Employment Agreement - Talk.com Holding Corp. and Janet Kirschner
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
the 14th day of October, 1999 among Talk.com Inc., a Delaware corporation
("Talk.com") and Talk.com Holding Corp., a Pennsylvania corporation and a wholly
owned subsidiary of Talk.com Inc. (the "Company") and Janet Kirschner
("Employee").
WHEREAS, Talk.com and Company desires to employ Employee as Controller
of Talk.com and the Company and in certain other capacities, and Employee
desires to be employed by Talk.com and Company; and
WHEREAS, Talk.com and 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 November 15, 1999 (the "Commencement Date") and shall continue in
effect for a period of five years thereafter, except as hereinafter provided
(the "Term"). Employee agrees to and shall present herself at the offices of
Company in New Hope, Pennsylvania prepared to commence performing her duties
hereunder on or before the Commencement Date.
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 Controller 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"), 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 her duties and
responsibilities to the best of her abilities hereunder in a diligent,
trustworthy, businesslike and efficient manner. Employee shall devote
substantially all of her 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 her personal investments and affairs (subject to the limitations in
Section 10 hereof.
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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 One Hundred Fifty Thousand Dollars
($150,000) per year, which Base Salary shall be paid to Employee in accordance
with Company's usual and customary payroll practices.
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"). 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 made available to Company's senior executive
officers.
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 her services under this Agreement and that
are incurred, reported and documented in accordance with Company's policies. In
addition, during the Term, Company will provide Employee with an automobile or
an automobile allowance, as Company shall determine, and if the Company
determines to provide Employee with an automobile, Company shall keep such
automobile fully insured in accordance with Company's practices for similarly
situated employees.
4.5 Stock Options.
(a) Grant of Options. Effective on the date hereof, Employee
shall be granted an award of an option to purchase 150,000 shares of the Common
Stock (the "Option") in accordance with the stock option agreement in
substantially in the form thereof attached hereto as Exhibit A. The Option shall
have an exercise price equal to $11 1/8, which is equal to the fair market value
(as defined below) of the Common Stock on the date hereof. The Option expires 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 50,000 shares of Common Stock shall vest and become exercisable on the first
anniversary of the date hereof; (ii) options with respect to 50,000 shares of
Common Stock shall vest and become exercisable on the second anniversary of the
date hereof and (iii) 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, all of the options issued under
the Option which are not then vested and exercisable shall immediately become
vested and exercisable. The fair market value of Common Stock for purposes of
this Agreement shall mean the last reported sale price of a share of the Common
Stock on the Nasdaq National Market System preceding the date in question or if
no sale took place on such day, such last reported sale price on the then next
preceding date on which such sale took place. For the purposes of this
Agreement, a "Change of Control" shall be deemed to have occurred if:
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(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;
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(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;
(v) (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
(vi) any other event occurs which the Board
determines, in its discretion, would
materially alter, the structure of the
Company or its ownership.
(b) Registration Statement. Company will file with the
Securities and Exchange Commission and any applicable state securities
regulatory authorities a Registration Statement on the applicable form to
register the resale of the Award and 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.
4.6 Bonuses. Company shall pay Employee on January 3, 2000 the sum of
Seventy-Five Thousand Dollars ($75,000).
5. Termination. The Term of Employee's employment hereunder may be
terminated under the following circumstances:
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5.1 Death. The Term of Employee's employment hereunder shall terminate
upon her 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 her 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.
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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 earlier of the date when the Term would otherwise
have expired in accordance with Section 2 hereof and the second anniversary of
the 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 her 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 her 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.
6.4 Disability. In the event of Employee's Disability, Company shall
not be obligated to pay Employee or her 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 her
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.
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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 (which is defined in
Section 4.2 of this Agreement and the term "Benefits" does not include Options
granted pursuant to Section 4.5 of this Agreement for purposes of this Section
6.5) 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 her 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.
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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 twelve (12) months after the earlier of Employee's termination of
employment hereunder, 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 is a provider of telecommunication services that competes with
Employer (each, a "Competitor"), except with the express written consent of the
Board which shall not be unreasonably withheld. Employee further agrees that in
the event of the termination of her employment under Section 5 hereof, for a
period of twelve (12) months thereafter, she 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 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.
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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 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 her incompetence, reference in this Agreement to Employee shall be deemed
where appropriate, to refer to her 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: Janet Kirschner
If to Company: Talk.com Inc.
12020 Sunrise Valley Drive
Suite 250
Reston, VA 20190
Attn: General Counsel
Fax No.: (703) 391-7525
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 her rights, but
not her 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.
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IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the day and year first written above.
Talk.com Inc. Talk.com Holding Corp.
By: By:
----------------------------- -----------------------------
Name: Name:
Title: Title:
-----------------------------
Janet Kirscherner
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