Employment Agreement - Talk.com Inc. and Warren Brasselle
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of the
8th day of March, 2000 between Talk.com, Inc., a Delaware corporation (the
"Company"), and Warren Brasselle ("Employee").
WHEREAS, Company desires to employ Employee and Employee desires to be
employed by Company; and
WHEREAS, Company and Employee desire to enter into this Agreement that sets
forth the terms and conditions of said employment.
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. EMPLOYMENT. Company agrees to employ Employee, and Employee accepts
such employment and agrees to serve Company, on the terms and conditions set
forth herein. Except as otherwise specifically provided herein, Employee's
employment shall be subject to the employment policies and practices of Company
in effect from time to time during the term of Employee's employment hereunder
(including, without limitation, its practices as to tax reporting and
withholding).
2. TERM OF AGREEMENT. The term of Employee's employment hereunder
shall commence on April 3, 2000 (the "Commencement Date") and shall continue in
effect for a period of three years thereafter, except as hereinafter provided
(the "Term"). For purposes of this Section 2, Employee shall be deemed to have
commenced employment hereunder in accordance with his obligations under this
Agreement if an Employment Presentment (as defined below) takes place. For
purposes of this Agreement, an "Employee Presentment" shall be deemed to have
occurred if Employee does present himself at the offices of Company in Reston,
Virginia (or such other location as Employee may be directed by the Gabriel
Battista) prepared to commence performing his duties hereunder on or before
April 3, 2000.
3. POSITIONS AND DUTIES.
----------------------
3.1 OFFICER POSITIONS. Except as may otherwise be agreed upon between
Company and Employee, Employee shall perform such duties and have such
responsibilities as Senior Vice President, Network Management and such other
duties and responsibilities consistent with the foregoing duties and
responsibilities as may be reasonably assigned or delegated to him from time to
time by Company's Chief Executive Officer or Company's Board of Directors (the
"Board") and as set forth in Exhibit A hereto, including, without limitation,
service as an employee, officer or director of affiliates (as that term is
defined in Rule 405 under the Securities Act of 1933, as amended (the "Act"))
(hereinafter, "Affiliates") of Company, without additional compensation.
References in this Agreement to Employee's employment with Company shall be
deemed to refer to employment with Company and/or, as the case may be, an
Affiliate, as the context requires. Employee shall perform his duties and
responsibilities to the best of his abilities hereunder in a diligent,
trustworthy, businesslike and efficient manner. Employee shall devote
substantially all of his working time and efforts to the business and affairs of
Company; provided, however, that nothing in this Agreement shall preclude
Employee from (a) engaging in charitable activities and community affairs, and
(b) managing his personal investments and affairs (subject to the limitations in
Section 10 hereof.
4. COMPENSATION AND RELATED MATTERS.
-----------------------------------
4.1 BASE SALARY. During the Term, Company shall pay to Employee a base
salary ("Base Salary") at the rate of Two Hundred Fifty Thousand Dollars
($250,000) per year, which Base Salary shall be paid to Employee in accordance
with Company's usual and customary payroll practices.
4.2 SUPPLEMENTAL PAYMENTS. Employee shall be entitled to receive
payments of $50,000 on June 31, 2000 and $50,000 on September 30, 2000 provided
that Employee has not voluntarily terminated his employment with the Company or
been terminated "for cause" (as that term is defined herein) prior June 31, 2000
(for the initial payment) and September, 30 2000 (for the second payment).
4.2 BENEFIT PLANS AND ARRANGEMENTS. Employee shall be entitled to
participate in and to receive benefits under Company's employee benefit plans
and arrangements (including, but not limited to, bonus plans) as are made
available to the Company's senior executive officers during the Term, which
employee benefit plans and arrangements may be altered from time to time at the
discretion of the Board (the "Benefits"). Annual bonuses to Employee may be up
to thirty percent (30%) of Base Salary. Notwithstanding the foregoing, Employee
acknowledges and agrees that bonuses, annual or otherwise, are performance based
and discretionary with the Board of Directors or a Committee thereof.
