Exhibit 10.11
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement"), dated as of February 2, 1998,
is made by and between ECONOPHONE, INC., a Delaware corporation, having its
principal office at 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Econophone") and Xx.
Xxxxx Xxxxxx ("Executive").
WHEREAS, Econophone desires to employ Executive and Executive desires
to provide services to Econophone;
NOW, THEREFORE, in consideration of the premises and of the other
mutual covenants and conditions contained herein and for other good and valuable
consideration, the sufficiency and receipt of which are hereby acknowledged,
Econophone and Executive agree as follows:
SECTION 1. EMPLOYMENT AND TERM. (a) Econophone hereby employs Executive
commencing as of the date hereof (the "Commencement Date"). The initial term of
Executive's employment shall be three years, subject to earlier termination as
specified herein (the "Employment Term"). Any renewal or extension of the
Employment Term and this Agreement shall be subject to the mutual agreement of
Executive and Econophone.
(b) Executive shall be employed as President - North America of
Econophone, with powers and duties consistent with such position, for the
duration of the Employment Term. During the term of Executive's employment by
Econophone, Executive shall report to the President and Chief Operating Officer
of Econophone or to such other person as the Board of Directors of Econophone
shall direct.
(c) Executive shall be employed at the headquarters of Econophone in
the New York regional area.
SECTION 2. FULL-TIME EMPLOYMENT. (a) During Executive's employment by
Econophone, Executive shall devote Executive's entire business time, energy and
skill to the performance of Executive's duties hereunder and to the business of
Econophone. Executive shall faithfully and diligently perform such duties, shall
adhere to the instructions of the Chief Executive Officer, Chief Operating
Officer and Board of Directors of Econophone and shall use his best efforts to
promote the interests of Econophone consistent with the foregoing. Executive
shall adhere to all corporate policies of Econophone and, to the extent
applicable to Executive's duties hereunder, Econophone's subsidiaries and
affiliates. Executive shall not, directly or indirectly, alone or as a member of
any partnership, or as an officer, director or executive of any other
corporation, partnership or other organization, be actively engaged in or
concerned with any other
duties or pursuits which interfere with the performance
of his duties hereunder, or which may be inimical to or contrary to the best
interests of Econophone.
(b) Executive represents and warrants that he is free to be employed by
Econophone upon the terms contained in this Agreement and that he is not a party
to any employment contract or restrictive covenant or other arrangement which
could reasonably be expected to prevent, interfere with or hinder, or be deemed
to be breached by, full performance of his duties hereunder.
SECTION 3. COMPENSATION. (a) BASE SALARY. For all services rendered by
Executive in any capacity during Executive's employment under this Agreement,
including, without limitation, service as an executive, officer, or member of
any committee of Econophone or any of its subsidiaries or affiliates, Econophone
agrees to pay or cause to be paid to Executive a base salary at the rate of
$216,000 per annum, payable in equal installments in accordance with the
prevailing salary payment practices of Econophone in effect from to time (the
"Base Salary"). Executive's Base Salary shall be subject to review and increase
on an annual basis based upon changes in Executive's title, job description or
responsibilities. In the event that sickness or accident disability payments
under Econophone's insurance programs shall become payable to Executive in
respect of any period of Executive's employment hereunder the salary installment
payable to Executive hereunder in respect of his Base Salary on the next
succeeding salary installment payment date shall be an amount computed by
subtracting (i) the amount of such disability payments which shall have become
payable during the period between such date, from (ii) the salary installment
otherwise payable to Executive hereunder in respect of his Base Salary on such
date.
(b) BONUS. Executive shall be entitled to receive an annual bonus
payment from Econophone of between 25% and 75% of Executive's Base Salary to be
awarded at the discretion of the Board of Directors of Econophone based upon
Executive's contributions to Econophone with respect to the areas of
responsibility outlined on Exhibit A. Such annual bonus shall be payable no
later than 45 days after the end of each year during the Employment Term. Any
additional bonus payable to the Executive shall be at the sole discretion of the
Board of Directors of Econophone and shall be made to the extent, at such time
and in such amount as determined by the Board of Directors of Econophone in its
sole discretion.
(c) INCENTIVE COMPENSATION. In addition to the other compensation
hereunder, the Company has granted to Executive as of the Commencement Date and
in accordance with Econophone's 1996 Flexible Incentive Plan (the "Plan")
500,000 options to acquire common stock of Econophone. The terms of the vesting
and exercise of such options shall be governed by the Incentive Stock Option
Agreement attached as Exhibit B hereto and the terms of the Plan.
