Employment Agreement [Amendment No. 1] - Talk.com Inc. and Kenneth G. Baritz
AMENDMENT NO. 1 to
EMPLOYMENT AGREEMENT
THIS AMENDMENT NO. 1 ("Amendment") dated as of March 28, 2001, entered
into by and among Talk.com Inc., a Delaware corporation (the "Company"), and
Kenneth G. Baritz ("Employee").
W I T N E S S E T H :
WHEREAS, the Company and Employee are parties to an Employment
Agreement dated as of March 24, 2000 (the "Agreement") pursuant to which the
Company employs Employee as its President; and
WHEREAS, the Company and Employee desire to amend the Agreement as
provided herein.
NOW THEREFORE, in consideration of the foregoing, the mutual covenants
set forth herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the undersigned hereby agree as
follows:
1. The Agreement is hereby amended to add the following after Section 4.5:
4.6 TERMINATION AFTER CHANGE IN CONTROL.
4.6.1 If a Change of Control shall occur during the Term of
this Agreement, the term of Employee's employment hereunder shall continue in
effect until the later of the first anniversary of the date of the Change in
Control and the date that the Term would otherwise have terminated without
regard to the extension in this sentence, except for earlier termination as
provided in Section 6 of this Agreement. The rights and obligations of Employee
and Company under this Agreement upon or after any termination of the Term shall
survive any such termination.
4.6.2 Notwithstanding the provisions of Section 6 hereof, if a
Change in Control has occurred and Employee's employment hereunder is terminated
within one year of such Change in Control: (i) by Employee for Good Reason or
(ii) by Company without Cause, then Company shall (a) pay to Employee the Base
Salary and Benefits through the date of termination plus all amounts due to
Employee pursuant to any Due Bonus; (b) pay to Employee, as severance pay, a
lump sum amount equal to the sum of (x) twenty-four months' Base Salary plus (y)
an amount equal to the average annual incentive bonus earned by Employee from
Company during the last four (4) completed fiscal years of Company preceding the
date of Change in Control, or if Employee was not an officer during any or all
of such prior four (4) fiscal years, the average of the incentives received
during the fiscal years when Employee was such an officer; (c) for a period of
two years after the date of termination, arrange to provide Employee with life,
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disability, sickness and accident, health, vision and dental insurance benefits
substantially similar to those that Employee was entitled prior to the Change in
Control, as well as with the other fringe benefits and perquisites to which
Employee was entitled pursuant to Section 4.3; and (d) reimburse Employee for
expenses that may have been incurred, but which have not been paid as of the
date of termination, subject to the requirements of Section 4.4 hereof."
2. The first sentence of Section 6 is hereby amended to read as follows:
"Except as provided in Section 4.6, in the event that Employee's employment
hereunder terminates prior to the end of the Term, Company shall make payments
to Employee as set forth below:"
IN WITNESS WHEREOF, each of the parties hereto has executed this
Amendment as of the day and year first written above.
TALK.COM INC. EMPLOYEE
By: /s/ /s/
--------------------------------- ------------------------------------
Name: Aloysius T. Lawn IV Kenneth G. Baritz
Title: EVP - General Counsel
and Secretary
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