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ITXC COO Employment Agreement
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EMPLOYMENT AGREEMENT
AGREEMENT made this 4th day of February, 1999, by and between ITXC Corp., a corporation formed under the laws of the State of Delaware (the "Company"), and John G. Musci (the "Executive").
W I T N E S S E T H:
WHEREAS, the Company wishes to employ the Executive and the Executive wishes to accept such employment, and each desires to enter into an agreement to provide for the terms and conditions of such employment set forth herein;
NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, receipt of which is hereby acknowledged, the parties hereto agree as follows:
1. Employment
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The Company agrees to employ the Executive during the Term specified in section 2, and the Executive agrees to accept such employment, upon the terms and conditions hereinafter set forth.
2. Term
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(a) Subject to Section 6 below and the other terms and conditions of this Agreement, the Executive's employment by the Company shall be for a term (the "Term") commencing on February 1, 1999 and expiring o
n the date (hereafter referred to as the "Expiration Date") which is (a) January 31, 2001 or (b) any later date to which the Term may be extended by written agreement of the parties. Notwithstanding anything contained herein to the contrary, in the event
that the Executive's employment with the Company continues after the Expiration Date, the Executive's employment shall be deemed to be "at will". The effective date of the termination of the Executive's employment with the Company, regardless of the reaso
n therefor, is referred to in this Agreement as the "Date of Termination".
(b) Upon termination of the employment of the Executive with the Company on or after the Expiration Date, the Company shall pay the Executive, subject to appropriate offsets, as permitted by applicable law, for debts or money due to the Company
(collectively, "Offsets"), any earned but unpaid salary and bonus compensation, and any unused accrued vacation, only through or as of, and any unpaid reimbursement expenses outstanding as of, the
Date of Termination. Any benefits to which the Executive or
his beneficiaries may be entitled to under the plans and programs described in section 5(b) below, or any other applicable plans and programs, as of the Date of Termination shall be determined in accordance with the terms of such plans and programs. In a
d
dition, unless the Executive's employment terminates on or after the Expiration Date other than as a result of the Executive's death, disability or by the Company for Cause (as defined in section 6(a), the Company shall continue to pay the Executive his r
a
te of base salary compensation then in effect for a period of six months. Except as provided in this section 2(b), in connection with the Executive's termination of employment pursuant to section 2(a), the Company shall have no further liability to the Ex
ecutive or the Executive's heirs, beneficiaries or estate for damages, compensation, benefits, severance, indemnities or other amount of whatever nature.
3. Duties and Responsibilities
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(a) Dur
ing the Term, the Executive shall have the position of Executive Vice President and Chief Operating Officer or such other title as may be agreed between the Executive and the Company. The Executive shall perform such duties and responsibilities as may be
assigned to him from time to time consistent with his position, and in the absence of such assignment, such duties as are customary and commensurate with such position. The Executive further agrees to accept election, and to serve during all or any part
of the Term, as a director of the Company and as an officer or director of any subsidiary of the Company, without any additional compensation therefor.
(b) The Executive's employment by the Company shall be full-time and exclusive, and during the
Term, the Executive agrees that he will (i) devote substantially all of his business time and attention, his best efforts, and all his skill and ability to promote the interests of the Company and its affiliates; (ii) carry out his duties in a competent
a
nd professional manner; (iii) work with other employees of the Company and its affiliates in a competent and professional manner; and (iv) generally promote the interests of the Company and its affiliates. Notwithstanding the foregoing, the Executive sha
l
l be permitted to engage in civic or charitable activities and manage his personal investments, provided that such activities (individually or collectively) do not materially interfere with the performance of his duties or responsibilities under this Agre
ement.
(c) The Executive's principal office shall initially be located in Plainsboro, New Jersey, subject to necessary travel requirements of his position and duties hereunder. The Company reserves the right to move Executive's principal office
to a location within a 50 miles of said location.
4. Compensation
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(a) As compensation for his services hereunder, the Company shall pay the Executive, in accordance with its normal payroll practices, base s
alary compensation at an annual rate not less than the greater of $200,000.00 or the base salary of the Executive most recently approved by the Board of Directors of the Company.
(b) Subject to the attainment of such individual and Company obje
ctives as the Board of Directors of the Company shall establish, the Executive may be awarded a cash bonus for each three month period of employment not to exceed, on an annualized basis, 200% of the Executive's annual base salary then in effect; provided
,
however, that the minimum cash bonus to be paid the Executive for the three month period of employment commencing February 1, 1999 shall be $50,000 and the minimum cash bonus to be paid the Executive for the three month period of employment commencing Ma
y 1, 1999 shall be $25,000.
(c) As of the first day of the Term, the Executive shall be granted non-qualified options ("First Day Options") under the ITXC Corp. Stock Incentive Plan (the "Stock Incentive Plan") to purchase 750,000 shares of ITXC
Corp. common stock. The exercise price of such First Day Options shall be the fair market value of ITXC Corp. common stock on December 31, 1998 (the "Grant Date") as determined in accordance with the terms of the Stock Incentive Plan.
