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EXHIBIT 10.15
TERMINATION OF EXECUTIVE SERVICES AGREEMENT
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This Termination of Executive Services Agreement ("Agreement") made as of the
31st day of October, 2000, by and between Telemonde, Inc., a Delaware
Corporation having its principal place of business at 44 Portman Square, 4th
Floor, London W1H 9FH England ("Telemonde") and Paul E. Donofrio, an individual
residing at 12 Castle Court, Nesconset, New York 11767 ("Donofrio").
Whereas, the parties entered into that certain Executive Services Agreement
dated the 22nd day of February 2000, by and between Telemonde and Donofrio ("The
Executive Services Agreement").
WHEREAS, Donofrio terminated his employment with Telemonde effective October 31,
2000 ("Termination Date"); and
Whereas, the parties desire to settle and compromise all issues of compensation,
benefits, stock options due or becoming due under the Executive Services
Agreement, and provide for the continuation of Donofrio as a member of the Board
of Directors of Telemonde, all upon the terms and conditions, all as hereinafter
described;
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which
is acknowledged, and in consideration of the mutual covenants contained herein
and of the mutual benefits herein provided, the parties hereto agree as follows:
1. Effective October 31, 2000, Donofrio will voluntarily, permanently and
irrevocably relinquish all duties as Executive Vice President and Chief
Financial Officer of Telemonde, or otherwise as an employee of
Telemonde, but will remain a member of Telemonde's Board of Directors
for a period that begins with the execution of this Agreement and
continues until the Annual Meeting of Telemonde Stockholders in
calendar year 2003 (unless Donofrio resigns therefrom or is terminated
for cause pursuant to Telemonde's by-laws, charter or by operation of
law), upon the terms as covered by a Board Member Services Agreement
attached hereto as Exhibit A.
2. Telemonde shall continue to pay Donofrio his base salary at a rate of
$250,000 per annum through November 15, 2000 (to account for unused
vacation and unused unavoidable absence time), on the same basis as
paid prior to termination (irrespective of whether Donofrio is
reemployed), and Donofrio acknowledges and agrees that except as
otherwise provided in this Agreement and associated Exhibit, he shall
not be entitled to any further payments, compensation or benefits from
Telemonde arising from the Executive Services Agreement after November
15, 2000.
3. Telemonde has provided prepaid Medical coverage for Donofrio and his
family and Telemonde agrees to keep this prepaid Medical coverage in
effect for Donofrio and his family through March 31, 2001.
4. Telemonde has provided prepaid Life Insurance coverage for Donofrio and
Telemonde agrees to keep this prepaid Life Insurance coverage in effect
for Donofrio through March 21, 2001.
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5. Telemonde shall continue to pay Donofrio an automobile and gasoline
allowance of $700 per month through November 15, 2000.
6. Under the terms of the Executive Services Agreement, Telemonde
acknowledges that it would have owed Donofrio a $150,000 guaranteed
bonus, and a $50,000 discretionary bonus (totaling $200,000 in
bonuses), on January 1, 2001. Since the above referenced Executive
Services Agreement was executed between the parties on the 22nd day of
February 2000, Donofrio has a significant interest in the two bonuses
described above within this paragraph "6" and Telemonde agrees that
said bonuses are deemed vested, due and owing as of the date hereof.
Also, under the Executive Services Agreement, Donofrio vested in
nonqualified stock options of 1,400,000 on June 1, 2000 and 400,000 on
September 1, 2000. Telemonde acknowledges that these vested
nonqualified stock options (totaling 1,800,000) are fully exercisable
and carry an exercise price of $0.50 per share. Therefore, in
consideration of the $200,000 in bonuses and 1,800,000 nonqualified
stock options as well as for valuable consideration towards complete
and full settlement and resolution of all issues between Telemonde and
Donofrio, Telemonde agrees to provide Donofrio with 675,000 Telemonde
shares of Rule 144 Restricted Stock by November 15, 2000. Upon the
granting of these shares, Donofrio will waive his vested interest in
the bonuses and nonqualified stock options described above within this
paragraph "6".
7. By November 15, 2000, Telemonde agrees to reimburse Donofrio for any
legal and/or professional fees incurred by him in connection with this
agreement, and any associated employment agreement made by Donofrio, up
to a maximum of $6,000.