4.3 PERQUISITES. During the Term, Employee shall be entitled to
receive fringe benefits as are generally made available to Company's employees.
4.4 EXPENSES. Company shall promptly reimburse Employee for all
out-of-pocket expenses related to Company's business that are actually paid or
incurred by him in the performance of his services under the Agreement and that
are incurred, reported and documented in accordance with the Company's policies.
4.5 STOCK OPTIONS.
--------------
(a) GRANT OF OPTIONS. Effective on the date hereof, Employee shall be
granted an option (the "Ongoing Option") to purchase 180,000 shares of Common
Stock in accordance with a stock option agreement to be mutually agreed to, and
executed by, Company and Employee prior to the Commencement Date, which stock
option agreement shall be in substantially the form thereof attached hereto as
Exhibit A. The Option shall have an exercise price equal to $14 3/8 per share
and shall expire on the tenth anniversary of the date hereof and shall vest and
become exercisable, subject to accelerated vesting in the event of a Change in
Control (defined as provided below) of Company in installments, as follows: (i)
options with respect to 30,000 shares of Common Stock shall vest and become
exercisable on the date hereof and (ii) options with respect to 50,000 shares of
Common Stock shall vest and become exercisable on the first anniversary of the
date hereof, (iii) options with respect to 50,000 shares of Common Stock shall
vest and become exercisable on the second anniversary of the date hereof and
(iv) options with respect to 50,000 shares of Common Stock shall vest and become
exercisable on the third anniversary of the date hereof. In the event of a
Change in Control of Company, the Option shall vest and become exercisable as to
all shares then subject thereto that are not then vested and exercisable. For
purposes of this Agreement, "Change in Control" shall be deemed to have occurred
if:
(i) any Person (as defined in Section 3(a)(9) under the Securities
Exchange Act of 1934, as amended (the "Exchange Act")), other
than the Company, 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 the Company or any Significant
Subsidiary (as defined below) representing 50% or more of the
combined voting power of the Company's, or such subsidiary's, as
the case may be, then outstanding securities;
(ii) 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 the Company to effect a transaction described in
clauses (i), (iii), or (iv) of this Section 2(a)) 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 or the Company or a Significant Subsidiary;
(iii) the consummation of a merger or consolidation of the Company or
any subsidiary of the Company owning directly or indirectly all
or substantially all of the consolidated assets of the Company (
a "Significant Subsidiary") with any other entity, other than a
merger or consolidation which would result in the voting
securities of the Company or a Significant Subsidiary outstanding
immediately prior thereto continuing to represent more than fifty
percent (50%) of the combined voting power of the surviving or
resulting entity outstanding immediately after such merger or
consolidation;
(iv) the shareholders of the Company approve a plan or agreement for
the sale or disposition of fifty percent (50%) or more of the
consolidated assets of the Company in which case the Board shall
determine the effective date of the Change of Control resulting
therefrom; and
(v) any other event occurs which the Board determines, in its
discretion, would materially alter, the structure of the Company
or its ownership.
Notwithstanding the foregoing, the Options shall be forfeited by Employee if an
Employment Presentment does not take place on or before April 3, 2000.
(b) REGISTRATION STATEMENT. Company will file with the Securities
and Exchange Commission and any applicable state securities regulatory
authorities a Registration Statement on Form S-8 (or if unavailable, a
registration statement on Form S-3) to register the shares issuable upon
exercise of the Option under the Act and any applicable state securities or
"Blue Sky" laws as soon as practicable after the date hereof. Notwithstanding
the foregoing, Company shall be entitled to postpone for a reasonable period of
time the filing or the effectiveness of such registration statement if the Board
shall determine in good faith that such filing or effectiveness would be
materially detrimental to the Company's business interests.
