Attached files
| file | filename |
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| 8-K - WORLDGATE COMMUNICATIONS INC | v190583_8k.htm |
| EX-10.2 - WORLDGATE COMMUNICATIONS INC | v190583_ex10-2.htm |
| EX-99.1 - WORLDGATE COMMUNICATIONS INC | v190583_ex99-1.htm |
| EX-10.3 - WORLDGATE COMMUNICATIONS INC | v190583_ex10-3.htm |
Joel
I. Boyarski
116
Spruce Street
Philadelphia,
PA 19106
As of
July 13, 2010
Chief
Executive Officer
WorldGate
Communications, Inc.
WorldGate
Service, Inc.
3190
Tremont Avenue
Trevose,
PA 19053
Dear
George:
As you
requested, effective immediately, I am hereby tendering my resignation (1) as
Chief Financial Officer, Treasurer and Senior Vice President, Finance and
Administration of WorldGate Communications, Inc. and each of WorldGate
Communications, Inc.’s subsidiaries and (2) with respect to any other offices or
positions I may hold in WorldGate Communications, Inc. or any of its affiliates,
including without limitation WorldGate Service, Inc., and each of WorldGate
Communications, Inc.’s subsidiaries (collectively with WorldGate Communications,
Inc., and its and their predecessors, successors, parents, subsidiaries,
affiliates, related entities, past and current officers, directors, members,
board members, employees, shareholders, agents, attorneys, representatives and
assigns, in their official and individual capacities, the
“Company”).
Effective
immediately and through August 20, 2010, I agree to serve as, and I agree that
my title shall be, Principal Financial Officer and Principal Accounting Officer
of WorldGate Communications, Inc., including all duties and responsibilities
associated therewith, and effective immediately through October 20, 2010, I
agree as an employee of WorldGate Service, Inc. to provide transition support as
and when requested by the Company.
We have
mutually agreed that my resignation is to be treated as a termination without
cause effective on October 20, 2010 under that certain Employment Agreement
between me and the Company dated April 6, 2009.
On
October 20, 2010, WorldGate Service, Inc., WorldGate Communications, Inc. and I
agree to execute the letter agreement attached as Exhibit A hereto, which
details among other things our severance agreement and my release of claims
against the Company. In consideration for the continuation of my
employment through October 20, 2010 and for the agreement of WorldGate Service,
Inc. and WorldGate Communications, Inc. to execute the letter agreement attached
as Exhibit A hereto, I acknowledge and agree that any performance share grant
agreements for which I am a grantee, including the Performance Share Grant
Agreement, dated October 3, 2007, and any restricted shares granted thereunder
are hereby terminated in full effective as of July 13, 2010 prior to the
existence of any right of issuance, payment or other benefit.
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Sincerely,
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/s/
Joel I. Boyarski
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Joel
I. Boyarski
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Accepted
and agreed:
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WorldGate
Communications, Inc.
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By:
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/s/ George E. Daddis Jr.
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Name:
George E. Daddis Jr.
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Title:
Chief Executive Officer and President
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Date:
July 13, 2010
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WorldGate
Service, Inc.
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By:
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/s/ George E. Daddis Jr.
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Name:
George E. Daddis Jr.
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Title:
Chief Executive Officer and President
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Date:
July 13,
2010
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2
EXHIBIT
A
Joel
I. Boyarski
116
Spruce Street
Philadelphia,
PA 19106
As of
October 20, 2010
Chief
Executive Officer
WorldGate
Communications, Inc.
WorldGate
Service, Inc.
3190
Tremont Avenue
Trevose,
PA 19053
Dear
George:
As we
discussed, effective as of July 13, 2010, I have previously tendered my
resignation as (1) as Chief Financial Officer, Treasurer and Senior Vice
President, Finance and Administration of WorldGate Communications, Inc. and each
of WorldGate Communications, Inc.’s subsidiaries and (2) with respect to any
other offices or positions I may hold in WorldGate Communications, Inc. or any
of its affiliates, including without limitation WorldGate Service, Inc., and
each of WorldGate Communications, Inc.’s subsidiaries (collectively with
WorldGate Communications, Inc., and its and their predecessors, successors,
parents, subsidiaries, affiliates, related entities, past and current officers,
directors, members, board members, employees, shareholders, agents, attorneys,
representatives and assigns, in their official and individual capacities, the
“Company”). I am hereby tendering my resignation with respect to any
other offices or positions I may hold in the Company effective as of October 20,
2010 (the “Resignation Date”). We have mutually agreed that my
resignation is to be treated as a termination without cause effective on the
Resignation Date under that certain Employment Agreement between me and the
Company dated April 6, 2009 (the “Employment Agreement”).
