Employment Agreement [Amendment No. 1] - Talk.com Inc. and Gabriel Battista
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
Gabriel Battista ("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 November 13, 1998 (the "Agreement") pursuant to which the
Company employs Employee as its Chairman of the Board of Directors and Chief
Executive Officer; 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. Section 2 of the Agreement is hereby amended in its entirety to read as
follows:
"2. TERM OF AGREEMENT. The term of Employee's employment hereunder shall
commence on or prior to December 31, 1998 (the date when Employee commences
employment hereunder, the "Commencement Date") and shall continue in effect for
a period of six years thereafter, except as hereinafter provided (the "Term")."
2. Section 4.1 of the Agreement is hereby amended in its entirety to read as
follows:
"4.1 BASE SALARY. During the Term, Company shall pay to Employee a base salary
("Base Salary") at the rate of five hundred thousand dollars ($500,000) per
year, which Base Salary shall be paid to Employee commencing on January 1, 2002
in accordance with the Company's usual and customary payroll practices. The Base
Salary for the period beginning on the Commencement Date and ending on December
31, 2001 has been previously paid to Employee by the Company and remains subject
to the other terms of this Agreement."
3. The last sentence of Section 4.8(a) of the Agreement is hereby amended to
read as follows: "For purposes of this Agreement, "Change in Control" shall have
the meaning set forth in Section 4.12 below."
<PAGE>
4. The Agreement is hereby amended to insert the following after Section 4.11 of
the Agreement:
"4.12. Change in Control.
4.12.1 Change in Control. For purposes of this Agreement,
"Change in Control" shall be deemed to have occurred if:
4.12.1.1 any Person (as defined in Section 3(a)(9) under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")), other than
Company or any Significant Subsidiary (as defined below), becomes the Beneficial
Owner (as defined in Rule 13d-3 under the Exchange Act; provided, that a Person
shall be deemed to be the Beneficial Owner of all shares that any such Person
has the right to acquire pursuant to any agreement or arrangement or upon
exercise of conversion rights, warrants, options or otherwise, without regard to
the 60-day period referred to in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of Company or any Significant Subsidiary (as defined
below) representing 50% or more of the combined voting power of the Company's,
or such Significant Subsidiary's, as the case may be, then outstanding
securities;
4.12.1.2 during any period of two years, individuals who at
the beginning of such period constitute the Board and any new director (other
than a director designated by a person who has entered into an agreement with
Company to effect a transaction described in 4.12.1.3, 4.12.1.4 or 4.12.1.5)
whose election by the Board or nomination for election by stockholders was
approved by a vote of at least two-thirds (2/3) of the directors then still in
office who either were directors at the beginning of the two-year period or
whose election or nomination for election was previously so approved, but
excluding for this purpose any such new director whose initial assumption of
office occurs as a result of either an actual or threatened election contest or
other actual or threatened solicitation of proxies or consents by or on behalf
of an individual, corporation, partnership, group, association or other entity
other than the Board, cease for any reason to constitute at least a majority of
the Board of either Company or a Significant Subsidiary;
4.12.1.3 the consummation of a merger or consolidation of
Company or any subsidiary of Company owning directly or indirectly all or
substantially all of the consolidated assets of Company (a "Significant
Subsidiary") with any other entity, other than a merger or consolidation that
would result in the holder(s) of voting securities of Company or a Significant
Subsidiary outstanding immediately prior thereto continuing to hold more than
fifty percent (50%) of the combined voting power of the surviving or resulting
entity outstanding immediately after such merger or consolidation;
4.12.1.4 the stockholders of Company approve a plan or
agreement for the sale or disposition of fifty percent (50%) or more of the
consolidated assets of Company in which case the Board shall determine the
effective date of the Change of Control resulting therefrom; or
2
<PAGE>
4.12.1.5 any other event occurs that the Board determines, in
its discretion, would materially alter the structure of Company or its
ownership.
4.12.2 TERMINATION AFTER CHANGE IN CONTROL.
4.12.2.1 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.
4.12.2.2 Notwithstanding the provisions of Section 7 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, 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 4.5; 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
4.6 hereof."
5. Section 5 of the Agreement is hereby deleted in its entirety.
6. The first sentence of Section 7 is hereby amended to read as follows:
"Except as provided in Section 4.12, 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 Gabriel Battista
Title: EVP - General Counsel
and Secretary
3