5. TERMINATION. The Term of Employee's employment hereunder may be
terminated under the following circumstances:
5.1 DEATH. The Term of Employee's employment hereunder shall terminate
upon his death.
5.2 DISABILITY. If Employee becomes physically or mentally disabled
during the term hereof so that he is unable to perform services required of him
pursuant to this Agreement for an aggregate of six (6) months in any twelve (12)
month period (a 'Disability"), Company, at its option, may terminate Employee's
employment hereunder.
5.3 CAUSE. Upon written notice, Company may terminate Employee's
employment hereunder for Cause (as defined below). For purposes of this
Agreement, Company shall have "Cause" to terminate Employee's employment
hereunder upon (a) a material breach by Employee of any material provision of
this Agreement, (b) willful misconduct by Employee in connection with
misappropriating any funds or property of Company, (c) attempting to obtain any
personal profit from any transaction in which Employee has an interest that is
adverse to the interests of Company without prior written disclosure thereof to
the Board or (d) Employee's gross neglect in the performance of the duties
required to be performed by Employee under this Agreement.
5.4 BY EMPLOYEE. Employee may terminate his employment hereunder:
(a) Upon sixty (60) days' prior written notice to Company, provided that,
upon the giving of such notice by Employee, Company may establish an earlier
date for such termination under this Section 5.4 (a).
(b) For Good Reason (as defined below) immediately and with notice to
Company. "Good Reason" for termination by Employee shall include, but is not
limited to, the following:
(i) Material breach of any provision of this Agreement by Company,
which breach shall not have been cured by Company within thirty
(30) days of receipt of written notice of said material breach;
(ii) Failure by Company to maintain Employee in a position
commensurate with that referred to in Section 3 of this
Agreement; or
(iii) The assignment to Employee of any duties inconsistent with
Employee's position, authority, duties or responsibilities as
contemplated by Section 3 hereof or any other action by Company
that results in a diminution of such position, authority, duties
or responsibilities.
5.5 WITHOUT CAUSE. Company may otherwise terminate the Term of
Employee's employment at any time upon written notice to Employee.
6. COMPENSATION IN THE EVENT OF TERMINATION. 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:
6.1 BY EMPLOYEE FOR GOOD REASON; BY COMPANY WITHOUT CAUSE. In the
event that Employee's employment hereunder is terminated by Company without
Cause or by Employee for Good Reason, then the Company shall (a) pay to Employee
all amounts due to Employee pursuant to any bonus that was due to Employee as of
the date of such termination, pursuant to the terms of such bonus (a "Due
Bonus"), (b) continue to pay to Employee the Base Salary and Benefits to which
Employee would be entitled hereunder in the manner provided for herein for the
period of time ending on the date which is six (6) months after the effective
date of such termination, (c) 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 and (d) one hundred percent (100%) of the
outstanding stock options granted to the Employee that are unvested shall
immediately vest and become exercisable.
6.2 BY COMPANY FOR CAUSE; BY EMPLOYEE WITHOUT GOOD REASON. In the
event that Company shall terminate Employee's employment hereunder for Cause
pursuant to Section 5.3 hereof or Employee shall terminate his employment
hereunder without Good Reason, all compensation and Benefits, as specified in
Section 4 of this Agreement, theretofore payable or provided to Employee shall
cease to be payable or provided, except for any Due Bonus and any Benefits that
may have been due and payable but that have not been paid as of the date of
termination and reimbursement of 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.
6.3 DEATH. In the event of Employee's death, Company shall not be
obligated to pay Employee or his estate or beneficiaries any compensation except
for (a) any Due Bonus or any Benefits that may have been earned and are due and
payable as of the date of death, but which have not been paid as of such date,
(b) reimbursement of expenses that may have been incurred, but which have not
been paid as of the date of death, subject to the requirements of Section 4.4
hereof, and (c) all outstanding stock options granted to Employee that are
unvested shall immediately vest and become exercisable and Employee's estate or
beneficiaries, as the case may be, shall have the right to exercise any of such
stock options during the period commencing on the date of death and ending on
the second anniversary of the date of such termination or for the remainder of
the period set forth in the option agreement applicable to the option in
question (the "Exercise Period'), if less.