The
Employment Agreement calls for me to be provided with certain post-termination
benefits in the event that my employment is terminated by the Company without
cause. In exchange for my resignation and undertakings in this
letter, and in exchange for the general release upon which any severance
benefits are conditioned by the Employment Agreement, which release is set forth
in this letter, the Company is offering me the following severance benefits (the
“Severance Benefits”):
(a) beginning
with the next regular payday following the Resignation Date, and in accordance
with the Company’s regularly-scheduled paydays thereafter, the Company will
continue to pay me my base salary amount of $7,510.62 every two weeks (which
equals approximately $195,276 annually), less applicable withholding for taxes
and applicable payroll deductions, from the Resignation Date through April 20,
2011 (the “Severance Period”), with the first payment to be retroactive to the
Resignation Date;
(b) on
the next regular payday following the Resignation Date for which payroll has not
been previously processed, the Company will pay me for 160 hours of earned but
unused CTO;
A-1
(c) notwithstanding
anything to the contrary in the Company’s 2003 Equity Incentive Plan, as amended
to date (the “2003 Plan”) or any other equity compensation plan of the Company,
or in any award agreement issued to me under equity compensation plan of the
Company or otherwise, if and to the extent any options I hold were vested as of
the Resignation Date, then any such options will continue to be exercisable (as
to such vested portion only) until the earlier of (A) 5:00pm Eastern time on
October 20, 2011 or (B) the stated expiration date of such option assuming that
I did not resign my employment with the Company, and shall thereupon terminate
if not so exercised; and
(d) during
the Severance Period, the Company will pay 79.8% of the cost of health, dental
and vision benefits elected by me through COBRA. COBRA notice and
coverage will begin upon the Resignation Date.
Notwithstanding
the foregoing, if at any time during the Severance Period I breach the terms of
the Non-Disclosure, Non-Circumvention and Non-Competition Agreement dated April
6, 2009 or the Employee Confidential Information, Nonsolicitation and Invention
Assignment Agreement dated May 29, 2009 (collectively, the “Non-Disclosure
Agreements”), or the terms of this letter, I shall have no further right to
receive the Severance Benefits. I also agree that I will return to
the Company any Severance Benefits (or portions thereof) made to me for any time
period after I first breach either Non-Disclosure Agreement or the terms of this
letter. During the Severance Period, I will immediately notify the
Company, in writing, of the date on which I will begin non-competing employment
with another company, my position and annual salary or wages. During
the Severance Period, the Company may reasonably request in writing from me, and
I will not withhold, information reflecting my employment status and salary,
including my paystubs and earnings statements.
I
acknowledge that I am receiving the Severance Benefits outlined above in
consideration, the sufficiency of which is hereby acknowledged, for my
undertakings set forth in this letter, including releasing and waiving my rights
to claims referred to below, and that I would not otherwise be entitled to
receive the Severance Benefits.