(d) BENEFITS. Executive shall be entitled to participate in medical,
dental, life insurance, 401(k) savings and other benefits (collectively, the
"Benefits") in accordance with the prevailing
policies of Econophone for executive employees. In addition, Executive shall be
entitled to a reimbursement for automobile expenses of up to $750.00 per month.
SECTION 4. VACATION. Executive shall be entitled to an annual vacation
of three weeks (without deduction in salary or other compensation or Benefits).
Such vacation shall be taken at such time or times as may be convenient to the
operations of Econophone and shall be consistent with the prevailing vacation
policies of Econophone.
SECTION 5. REIMBURSEMENT FOR EXPENSES. Executive is authorized to incur
reasonable and necessary traveling expenses and other reasonable and necessary
traveling expenses and other reasonable and necessary disbursements for or on
behalf of Econophone in the performance of Executive's duties during Executive's
employment under this Agreement in accordance with Econphone's prevailing
expense incurrence policies. Econophone will reimburse Executive for all such
expenses in accordance with its prevailing expense reimbursement policies upon
presentation of a properly itemized account of such expenditures and the
business reasons for such expenditures.
SECTION 6. TERMINATION OF EMPLOYMENT BY ECONOPHONE. (a) TERMINATION.
Executive shall be subject to dismissal from his position as an executive of
Econophone at any time and with or without Cause. The effect of any termination
of the employment of Executive with Cause is set forth in Section 8(a) hereof.
The effect of any termination of the employment of Executive without Cause is
set forth in Section 8(d) hereof.
(b) DEFINITION OF CAUSE. The term "Cause" shall be defined to include:
(i) any wilful breach by Executive of the performance of any of his duties
pursuant to this Agreement; (ii) any wilful breach by Executive of any other
obligation under this Agreement; (iii) any attempt by Executive to secure any
personal profit in connection with the business of Econophone, other than as
expressly provided for in this Agreement; (iv) failure by Executive to devote
sufficient business time to the affairs of Econophone; (v) material breach by
Executive of any of the representations or warranties contained in this
Agreement; (vi) activities of Executive inimical to the best interests of
Econophone; PROVIDED, HOWEVER, that such activities shall not include mistakes
in business judgment made in good faith; (vii) conviction of, or a plea of NOLO
CONTENDERE to, a felony or any act of fraud, whether or not related to the
affairs of Econophone; (viii) subject to Sections 6(c) and 6(d) below, death or
disability of Executive; and (ix) any other insubordination, dishonesty, moral
turpitude or other misconduct that, in the absence of any agreement in writing
between the parties hereto, would entitle Econophone to terminate Executive's
employment in accordance with its prevailing employment policies; PROVIDED
FURTHER, HOWEVER, that in the case of actions constituting Cause pursuant to
clauses (i), (ii), (iv), (v) or (vi) above that are susceptible to cure,
Econophone shall provide Executive with no less than 30 days notice of such
deficiencies prior to any termination as a result thereof and, during such prior
notice period, shall afford Executive the opportunity to remedy such deficiency
to Econophone's reasonable satisfaction.
(c) TERMINATION BY REASON OF INCAPACITY. In the event that Executive
suffers a disability which prevents him from substantially performing his duties
under this Agreement for a period of at least sixty (60) calendar days within a
365-calender day period (whether consecutive or non-consecutive) (a
"Disability"), Econophone shall have the right to dismiss Executive for Cause
upon ten (10) calendar days written notice. In the event of any dispute between
Econophone and Executive as to whether Executive has suffered a Disability, the
determination of whether Executive has suffered a Disability shall be made by an
independent physician selected by Econophone, and the decision of such physician
shall be binding upon Econophone and Executive.
(d) TERMINATION BY DEATH. In the event Executive dies during the
Employment Term, this Agreement shall terminate automatically, such termination
to be effective on the date of Executive's death as if Executive had been
terminated for Cause as of such date.