<PAGE>
6.4 DISABILITY. In the event of Employee's Disability, Company shall
not be obligated to pay Employee or his estate or beneficiaries any additional
compensation except for: (a) any Due Bonus and Benefits that may have been
earned and are due and payable as of the date of such Disability, but which have
not been paid as of such date, and (b) reimbursement for expenses that may have
been incurred but which have not been paid as of the date of Disability, subject
to the requirements of Section 4.4 hereof. Upon termination due to Disability,
fifty percent (50%) of the outstanding stock options granted to Employee that
are unvested shall immediately vest and become exercisable and Employee or his
estate or beneficiaries, as the case may be, shall have the right to exercise
any of such stock options during the period commencing on the date of Disability
and ending on the second anniversary of the date of the Disability or for the
remainder of Exercise Period, if less.
6.5 NO MITIGATION. In the event of any termination of employment under
Section 5 hereof, Employee shall be under no obligation to seek other
employment; provided; however, that to the extent that Employee does obtain
other employment subsequent to the termination of Employee's employment
hereunder, the obligations of Company to pay Benefits under this Agreement from
and after the date of commencement of such other employment shall terminate.
7. UNAUTHORIZED DISCLOSURE. Employee shall not, without the prior
written consent of Company, disclose or use in any way, either during Employee's
employment with Company or thereafter, except as required in the course of such
employment, any confidential business or technical information or trade secret
acquired in the course of such employment, whether or not conceived of or
prepared by him, which is related to any service or business of Company or any
Affiliate; provided, however, that the foregoing shall not apply to (a)
information that is not unique to the Company or that is generally known to the
industry or the public other than as a result of Employee's breach of this
covenant, (b) information known to Employee other than from information provided
by Company or (c) information that Employee is required to disclose to, or by,
any governmental or judicial authority; provided, however, if Employee should be
required in the course of judicial or other governmental proceedings to disclose
any information, Employee shall give Company prompt written notice thereof so
that Company may seek an appropriate protective order and/or waive in writing
compliance with the confidentiality provisions of this Agreement. If, in the
absence of a protective order or the receipt of a waiver by Company, Employee is
compelled to disclose information to, or pursuant to the requirements of, a
court or other governmental authority, Employee may disclose such information to
such court or other governmental authority without liability to any other party
hereto.
8. TANGIBLE ITEMS. All files, records, documents, manuals, books,
forms, reports, memoranda, studies, data, calculations, recordings and
correspondence, in whatever form they may exist, and all copies, abstracts and
summaries of the foregoing and all physical items related to the business of
Company and its affiliates, other than merely personal items, whether of a
public nature or not, and whether prepared by Employee or not, and which are
received by Employee from, or on behalf of Company or an Affiliate in the course
of his employment hereunder are and shall remain the exclusive property of
Company and any such Affiliate and shall not be removed from the premises of the
Company or such Affiliate, as the case may be, except as required in the course
of Employee's employment hereunder, without the prior written consent of the
Company's Chief Executive Officer or the Board, and the same shall be promptly
returned by Employee upon the termination of Employee's employment with Company
or at any time prior thereto upon the request of the Company's Chief Executive
Officer or the Board.
9. INVENTIONS AND PATENTS. Employee agrees that all inventions,
innovations, improvements, developments, methods, designs, analyses, drawings,
reports, and all similar or related information that relates to Company's actual
or anticipated business, research and development or existing or future products
or services and that are conceived, developed or made by or at the direction of
Employee while Employee is employed by Company will be owned by Company.