500,000 o
f such First Day Options shall vest and become exercisable at the rate of thirty-three and one-third percent (33-1/3%) on each one-year anniversary of the Grant Date, commencing with January 1, 2000. The remaining 250,000 such First Day Options shall ves
t
and become exercisable on January 1, 2006; provided, however, that if a "change in control" of [Qwest] (as defined under the [Qwest Stock Option Plan]) occurs before January 1, 2001, 125,000 of such First Day Options shall thereupon immediately vest if t
h
e price paid for each share of [Qwest] common stock in connection with such change in control is at least $35.00 per share but no more than $40.00 per share, and 250,000 of such First Day Options shall thereupon immediately vest if the price paid for each
share of Qwest common stock in connection with such change in control is more than $40.00 per share. Except as provided by section 6(d) or the Stock Incentive Plan, upon the Executive's termination of employment with the Company, all First Day Options wh
ich are not vested shall be forfeited.
In the event that, within 18 months after the Grant Date, the Company engages in one or more private equity placements (each a "Placement") at a time when shares of the Company's Series C Convertible Preferr
ed Stock have a value of less than $9.29 per share, the Company shall grant Executive, as of the date of each such Placement, such number of additional non-qualified options (the "Additional Options") under the Stock Incentive Plan (or any successor plan)
as may be required to maintain the equity ownership percentage of the Executive in the Company (on a fully diluted basis) to the extent represented by Executive's outstanding Options (whether or not vested and including any Additional Options granted here
u
nder in connection with a prior Placement) immediately prior to the Placement plus any shares of ITXC Corp. common stock which have been issued to the Executive as a result of his exercise of Options prior to such Placement. The exercise price of the Addi
t
ional Options shall be the fair market value of ITXC Corp. common stock on such date of grant as determined in accordance with the terms of the Stock Incentive Plan (or any successor plan). The Additional Options shall vest in accordance with the same ve
sting schedule described above with respect to First Day Options, as if such Additional Options had been granted on the Grant Date.
For purposes of this Agreement, First Day Options and Additional Options, if any, shall be collectively referred to as "Options". Except as set forth herein, the Options shall be subject in all respects to the terms and conditions of the plan g
overning the Options.
(d) All compensation paid to the Executive shall be subject to applicable tax withholding requirements.
5. Expenses; Fringe Benefits
-------------------------
(a) The Company agrees to pa
y or to reimburse the Executive during the Term for all reasonable, ordinary and necessary vouchered business or entertainment expenses incurred in the performance of his services hereunder in accordance with the policy of the Company as from time to time
in effect.
(b) During the Term, the Executive and, to the extent eligible, his dependents, shall be entitled to participate in and receive all benefits under any employee benefit plans and programs provided by the Company (including without limi
tation, 401(k), medical, dental, disability, group life (including accidental death and dismemberment) and business travel insurance plans and programs) applicable generally to the employees of the Company, subject, however, to the terms and conditions of
the various plans and programs in effect from time to time.
(c) The Executive shall accrue paid personal time off days in accordance with the personal time off days policy of the Company applicable generally to executives of the Company in effec
t from time to time. In addition, the Executive shall be entitled to five (5) additional paid personal time off days to be used in connection with the Executive's relocation to New Jersey.
(d) Notwithstanding anything contained herein to the co
ntrary, the Company reserves the right to modify, amend or terminate any employee benefit plan or policy as it deems appropriate in its discretion; provided that unless required by law, the Company shall not amend, modify or terminate any such plan or pol
icy in a manner that treats the Executive differently from other similarly situated employees.
(e) The Executive agrees to relocate his principal residence within driving commuting distance of the Company's Plainsboro, New Jersey office by not la
ter than August 15, 1999. The Company shall, subject to receipt of appropriate expense reports and vouchers, promptly reimburse the Executive for Relocation Expenses in an aggregate amount not to exceed $100,000.00. Relocation Expenses shall include norm
a
l and customary moving expenses (including packing and unpacking, personal effects, automobiles), temporary living expenses, house and school hunting trips, real estate commission on the sale of Executive's current home, attorneys fees and closing costs o
n
a new home, mortgage points on a new mortgage in excess of two points (but only if mortgages for two points or less are unavailable in the marketplace on reasonable lending terms), and commuting costs incurred until the earlier of the date Executive relo
cates his principal residence or August 15, 1999. To the extent that the Relocation Expenses
for which Executive receives reimbursement from the Company are not deductible for Federal income tax purposes, the Company will "gross-up" the payments based on
Executive's effective Federal income tax rate for 1999 and any such "gross- up" payment shall be deemed a Relocation Expense for purposes of this paragraph and subject to the $100,000.00 limitation set forth above. Notwithstanding anything contained here
i
n to the contrary, if Executive's employment with the Company terminates prior to February 1, 2000 for any reason other than as a result of death or disability or pursuant to sections 6(a) or 6(b) hereof, no Relocation Expenses shall be paid or reimbursed
by the Company (other than Relocation Expenses that are commuting expenses) and the Executive shall within thirty (30) days of such termination of employment repay the Company for any Relocation Expenses (other than Relocation Expenses that are commuting
expenses) that have been paid or reimbursed by the Company.