SECTION 7. TERMINATION OF EMPLOYMENT BY EXECUTIVE. The employment of
Executive under this Agreement shall be deemed to have been terminated by
Executive for "Good Reason" if Executive voluntarily terminates employment
following the occurrence of a material breach by Econophone of any of its
obligations under this Agreement; PROVIDED, HOWEVER, that Executive shall
provide written notice of such material breach within thirty (30) days after
Executive's discovery of such material breach and Econophone shall have the
opportunity to cure such default within thirty (30) days after receipt of such
written notice. If Econophone does not cure the default within such time, then
Executive's employment shall be deemed to have been terminated for Good Reason
by Executive, thirty (30) days after receipt of such written notice by
Econophone, or such shorter period as Econophone may elect. No resignation or
other voluntary termination by Executive other than pursuant to this Section 7
shall be deemed under any circumstances to be a termination with Good Reason, a
"constructive termination" or otherwise not in breach of Executive's obligations
under this Agreement.
SECTION 8. EFFECT OF TERMINATION. (a) FOR CAUSE; WITHOUT GOOD REASON.
In the event of termination of this Agreement (x) by Econophone for Cause
(except by reason of death or Disability) or (y) by Executive without Good
Reason, Econophone shall pay to Executive any Base Salary accrued but not paid
to Executive prior to the date of such termination and Executive shall be
entitled to any Benefits which may then be due under any of the benefit or other
plans in which Executive is a participant. Executive shall forfeit any right to
any bonus not previously paid to Executive by Econophone and shall not be
entitled to any further compensation or benefits hereunder (including, without
limitation, the Benefits). In addition, Executive shall forfeit all unvested
options held by Executive in accordance with the terms of Executive's Incentive
Stock Option Agreement.
(b) BY REASON OF EXECUTIVE'S DEATH. In the event of the termination of
this Agreement by reason of the death of the Executive, Econophone (i) shall pay
Executive's legal representatives (A) any unpaid salary installment in respect
to Executive's Base Salary to the last day of the month in which Executive's
death occurs, and (B) any bonus previously awarded but not yet paid to the
Executive and (ii) shall continue to provide (subject to any applicable
eligibility criteria) any medical and dental benefits comprising part of the
Benefits (or comparable benefits) to the spouse and any dependents of Executive
at the time of Executive's death, for a period of twelve (12) months from the
last day of the month in which Executive's death occurs. In addition, Executive
shall forfeit all unvested options held by Executive at the time of his death in
accordance with the terms of Executive's Incentive Stock Option Agreement;
provided that if Executive's death occurs in the first twelve (12) months of
Executive's employment by Econophone, then 100,000 of the options granted to
Executive in accordance with the terms of Executive's Incentive Stock Option
Agreement shall become immediately vested and exercisable.
(c) BY REASON OF THE INCAPACITY OF THE EXECUTIVE. In the event of the
termination of this Agreement by reason of the Disability of the Executive,
Econphone (i) shall pay the Executive (A) Executive's Base Salary to the last
day of the month in which such termination occurs and (B) any bonus previously
awarded but not yet paid to the Executive and (ii) shall continue to provide
(subject to any applicable eligibility criteria) any medical benefits comprising
part of the Benefits (or comparable benefits) to Executive, Executive's spouse
and any dependants of Executive who enjoyed such medical benefits at the time of
Executive's Disability, for a period of twelve (12) months from the last day of
the month in which such termination occurs. In addition, Executive shall forfeit
all unvested options held by Executive at the time of his termination in
accordance with the terms of Executive's Incentive Stock Option Agreement;
provided that if Executive's termination by reasons of Disability occurs in the
first twelve (12) months of Executive's employment by Econophone, then 100,000
of the options granted to Executive in accordance with the terms of Executive's
Incentive Stock Option Agreement shall become immediately vested and
exercisable.
(d) WITHOUT CAUSE; FOR GOOD REASON. In the event of termination of this
Agreement (x) by Econophone without Cause or (y) by Executive for Good Reason,
Econophone (i) shall pay the Executive (A) Executive's Base Salary through the
date of termination, in accordance with its prevailing salary payment practices
(as determined by Econophone in its sole discretion), (B) within 30 days of such
termination, a severance payment in the amount equal to six (6) month's Base
Salary at the time of termination (provided if such termination occurs after
Executive shall have been employed by Econophone for more than one year then
such severence payment shall increase to one year's base salary at the time of
termination) and (C) any bonus previously awarded to but not yet paid to
Executive and (ii) shall continue to provide Executive with Benefits (or
comparable benefits), including (subject to applicable eligibility criteria)
medical benefits comprising a portion of the Benefits (or comparable benefits)
in respect of Executive's spouse and any dependents of the Executive as of the
date of such termination, until six (6) months following such termination
(provided if such termination occurs after Executive shall have been employed by
Econophone for more than one year then such benefits shall be continued for one
year from the date of termination) . In addition, in the event that any such
termination by Econophone without Cause or by Executive for Good Reason occurs
in the first twelve (12) months of Executive's employment by Econophone, 100,000
of the options granted to Executive in accordance with the terms of Executive's
Incentive Stock Option Agreement shall become immediately vested and
exercisable.
