thereafter, the Executive agrees that he will not divulge to anyone
(other than the Company or any persons employed or designated by the Company)
any knowledge or information of a confidential or proprietary nature relating to
the business of the Company or any of its subsidiaries or affiliates, including,
without limitation, all trade secrets (unless readily ascertainable from public
or published information or trade sources) and confidential commercial
information, and the Executive further agrees not to disclose, publish or make
use of any such knowledge or information without the consent of the Company.
<PAGE>
(b) Non-competition. The Executive acknowledges that (i) the
Company is currently engaged in the business of providing high quality, low-cost
telephone calls over the Internet and related products and services ("Internet
Telephony"), (ii) his work for the company will give him access to trade secrets
of and confidential information concerning the Company, and (iii) the agreements
and covenants contained in this Agreement are essential to protect the business
and goodwill of the Company. Accordingly, the Executive covenants and agrees
that during the Restricted Period (defined below), the Executive shall not,
without the prior written consent of the Company, (1) engage or participate in
the business of developing, managing or operating any Internet Telephony
business (a "Competitive Business") on his own behalf or on behalf of any person
or entity, and the Executive shall not acquire a financial interest in any
Competitive Business (except for publicly traded equity interests that do not
exceed five percent (5%) of such class of equity) or (2) directly or indirectly
solicit or encourage any employee of the Company or any of its affiliates to
leave the employment of the Company or any of its affiliates. For purposes
hereof, the "Restricted Period" shall be the Agreement Term (as may be
terminated pursuant to Section 6 hereof) plus, except in the event of a
termination described in Section 6(a) hereof or the Agreement Term expires as a
result of the issuance of a notice of non-extension pursuant to Section 2
hereof, the 12-month period following any termination of the Executive's
employment hereunder. In the event of the issuance of a notice of non-extension
pursuant to Section 2, the Restricted Period shall expire on the effective date
of the termination of Executive's employment, except that, if at the time of the
issuance of the notice of non-extension, the Company shall agree to pay
Executive his salary and benefits as in effect immediately prior to the date of
termination of employment for an additional six months, the Restrictive Period
shall expire at the end of six months following the termination of the
Executive's employment. The provisions of this Section 10 (b) shall supersede
and replace any prior non-competition agreement entered into by the Executive
with Company.
(c) Non-disparagement. Following termination of the
Executive's employment, the parties covenant and agree that except as may be
required by law or authorized in advance by the other party, neither party shall
make or publish any written or oral statements or opinions regarding the other,
including its present and former employees, officers and directors.
(d) Enforcement. The Executive acknowledges and agrees that
the Company will have no adequate remedy at law, and could be irreparably
harmed, if the Executive breaches or threatens to breach any of the provisions
of Section 10 of this Agreement. The Executive agrees that the Company shall be
entitled to equitable and/or injunctive relief to prevent any breach or
threatened breach of this Section 10, and to specific performance of each of the
terms of this Section in addition to any other legal or equitable remedies that
the Company may have. The Executive further agrees that he shall not, in any
equity proceeding relating to the enforcement of the terms of this Section 10,
raise the defense that the Company has an adequate remedy at law.
11. Successors and Assigns
(a) This Agreement shall be binding upon and shall inure to
the benefit of the Company, its successors and any person or other entity that
succeeds to all or substantially all of the business, assets or property of the
Company. To the extent not otherwise provided by application of law, the Company
will require any successor (whether direct or indirect, by purchase, merger,
consolidation, transfer or otherwise) to all or substantially all of the
business, assets or property of the Company, to expressly assume and agree to
perform the obligations of the Company under this Agreement in the same manner
and to the same extent that the Company is required to perform hereunder. As
used in this Agreement, the "Company" shall mean the Company as hereinbefore
defined and any successor to its business, assets or property as aforesaid which
executes and delivers an agreement provided for in this Section 11(a) or which
otherwise becomes bound by all the terms and provisions of this Agreement by
operation of law. Except as provided by the foregoing provisions of this Section
11(a), this Agreement shall not be assignable by the Company without the prior
written consent of the Executive. In the event that this Agreement is assigned
to any person or entity as may be permitted hereunder, each of the Company and
Net2Phone, Inc. shall be secondarily liable in the event that any such person or
entity shall fail to satisfy its obligations under Section 4, 6 or 7 hereof.