Employee also agrees to promptly perform, at the expense of Company, all
reasonable actions (whether before, during or after the Term) necessary to
establish and confirm such ownership.
10. CERTAIN RESTRICTIVE COVENANTS. During the Term, and for a period
ending six (6) months after the earlier of Employee's termination of employment
hereunder and the end of the Term for which the Employee is being compensated at
an annual rate equal to the Base Salary, Employee agrees that he will not act,
either directly or indirectly, as a partner, officer, director, substantial
stockholder (an equity interest of 5% or more) or employee of, or render
advisory or other services for, or in connection with, or become interested in,
or make any substantial financial investment in any firm, corporation, business
entity or business enterprise that competes with the business of Company (each,
a "Competitor"), except with the express written consent of the Board. Employee
further agrees that in the event of the termination of his employment under
Section 5 hereof, for a period of twelve (12) months thereafter, he will not,
directly or indirectly, employ, offer to employ, or actively interfere with the
relationship of Company or an Affiliate with, any employee of Company or any
employee of any Affiliate.
11. EMPLOYEE REPRESENTATIONS AND COVENANTS. Employee hereby
represents, warrants and covenants to Company that (a) the execution, delivery
and performance of this Agreement by Employee does not and will not conflict
with, breach, violate or cause a default under any employment, non-competition
or confidentiality contract or agreement, instrument; order, judgment or decree
to which Employee is a party or by which he is bound; (b) Employee, in
performing this Agreement and the duties of Employee's employment with Company,
will not disclose or utilize any trade secrets of a former employer, unless
Employee has first obtained express written authorization from any such former
employer for their disclosure or use; (c) Employee has not brought, and will not
bring to Company, any documents, records, information or
<PAGE>
other materials of a former employer that are not generally available to the
public, unless Employee has first obtained express written authorization from
any such former employer for their possession and use; and (d) upon the
execution and delivery of this Agreement by Company, this Agreement shall be the
valid and binding obligation of Employee, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency and similar laws affecting
the rights of creditors generally.
12. COMPANY REPRESENTATIONS. Company represents and warrants (a) that
it is duly authorized and empowered to enter into this Agreement, (b) the
execution, delivery and performance of this Agreement by Company does not and
will not conflict with, breach, violate or cause a default under any contract,
agreement, instrument, order, judgment or decree to which Company is a party or
by which it is bound, and (c) upon the execution and delivery of this Agreement
by Employee, this Agreement shall be the valid and binding obligation of
Company, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency and similar laws affecting the rights of creditor
generally.
13. INDEMNIFICATION. Prior to the Commencement Date, Company and
Employee shall enter into an indemnification agreement in a form mutually
acceptable to Company and Employee and containing terms no less favorable to
Employee than those contained in any indemnification or similar agreement
currently in effect between Company and any of its officers.
14. REMEDIES. Employee acknowledges that the restrictions and
agreements contained in this Agreement are reasonable and necessary to protect
the legitimate interests of Company, and that any violation of this Agreement
will cause substantial and irreparable injury to Company that would not be
quantifiable and for which no adequate remedy would exist at law and agrees that
injunctive relief, in addition to all other remedies, shall be available
therefor.
15. EFFECT OF AGREEMENT ON OTHER BENEFITS. Except as specifically
provided in this Agreement, the existence of this Agreement shall not be
interpreted to preclude, prohibit or restrict Employee's participation in any
other employee benefit plan or other plans or programs provided to officers,
directors or employees of Company.