6. Termination
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(a) The Company, by direction of its Board of Directors and/or Chief Executive Officer, shall be entitled to terminate the Term prior
to the Expiration Date and to discharge the Executive for "Cause" effective upon the giving of written notice. The term "Cause" shall be limited to the following grounds:
(i) The willful and continued failure by the Executive to
substantially perform any of his material duties hereunder or to
follow the reasonable and lawful orders of the Board of Directors of
the Company or the Chief Executive Officer of the Company;
(ii) The Executive's misappropriation of material assets of the
Company;
(iii) Use of alcohol or illegal drugs, materially interfering
with the performance of the Executive's obligations under this
Agreement;
(iv) Indictment, arraignment or conviction of a felony or of any
crime involving moral turpitude, dishonesty or theft;
(v) The commission by the Executive of any willful or intentional
act, or the Executive's willful or intentional failure to act, which
could reasonably be expected to injure the reputation, business or
business relationships of the Company; provided, however, that no act
or failure to act on the part of the Executive shall be deemed to be
willful or intentional if it was due primarily to an error of judgment
or negligence, but shall be deemed willful or intentional if done, or
omitted to be done, by the Executive not in good faith and without
reasonable belief that his action or omission was in or not opposed to
the best interests of the Company. Failure to meet performance
standards or objectives of the Company by itself shall not constitute
Cause for purposes of this Agreement.
(vi) Any material breach (not covered by any of the clauses (i)
through (v)) of any term, provision or condition of this Agreement or
of any Company policy.
(b) The Executive shall be entitled to terminate this Agreement and the Term hereunder prior to the Expiration Date in the event that the Company is in default of a material term of this Agreement, which default remains uncured for a period of 3
0
days after written notice of such default from the Executive to the Company, such notice to specify the specific nature of the claimed default and the manner in which the Executive requires such default to be cured. Notwithstanding any such termination,
o
r in the event the Company terminates the employment of the Executive prior to the Expiration Date in breach of its obligations under this Agreement (hereinafter referred to as a "Termination Without Cause"), the restrictions set forth in section 8 shall
remain in full force and effect.
(c) Upon the termination of the employment of the Executive with the Company pursuant to section 6(a) or by virtue of a resignation other than pursuant to a termination under section 6(b) below, the Company shall
pay the Executive, subject to any Offsets, (i) any earned but unpaid salary compensation, (ii) any earned but unpaid cash bonus, (iii) any unused accrued vacation, and (iv) any unpaid reimbursable expenses (except as provided under Section 5(d), in each c
a
se, as of the Date of Termination. Any benefits to which the Executive or his beneficiaries may be entitled to under the plans and programs described in section 5(b) above, or any other applicable plans and programs, as of his Date of Termination shall b
e
determined in accordance with the terms of such plans and programs. Except as provided in this section 6(c), the Company shall have no further liability to the Executive or the Executive's heirs, beneficiaries or estate for damages, compensation, benefi
ts, severance, indemnities or other amount of whatever nature.
(d) In the event of the termination of the Executive's employment by the Executive pursuant to section 6(b) above or in the event of a Termination Without Cause by the Company (each s
uch event being called a "Wrongful Termination"), as liquidated damages, the Executive shall be entitled to continue to receive from the Company, subject to any Offsets and for so long as the Executive is not in breach of his obligations to the Company un
d
er sections 8 and 9 hereof, (i) his then applicable salary compensation when otherwise payable through the remainder of the then current Term hereof reduced by any income earned by the Executive as a result of gainful activity during the remainder of such
Term whether as an employee, principal, partner, agent, consultant, co-venturer or in any other capacity (hereinafter referred to as "Other Employment"), (ii) any earned but unpaid bonus as of the Date of Termination, and (iii) any unpaid reimbursable exp
e
nses outstanding, and any unused accrued paid personal time off days, as of the Date of Termination. Any benefits to which Executive or his beneficiaries may be entitled to under the plans and programs described in section 5(b) above, or any other applic
a
ble plans and programs, as of his Date of Termination shall be determined in accordance with the terms of such plans and programs; provided, however, that the first six months of the Executive's cost of continued "COBRA" medical coverage, should such cove
rage be elected, shall be the same as the cost paid by active executives of the Company for group health coverage. In addition, the Executive shall continue to vest in the Options in accordance with the terms set
forth in section 4(c) for the remainder o
f the Term. Except as provided in this section 6(d) in connection with a Wrongful Termination, (x) the Company shall have no further liability to the Executive or the Executive's heirs, beneficiaries or estate for damages, compensation, benefits, severan
c
e, indemnities or other amount of whatever nature and (y) the Executive shall be under no obligation to mitigate his damages or to seek Other Employment; provided that, as indicated in this section 6(d), any income the Executive earns from Other Employmen
t
shall reduce payments by the Company under section 6(d)(i). From time to time, u...
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