<PAGE>
(b) This Agreement and all rights of the Executive hereunder
shall inure to the benefit of and be enforceable by the Executive and the
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If the Executive should
die while any amounts are due and payable to the Executive hereunder, all such
amounts, unless otherwise provided herein, shall be paid to the Executive's
designated beneficiary or, if there is no such designated beneficiary, to the
legal representatives of the Executive's estate. This Agreement is personal in
nature and the obligations of the Executive hereunder are not be assignable to
any person.
12. Entire Agreement/Amendment
This Agreement contains the entire understanding of the parties with
respect to the subject matter hereof and, except as specifically provided
herein, cancels and supersedes any and all other agreements between the parties
with respect to the subject matter hereof, including but not limited to the
letter agreements dated March 14, 2000 and December 16, 2002. Any amendment or
modification of this Agreement shall not be binding unless in writing and signed
by the parties hereto.
13. Severability/No Waiver
(a) In the event that any provision of this Agreement is
determined to be invalid or unenforceable, the remaining terms and conditions of
this Agreement shall be unaffected and shall remain in full force and effect,
and any such determination of invalidity or unenforceability shall not affect
the validity or enforceability of any other provision of this Agreement.
(b) The failure of a party to insist upon strict adherence to
any term of this Agreement on any occasion shall not be considered a waiver of
such party's rights or deprive such party of the right thereafter to insist upon
strict adherence to that term or any other term of this Agreement.
14. Notices
All notices which may be necessary or proper for either the Company or
the Executive to give to the other shall be in writing and shall be delivered by
hand or sent by registered or certified mail, return receipt requested, or by
air courier, to the Executive at:
and shall be sent in the manner described above to the Chief Executive Officer
of Nety2Phone, Inc. at its principal executives offices at:
Net2Phone, Inc.
520 Broad Street
Newark, NJ 07102
and shall be deemed given when dispatched, provided that any notice required
under Section 5 hereof or notice given pursuant to Section 2 hereof shall be
deemed given only when received. Any party may by like notice to the other party
change the address at which he or they are to receive notices hereunder.
<PAGE>
15. Governing Law
This Agreement shall be governed by and enforceable in accordance with
the laws of the State of New Jersey, without giving effect to the principles of
conflict of laws thereof.
16. Arbitration
Except for any action brought under Section 10 which may be brought by
the Company directly in any court of competent jurisdiction, any controversy or
claim arising out of, or related to, this Agreement, or the breach thereof,
shall be settled by binding arbitration in the City of Newark, New Jersey in
accordance with the rules then obtaining of the American Arbitration
Association, and the arbitrator's decision shall be binding and final, and
judgment upon the award rendered may be entered in any court having jurisdiction
thereof.
17. Legal Fees and Expenses
The Company shall pay the legal fees and expenses incurred by the
Executive in connection with the negotiation of this Agreement. To provide the
Executive with reasonable assurance that the purposes of this Agreement will not
be frustrated by the cost of its enforcement, the Company shall pay and be
solely responsible for any attorneys' fees and expenses and any court or
arbitration costs incurred by the Executive as a result of a claim that the
Company has breached or otherwise failed to perform this Agreement or any
provision hereof regardless of which party, if any, prevails in the contest.
<PAGE>
18. Counterparts
This Agreement may be signed in counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument.
IN WITNESS WHEREOF, the Company and the Executive have executed this
Agreement as of the date first written above.
EXECUTIVE
/s/ Bryan Wiener
------------------------------------
NET2PHONE, GLOBAL SERVICES, LLC
By: /s/ Jonathan Reich
---------------------------------
Name: Jonathan Reich
For the sole purpose of complying
with the obligations set forth in
Sections 4(c), 4(d), 6(a)(iv),
6(c)(iv), 7, and 11(a).
NET2PHONE, INC.
By: /s/ Stephen Greenberg
--------------------------------
Name: Stephen Greenberg