Employment Agreement - Tel-Save.com Inc. and George Vinall
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of the
16th day of December, 1998 between Tel-Save.com, Inc., a Delaware corporation
(the "Company"), and George Vinall ("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 December 28, 1998 (the "Commencement Date") and shall continue in
effect for a period of three years thereafter, except as hereinafter provided
(the "Term"). Notwithstanding the foregoing, Employee shall not assume the
Positions (as defined in Section 3.1 hereof) until January 4, 1998. 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 New Hope,
Pennsylvania (or such other location as Employee may be directed by the Gabriel
Battista) prepared to commence performing his duties hereunder on or before
December 31, 1998.
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, Business Development 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
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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 Thousand ($200,000) Dollars
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"). Annual bonuses to Employee may be up
to fifty percent (50%) 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 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 his 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, as
Company shall determine, and 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 option (the "Option") to purchase 240,000 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 upon
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execution of the option. The Option shall have an exercise price equal to $8
9/16 per share, 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 80,000 shares of Common Stock shall vest
and become exercisable on the first anniversary of the date hereof, (ii) options
with respect to 80,000 shares of Common Stock shall vest and become exercisable
on the second anniversary of the date hereof and (iii) options with respect to
80,000 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
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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;
(v) any other event occurs which the Board determines, in its
discretion, would materially alter, the structure of the
Company or its ownership; and
(vi) a person other than Gabriel Battista is elected by the Board
of Directors to serve as the Company's principal executive
officer.
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. Notwithstanding the foregoing, the Options shall be
forfeited by Employee if an Employment Presentment does not take place on or
before December 31, 1998.
(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.
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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 Signing Bonus. In consideration of Employee's agreement to become
employed by Company, Company shall pay Employee One Hundred Seventy-Five
Thousand Dollars ($175,000) (the "Signing Bonus") by means of a wire transfer on
earlier of the Commencement Date, upon Employee's commencement of employment
with Company as herein provided and the date and time in which this contract is
executed.
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:
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(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 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 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.
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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.
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
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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.
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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 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: Mr. George Vinall
8622 Ordinary Way
Annandale, VA 22003
Fax No.: (703) 764-8011
If to Company: Tel-Save.com, Inc.
6805 Route 202
New Hope, Pennsylvania 18938
Attn: President
Fax No.: (215) 862-1515
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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.
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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.
Tel-Save.com, Inc.
By:
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Name:
Title:
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George Vinall
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