16. RIGHTS OF EMPLOYEE'S ESTATE. If Employee dies prior to the payment
of all amounts due and owing to him under the terms of this Agreement, such
amounts shall be paid to such beneficiary or beneficiaries as Employee may have
last designated in writing filed with the Secretary of Company or, if Employee
has made no beneficiary designation, to Employee's estate. Such designated
beneficiary or the executor of Employee's estate, as the case may be, may
exercise all of Employee's rights hereunder. If any beneficiary designated by
Employee shall predecease Employee, the designation of such beneficiary shall be
deemed revoked, and any amounts which would have been payable to such
beneficiary shall be paid to Employee's estate. If any designated
<PAGE>
beneficiary survives Employee, but dies before payment of all amounts due
hereunder, such payments shall, unless Employee has designated otherwise, be
made to such beneficiary's estate. In the event of Employee's death or judicial
determination of his incompetence, reference in this Agreement to Employee shall
be deemed where appropriate, to refer to his beneficiary, estate or other legal
representative.
17. SEVERABILITY. It is the intent and understanding of the parties
hereto that if, in any action before any court or other tribunal of competent
jurisdiction legally empowered to enforce this Agreement, any term, restriction,
covenant, or promise is held to be unenforceable as a result of being
unreasonable or for any other reason, then such term, restriction, covenant, or
promise shall not thereby be terminated, but, that it shall be deemed modified
to the extent necessary to make it enforceable by such court or other tribunal
and, if it cannot be so modified, that it shall be deemed amended to delete
therefrom such provision or portion adjudicated to be invalid or unenforceable,
and this agreement shall be deemed to be in full force and effect as so modified
and such modification or amendment in any event shall apply only with respect to
the operation of this Agreement in the particular jurisdiction in which such
adjudication is made.
18. NOTICES. Any notices or demands given in connection herewith shall
be in writing and deemed given when (a) personally delivered, (b) sent by
facsimile transmission to a number provided in writing by the addressee and a
confirmation of the transmission is received by the sender or (c) two (2) days
after being deposited for delivery with a recognized overnight courier, such as
Federal Express, and addressed or sent, as the case may be, to the address or
facsimile number set forth below or to such other address or facsimile number as
such party may in writing designate:
If to Employee: Warren Brasselle
41832 Giddings Lane
Leesburg VA 20176
Phone No: (703) 779-0554
If to Company: Talk.com, Inc.
6805 Route 202
New Hope, Pennsylvania 18938
Attn: Aloysius T. Lawn, IV
Fax No.: (215) 862-1092
Either party may change its address for notices by written notice to the other
party in accordance with this Section 17.
19. WAIVER. No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in a
writing executed by Employee and Company. No waiver by any party hereto at any
time of any breach by another party hereto of, or compliance with, any condition
or provision of this Agreement to be performed by such other party shall be
deemed a waiver of similar or dissimilar provisions or conditions at the same or
at any prior or subsequent time.
20. GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of Pennsylvania
relating to contracts made and to be performed entirely therein.
21. HEADINGS. The headings in this Agreement are inserted for
convenience only and shall have no significance in the interpretation of this
Agreement.
22. SUCCESSORS. Company may not assign any of its rights or
obligations under this Agreement hereunder. Employee may assign his rights, but
not his obligations, hereunder and all of Employee's rights hereunder shall
inure to the benefit of his estate, personal representatives, designees or other
legal representatives. All of the rights of Company hereunder shall inure to
the benefit of, and be enforceable by the successors of Company. Any person,
firm or corporation succeeding to the business of Company by merger, purchase,
consolidation or otherwise shall be deemed to have assumed the obligations of
Company hereunder; provided, however, that Company shall, notwithstanding such
assumption by a successor, remain primarily liable and responsible for the
fulfillment of its obligations under this Agreement.
23. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
24. CERTAIN WORDS. As used in this Agreement, the words "herein,"
"hereunder," "hereof" and similar words shall be deemed to refer to this
Agreement in its entirety, and not to any particular provision of this Agreement
unless the context clearly requires otherwise.
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the day and year first written above.
Talk.com, Inc.
By: /s/ Aloysius T. Lawn IV
---------------------------
Aloysius T. Lawn, IV
Executive Vice President, Secretary and
General Counsel
/s/ Warren Brasselle
----------------------
Warren Brasselle