I agree
that the Severance Benefits shall be in full and complete satisfaction of any
and all sums which are now or might hereafter become owing to me for services
rendered by me during my employment, pursuant to the Employment Agreement or in
connection with my resignation of employment. I acknowledge that I
have received from the Company all wages, expense reimbursements, accrued but
unused vacation pay, and incentive compensation of all types, including deferred
or foregone salary or cash or equity compensation, due and owing to me by the
Company. I hereby waive all claims or entitlement to any deferred
salary, and to any unvested stock option or other unvested equity grants, and I
also waive any entitlement to any unvested stock options. I
acknowledge this letter does not constitute an admission of wrongdoing of any
kind by me or by the Company and agree that I have not suffered any wrongdoing
by the Company. I acknowledge and agree that I have not suffered any
discrimination or harassment based on any category protected by law including,
but not limited to, age, religion, race, gender, sexual orientation, national
original, and disability. I acknowledge and represent that the
Company has not violated or denied me any right under the Family Medical Leave
Act (FMLA), or any other federal, state or local law, statute or
ordinance. I acknowledge and agree that the Company has not
interfered with, restrained, or denied the exercise of or the attempt to
exercise any rights under the FMLA, and that the Company has not discriminated
against or retaliated against me in any way regarding the exercise of any rights
under the FMLA. I agree that my resignation from the Company is
final, and that the Company has no obligation to consider me for rehire or
reinstatement. I represent that all of the factual representations
made herein, which induced the Company to enter into this letter, are true in
all material respects.
A-2
I agree
to provide the Company transition services during the Severance Period to assist
the Company in transitioning my job responsibilities to other employees or
consultants of the Company.
I
acknowledge and agree that all of my options that were not vested as of the
Resignation Date and all other equity or similar awards granted to me under the
2003 Plan or otherwise, including all performance shares, terminate in full upon
the Resignation Date prior to the existence of any right of exercise, issuance, payment or other
benefit thereunder. I also acknowledge and understand that as a
result of the extension of my exercise period for vested stock options described
in paragraph (c) above, any such stock options affected thereby that were
granted as incentive stock options will be treated for tax purposes as
non-qualified stock options, and I will be solely responsible for any tax
consequences to me resulting from such change in treatment.
I agree
that I will not, at any time following the Resignation Date, disparage the
Company or any of the people or organizations associated with it currently, in
the past, or in the future; and that I will not otherwise do or say anything
that would harm their respective business or reputation. The Company
agrees that it will not, at any time following the Resignation Date, disparage
me; and that the Company will not otherwise do or say anything that would harm
my reputation. I shall not hold myself out to any customers or any
other third parties as a representative or employee of the Company. I
will not enter onto the Company’s premises unless expressly invited to do so by
the Chief Executive Officer of the Company. I agree that all Company
paid fringe benefits, including life insurance, long-term disability insurance,
short-term disability insurance, and any other Company bonus program or
practice, stock option program or practice, or 401(k) program, cease on the
Resignation Date (other than the period in which I may exercise any vested
options I may have that has been extended by paragraph (c) of this
letter.)
In
signing this letter I represent that I have returned to the Company any and all
Confidential Information as that term is defined in the Non-Disclosure
Agreements and other documents, materials and information related to the
business, whether present or otherwise, of the Company or its predecessors,
successors, parents, subsidiaries, affiliates, related entities, past and
present officers, directors, members, board members, employees, shareholders,
agents, attorneys, representatives and assigns, and all copies, and all keys,
credit cards, computers, phone, and other tangible property of the Company or
its predecessors, successors, parents, subsidiaries, affiliates, related
entities, past and present officers, directors, members, board members,
employees, shareholders, agents, attorneys, representatives and assigns, in my
possession or control, including without limitation all items set forth and
initialed by me on the Company Property Return Checklist attached as Schedule 1 to this
letter. I acknowledge that as an insider of the Company, I possess
material non-public information about the Company and therefore acknowledge and
agree that during the Severance Period I will be subject to and will comply with
the Company’s insider trading policy to the extent that I am in possession of
material non-public information regarding the Company or its
securities. I also acknowledge and agree that the Company shall have
no responsibility for any filings required to be made by me under applicable
securities laws (including Form 144 or Form 4 filings).