(e) SOLE REMEDY. Executive shall not be entitled to any form of
severance benefits, including, without limitation, benefits otherwise payable
under any of Econophone's regular severance policies, other than those set forth
herein. In consideration of the compensation and benefits available hereunder,
Executive, except as otherwise expressly provided in this Agreement,
unconditionally releases Econophone and its present and future Affiliates,
directors, officers, employees and agents, or any of them, from any and all
claims, liabilities and obligations of any nature pertaining to termination of
Executive's employment hereunder. Executive and Econophone further agree that
upon any termination of Executive's employment in accordance with the terms
hereof, each of Executive and Econophone shall act in good faith in connection
with any such termination and neither Executive nor Econophone shall disparage
or otherwise defame the business reputation of the other party hereto.
SECTION 9. NON-COMPETITION AND PERMITTED BUSINESS ACTIVITIES.
NON-COMPETE DURING EMPLOYMENT TERM. (a) Executive agrees that during the
Employment Term of this Agreement, except with the written consent of
Econophone, such Executive shall not (i) accept any form of employment with
remuneration from any business related to the provision of telecommunications
services (a "Competing Business") or (ii) hold any beneficial ownership
interest, directly or indirectly, in any Competing Business; provided however,
that none of the foregoing shall prohibit Executive from owning, for the purpose
of passive investment, less than 5% of any class of securities of another
publicly-held corporation.
(b) Executive agrees that during the term of this Agreement, and for a
period of twelve (12) consecutive months after termination of employment for any
reason, Executive shall not, except in the course of his duties hereunder,
directly or indirectly induce or attempt to induce or otherwise counsel, advise,
solicit or encourage any person to leave the employ of Econophone to accept
employment with any person or entity other than Econophone.
(c) Executive agrees that during the term of this Agreement, and for a
period of twelve (12) consecutive months after termination of such employment
for any reason, Executive shall not directly or indirectly solicit, induce or
attempt to solicit, induce or otherwise counsel, advise, or encourage any
customer, agent, dealer, distributor or consultant of Econophone to become a
customer, agent, dealer, distributor or consultant, directly or indirectly, of
another person or entity other than Econophone.
SECTION 10. OWNERSHIP OF WORK PRODUCT. (a) Executive acknowledges
that during the Employment Term, he may conceive of, discover, invent or create
inventions, improvements, new contributions, literary property, material, ideas
and discoveries, whether patentable or copyrightable or not (collectively, "Work
Product"), and that various business opportunities may be presented to him by
reason of his employment by Econophone. Executive acknowledges that, unless
Econophone otherwise agrees in writing, all such Work Product and business
opportunities shall be owned by and belong exclusively to Econophone and that he
shall have no personal interest therein.
(b) Executive shall further, unless Econophone otherwise agrees in
writing, (i) promptly disclose any such Work Product and business opportunities
to Econophone, (ii) assign to Econophone, upon request and without additional
compensation, the entire rights to such Work Product and business opportunities,
(iii) execute all documents necessary to carry out the foregoing and (iv) give
testimony in support of his inventorship or creation in any appropriate case
upon request of the senior management of Econophone. Executive agrees that he
will not assert any rights to any Work Product or business opportunity as having
been made or acquired by him prior to the date of this Agreement except for Work
Product or business opportunities, if any, disclosed to and acknowledged by
Econophone in writing prior to the date hereof.
(c) The provisions of this Section 10 shall survive for a period of
three (3) years following expiration, cancellation or other termination of this
Agreement.
SECTION 11. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. (a) Executive
shall hold in a fiduciary capacity for the benefit of Econophone all
Confidential Information (as defined below) and shall not, during the term of
Executive's employment hereunder or after the termination of such employment,
communicate or divulge any Confidential Information to, or use any Confidential
Information for the benefit of, any person (including Executive) other than
Econophone, affiliates of Econophone or persons designated in writing by
Econophone. "Confidential Information" shall mean customer lists, costs and
specifications of Econophone's products and services, know-how, trade secrets,
financial data, operational methods, marketing and sales information, marketing
plans and strategies, business plans, personnel information, research projects,
development plans or projects and all other information of a proprietary nature.