A-3
As a
material inducement to the Company to enter into this letter, and for good and
valuable consideration to be paid pursuant to this letter, I, with full
understanding of the content and legal effect of this letter and having the
right and opportunity to consult with my attorney, and on behalf of myself, my
heirs, personal representatives, beneficiaries, agents and assigns, (1)
irrevocably, unconditionally and forever release and discharge the Company from
any and all claims, actions, causes of action, grievances, suits, charges or
complaints of any kind or nature against the Company that I ever had or now has
up to and including the end of the Revocation Period, whether fixed or
contingent, liquidated or unliquidated, known or unknown, suspected or
unsuspected, and whether arising in tort, contract, statute or equity, before
any federal, state, administrative, local or private court, agency, arbitrator,
mediator or other entity, regardless of the relief or remedy, (2) agree that I
have not, and that I will not, bring, file, charge, claim, sue or cause, assist,
or permit to be brought, filed, charged or claimed any action, cause of action,
or proceeding regarding or in any way related to any of the claims released by
me in this Agreement, and (3) further agree that this Agreement will constitute
and may be pleaded as a bar to any such claim, action, cause of action or
proceeding.
Without
limiting the generality of the foregoing, it being my intention and the
Company’s intention to make this release as broad and as general as the law
permits, this release specifically includes any and all claims arising from my
employment or positions with the Company or its affiliates and any alleged
violation by the Company and its predecessors, successors, parents,
subsidiaries, affiliates, related entities, past and present officers,
directors, members, board members, employees, shareholders, agents, attorneys,
representatives and assigns of the Age Discrimination in Employment Act
of 1967, as amended; the Older Workers’ Benefits
Protection Act, as amended; the Americans with Disabilities
Act; Title VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of
1866, as amended by the
Civil Rights Act of 1991; the Pennsylvania Human Relations Act,
or any other federal, state or local statute, regulation or
ordinance, breach of an
expressed or implied contract of employment or other expressed or implied
contract claim; promissory estoppel; wrongful discharge in violation of the
public policy of Pennsylvania or any other state; any common law claim for
wrongful discharge; breach of an implied covenant of good faith and fair
dealing; tortious interference with contractual relations and/or advantageous
business relationship; public policy wrongful discharge claim; assault, battery,
conspiracy, defamation, invasion of privacy or intentional or negligent
infliction of emotional distress arising out of or involving my employment with
the Company, my resignation or any continuing effects of my employment with
and/or separation from the Company. (This letter shall not include
any claims that may arise after the date I execute this letter, any claims for
vested benefits under the Company’s 401(k) or any employee retirement plan, any
claims under this letter or any claims arising out of any vested stock options
that I may have that remain unexpired.)
Nothing
in this letter shall be construed to affect the Equal Employment Opportunity
Commission’s or any similar state or local commission’s or agency’s (the
“Commission”) independent right and responsibility to enforce the
law. I understand, however, that, while this letter, including its
general release of claims, does not affect my right to file a charge or
participate in an investigation or proceeding conducted by the Commission, it
does bar any claim I might have to receive monetary damages in connection with
any Commission proceeding concerning matters covered by this letter, including
its general release of claims.
A-4
If any
provision of this letter shall be found by a court to be invalid or
unenforceable, in whole or in part, then such provision shall be construed
and/or modified or restricted to the extent and in the manner necessary to
render the same valid and enforceable, or shall be deemed excised from this
letter, as the case may require, and this letter shall be construed and enforced
to the maximum extent permitted by law, as if such provision had not been
originally incorporated herein, as the case may be. Upon a finding by
a court, administrative agency or other tribunal of competent jurisdiction that
any release, waiver or covenant contained in this letter is void, illegal or
unenforceable, the Company and I agree to promptly execute a release, waiver or
covenant that is modified to the minimum extent necessary to be deemed legal and
enforceable by the authority making the finding.
A waiver
by the Company or me of a breach of any provision of this letter shall not
operate or be construed as a waiver or estoppel of any subsequent breach by
either me or the Company. No waiver on behalf of the Company shall be
valid unless in writing and signed by an authorized officer of the
Company. No waiver on behalf of me shall be valid unless in writing
and signed by me.
Except
for the Non-Disclosure Agreements, which remains in full force and effect, this
letter sets forth the entire agreement between me and the Company and
supersedes, voids, extinguishes and replaces all prior and contemporaneous
agreements, communications and understandings, whether written or oral, between
the Company and me. This letter shall be binding upon and inure to
the benefit of me, my heirs, executors, administrators and beneficiaries, and
shall be binding upon and inure to the benefit of the Company and its
affiliates, successors and assigns. This letter may not be altered or
modified except in writing signed by both me and the Company. The
Company and I agree that Pennsylvania law shall govern the enforceability and
construction of this letter, without regard to its principles of conflicts of
laws.