Upon termination of Executive's employment with Econophone for any reason
whatsoever, Executive shall promptly return to Econophone any documents or other
written, recorded or graphic matter containing, relating or referring to any
Confidential Information (and all copies and extracts thereof and any notes
relating thereto) in Executive's possession or control and deliver to Econophone
a written confirmation that all such Confidential Material has been so returned.
(b) The provisions of this Section 11 shall survive for a period of
three (3) years following expiration, cancellation or other termination of this
Agreement.
SECTION 12. LIABILITY FOR ACTIONS OR INACTIONS; INDEMNIFICATION.
Executive shall not be liable, in damages or otherwise, to Econophone for any
act or failure to act on behalf of Econophone, performed within the scope of his
authority conferred by the terms of his employment under this Agreement, unless
such act or omission constituted Cause or fraudulent or willful misconduct, was
performed or omitted in bad faith or constituted gross negligence.
(b) Econophone shall indemnify and hold harmless Executive from and
against any and all claims, losses, damages and expenses incurred by reason of
any acts, omission or alleged acts or omissions undertaken or omitted (a) in the
good faith belief that such act or omission was in
furtherance of the business of Econophone; (b) not in contravention of this
Agreement; and (c) not in contravention of the standard set forth in Section
12(a) hereof, incurred as a result of any actual or threatened civil, criminal,
administrative or investigative action, proceeding or claim; PROVIDED, HOWEVER,
that if Executive ultimately is found by any court of competent jurisdiction or
by any arbitrator to have acted or omitted to act in a manner which is in
contravention of the standard set forth in any of the foregoing clauses (a), (b)
or (c), Executive shall repay all amounts paid or reimbursed by Econophone.
Econophone shall not be required to indemnify Executive for any amount paid or
payable by Executive in the settlement of any action, proceeding or
investigation agreed to without the written consent of Econophone (which consent
shall not unreasonably be withheld or delayed). Promptly after receipt by
Executive of notice of his involvement in any action, proceeding or
investigation, Executive shall, if a claim in respect thereof for
indemnification is to be made by Executive against Econophone under this
Section, notify Econophone in writing of such involvement. No failure by
Executive to so notify Econophone shall relieve Econophone from the obligation
to indemnify Executive unless and to the extent that Econophone shall have been
actually prejudiced by such failure. To the extent it wishes, Econophone shall
be entitled to assume the defense of any action that is the subject of this
Section; PROVIDED, HOWEVER, that Executive may retain his own counsel (i) at his
own expense in order to participate in such defense, and (ii) at the expense of
Econophone if representation of both Executive and Econophone would, in the
reasonable judgment of Executive, be inappropriate due to actual or potential
differing interests between them.
(c) The provisions of this Section 12 shall survive the expiration,
cancellation or other termination of this Agreement until any liability under
all applicable statutes of limitations is barred.
(d) The provisions of this Section 12 are in addition to any
indmnifications rights that Executive may have pursuant to Econophone's
Certificate of Incorporation, By-laws and/or policies applicable to executive
employees.
SECTION 13. ENTIRE AGREEMENT. This entire Agreement, together with the
Incentive Stock Option Agreement that is an Exhibit hereto, contains the entire
understanding of the parties with respect to the subject matter hereof and
supersedes any and all prior agreements and understandings, both written and
oral, of the parties with respect to the subject matter hereof.
SECTION 14. GOVERNING LAW; JURISDICTION; SERVICE OF PROCESS. (a) This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York (other than its rules of conflicts of laws to the extent that
the application of the laws of another jurisdiction would be required thereby).
(b) With respect to any suit, action, or proceedings relating to this
Agreement ("Proceedings"), the parties irrevocably:
(i) submit to the non-exclusive jurisdiction of the courts of
the State of New York and the United States District Court located in
the Borough of Manhattan in New York City; and
(ii) waive any objection that they may have at any time to the
laying of venue of any Proceedings brought in any such court; waive any
claim that such Proceedings have been brought in an inconvenient forum;
and further waive the right to object, with respect to such
Proceedings, that such court does not have jurisdiction over such
party.
(c) The parties irrevocably consent to service of process given in the
manner provided for notices in Section. Nothing in this Agreement shall affect
the right of either party to serve process in any other manner permitted by law.
SECTION 15. SPECIFIC ENFORCEMENT. If Executive breaches, or threatens
to commit a breach of, any of the provisions of Sections 9, 10, or 11 hereof,
Econophone shall have the right and remedy to have such provision specifically
enforced by any court having jurisdiction, it being acknowledged and agreed that
any such breach or threatened breach will cause irreparable injury to Econophone
and that money damages will not provide an adequate remedy to Econophone.
Nothing in this Section 14 shall be construed to limit the right of Econophone
to collect money damages in the event of a breach of any of the provisions of
this Agreement, including, without limitation, Sections 9, 10 and 11 hereof.
SECTION 16. THIRD PARTY BENEFICIARIES. None of the provisions of this
Agreement shall be for the benefit of or enforceable by any third party,
including, without limitation, any creditor of Econophone or of Executive. No
such third party shall obtain any right under any provision of this Agreement or
shall by reason of any such provision make any claim in respect of any debt,
liability, or obligation (or otherwise) against Econophone.
SECTION 17. WAIVER OF JURY TRIAL. Each party waives, to the fullest
extent permitted by applicable law, any right it may have to a trial by jury in
respect of any litigation arising out of or relating to this Agreement and
Executive's employment by Econophone. Each party (a) certifies that no
representative, agent or attorney of the other party has represented, expressly
or otherwise, that such other party would not, in the event of litigation, seek
to enforce the foregoing waiver; and (b) acknowledges that it has been induced
to enter into this Agreement by, among other things, the mutual waivers and
certifications set forth in this Section.
SECTION 18. EXPENSES. Each party hereto shall assume and pay its own
expenses incident to the negotiation and execution of this Agreement, the
preparation for carrying it into effect and the consummation of the transactions
contemplated hereby. Without limiting the generality of the foregoing, each
party shall pay all legal fees and other fees to consultants and advisors
incurred by it relating to this Agreement and such transactions and shall
indemnify and hold the other party
harmless from and against any claims for such expenses and fees.
SECTION 19. WAIVERS AND AMENDMENTS. This Agreement may be amended,
superseded, canceled, renewed or extended and the terms hereof may be waived,
only by a written instrument signed by each party, or, in the case of a waiver,
by the party waiving compliance. Except where a specific period for action or
inaction is provided herein, no delay on the part of a party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof. Neither
any waiver on the part of a party of any such right, power or privilege, nor any
single or partial exercise of any such right, power or privilege shall preclude
any further exercise thereof or the exercise of any other such right, power or
privilege.
SECTION 20. NOTICES. All notices or other communications required or
permitted to be given hereunder shall be in writing and shall be delivered by
hand or sent, postage prepaid, by registered, certified or express mail or
reputable overnight courier service and shall be deemed given when so delivered
by hand, or if mailed, three days after mailing (one business day in the case of
express mail or overnight courier service), as follows:
if to Econophone:
Econophone, Inc.
00 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
if to Executive:
Xx. Xxxxx Xxxxxx
000 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
with a copy to:
Xxxx Xxxxxxxx, Esq.
Xxxxxxx & Xxxxxx, P.C.
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
SECTION 21. CALCULATIONS. All calculations of Dollar amounts hereunder
shall be rounded to the nearest whole cent. Equidistant amounts shall be rounded
upwards.
SECTION 22. SEVERABILITY. If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall be held
invalid, the remainder of this Agreement or
the application of such provision to other persons or circumstances shall not be
affected thereby; PROVIDED, HOWEVER, that the parties shall negotiate in good
faith with respect to an equitable modification of the provision or application
thereof held to be invalid. To the extent that it may effectively do so under
applicable law, each party hereto hereby waives any provision of law, which
renders any provision of this Agreement invalid, illegal or unenforceable in any
respect.
SECTION 23. SUCCESSORS AND ASSIGNS. Except as otherwise specifically
provided in this Agreement, this Agreement shall be binding upon and inure to
the benefit of the parties, and their legal representatives, and permitted
successors and assigns.
SECTION 24. CAPTIONS. All headings, paragraph titles and captions
contained in this Agreement are inserted only as a matter of convenience and for
reference and in no way define, limit, extend or describe the scope of this
Agreement or the intent of any provisions hereof.
SECTION 25. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be on original and all of which, when taken
together, shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
ECONOPHONE, INC.,
By:
---------------------------
Name:
Title:
XX. XXXXX XXXXXX
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Exhibit A
BONUS CRITERIA
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Exhibit B
INCENTIVE STOCK OPTION AGREEMENT
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