The
Company and I agree to submit any dispute (i) concerning the interpretation or
enforcement of the rights and duties under this letter, or (ii) relating to this
letter to final and binding arbitration pursuant to the National Rules for the
Resolution of Employment Disputes of the American Arbitration Association then
existing. At the request of any party, the arbitrator, attorneys,
parties to the arbitration, witnesses, experts, court reporters, or other
persons present at the arbitration shall agree in writing to maintain the strict
confidentiality of the arbitration proceedings. The arbitration shall
be conducted in Pennsylvania by a single, neutral arbitrator. The
award of the arbitrator may be enforced in any court having jurisdiction over
the award, the relevant party or such party’s assets. Pending the
submission of a dispute to arbitration, I acknowledge that money damages are an
inadequate remedy for my breach of this letter agreement because of the
difficulty of ascertaining the amount of damage that will be suffered in the
event that this letter agreement is breached. Therefore, the Company
shall be entitled to equitable relief, including an injunction and specific
performance (without the need to post bond or any other security or without
being required to submit proof of economic value), in the event of my breach of
this letter agreement or the Non-Disclosure Agreements, in addition to all other
remedies available to the Company at law or in equity. In the event
of any action or dispute arising out of my breach of this letter agreement or
the Non-Disclosure Agreements, I agree to pay the Company a reasonable sum for
attorneys’ fees incurred in bringing or defending such action and/or enforcing
any judgment granted in such action. In the event of any action or
dispute arising out of the Company’s breach of this letter agreement, the
Company agrees to pay me a reasonable sum for attorneys’ fees incurred in
bringing or defending such action and/or enforcing any judgment granted in such
action.
A-5
I agree
that I am physically and mentally able to perform all duties of the positions I
have resigned from and that I am not suffering from any injury or illness, which
I attribute to the Company. I represent and certify that I have
carefully read and fully understand all of the provisions and effects of this
letter, have knowingly and voluntarily entered into this letter freely and
without coercion, and acknowledge and agree that I have been advised in writing
to consult with an attorney prior to executing this letter, and that I have had
opportunity to do so. I represent that neither the Company nor the
Company’s agents, representatives or attorneys, have made any representations
concerning the terms or effect of this letter other than those contained in this
letter itself. I acknowledge that I have been advised that I have at
least forty-five (45) days within which to consider this letter. I
acknowledge and agree that my execution of this letter before the full
forty-five (45) day period has elapsed is a decision made by me voluntarily, and
I freely and knowingly have chosen not to wait at least forty-five (45) days to
sign this letter. I further acknowledge that I have seven (7) days from the date
this letter is executed in which to revoke my acceptance of this letter (the
“Revocation Period”); provided that all Severance Benefits shall cease
immediately upon any such revocation. To be effective, the revocation
must be in writing and delivered to WorldGate Service, Inc., 3190 Tremont
Avenue, Trevose, PA 19053, Attn: General Counsel. This letter will
not be effective or enforceable until the day after such seven (7) day period
has expired as required by law. I understand, agree and deem that the
consideration exchanged for the various releases, covenants and agreements
contained herein is sufficient and apportionable and waive any and all rights to
assert any claim of lack of sufficiency and/or apportionability of
consideration.
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Sincerely,
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Joel
I. Boyarski
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Accepted
and agreed:
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WorldGate
Communications, Inc.
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By:
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Name:
George E. Daddis Jr.
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Title:
Chief Executive Officer and President
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Date:
____________________
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WorldGate
Service, Inc.
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By:
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Name:
George E. Daddis Jr.
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Title:
Chief Executive Officer and President
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Date:
____________________
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A-6
Schedule
1
Company Property Return
Checklist
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Initials
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Item
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____
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Security
badge(s)
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____
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Company
credit card(s)
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____
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Office/Building
key(s)/passcard(s)
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____
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All company hardcopy
documents and information, including financial information
and customer lists
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____
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All company
electronic documents and information, including financial information
and customer
lists
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A-7