8. Donofrio further agrees that the payments provided and rights afforded
to him in paragraphs "2" through "7": (a) equal or exceed any payment,
benefit, or other thing of value to which he might otherwise be
entitled under any policy, plan or procedure of Telemonde and (b) are
in full discharge of any and all of Telemonde's liabilities and
obligations to him, whether written or oral, arising out of The
Executive Services Agreement.
9. The existence and terms of this Agreement are and shall be deemed
confidential and shall not be disclosed by Donofrio or by any party
acting on behalf of Donofrio to any person or entity, except: (a) in
any proceeding arising out of an alleged breach of this Agreement; (b)
as may be required by law; and (c) to Donofrio's attorneys, spouse,
accountants, financial advisors, and/or prospective employers or
partners, provided that the person to whom disclosure is made aware of
the confidentiality provisions of this Agreement and such person(s)
agrees to keep the terms of this Agreement confidential. Except
pursuant to an order of a government body or court of competent
jurisdiction, and then only provided that Donofrio has complied with
the next sentence of this paragraph "9" of this Agreement, neither
Donofrio nor any party acting on his behalf shall disclose to or
discuss with representatives of the media or any other person or
entity, or make or cause to be made or publish or cause to be published
any statement of any kind disclosing or discussing, any information
concerning: (a) any matters relating directly or indirectly to this
Agreement or the terms thereof; (b) Donofrio's termination from
employment with Telemonde except that Donofrio may state that he
resigned to pursue
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other interests pursuant to an agreement with Telemonde; or (c) the
merits of any claim or proceeding against Telemonde or the Telemonde
Entities. Donofrio agrees to give Telemonde notice of any and all
attempts to compel disclosure of any information he is prohibited from
disclosing by this paragraph "9", by written or telephonic notice of
such an attempt to Kevin Maxwell, Chairman, Telemonde, Inc., 40 Portman
Square, 4th Floor, London W1H 9FH, England, +44 20 7486 4900. Donofrio
shall provide such written notice at least five (5) days before
compliance with any subpoena or order is required, but if the subpoena
or order requires compliance within less than five days, Donofrio shall
provide such telephonic notice, within one (1) business day after
receiving notice that an attempt will be or has been made to compel
such disclosure.
10. Telemonde agrees not to publicly disparage (or induce or encourage
others to publicly disparage) Donofrio or to disclose the facts or
circumstances surrounding his separation from employment with Telemonde
unless required by law. For purposes of this paragraph, the term
"publicly disparage" means any statements made to the press by
Telemonde's senior officers in their official capacity, or any
statements made officially by Telemonde that adversely affect
Donofrio's personal or professional reputation.
11. Any non-disclosure provision in this Agreement does not prohibit or
restrict Telemonde or Donofrio from responding to any inquiry about
this Agreement or its underlying facts and circumstances from the
Securities and Exchange Commission (SEC), the NASD, any other
securities related self-regulatory organization or to any prospective
employer or partner.
12. Telemonde will continue to provide Donofrio with any rights of
indemnification he may currently have as an Officer of Telemonde under
Telemonde's Certificate of Incorporation, by-laws and/or General
Corporation Law of the State of Delaware, with respect to any claim
brought against Donofrio by a third-party concerning his conduct while
acting in his capacity as an Officer of Telemonde. Donofrio agrees to
make himself available, at reasonable times and upon reasonable notice
from Telemonde and its counsel, for purposes of providing factual
information and/or testimony in connection with any investigation or
any action, suit, complaint, claim, grievance, charge or proceeding of
any kind relating to Telemonde or any of the Telemonde Entities.
Donofrio agrees that if he is served with a subpoena by Telemonde
compelling his testimony, he will comply with, and will not contest the
validity or enforceability of, the subpoena, and will meet with counsel
representing Telemonde in advance of such testimony. Donofrio agrees
that no subpoena will be necessary for any other meetings, interviews,
conversations or requests for written statements requested by Telemonde
in accordance with this paragraph "12", if, as and when reasonably
required by Telemonde. Donofrio agrees to cooperate with Telemonde
during any such interviews or testimony by truthfully answering each
question posed to him to the best of his knowledge and, if requested by
Telemonde, by signing a statement or statements reflecting such
information. Telemonde agrees to reimburse Donofrio for the reasonable
cost of his travel and subsistence incurred at such interview,
deposition, trial, hearing or proceeding, and, where the assistance of
counsel for Donofrio is reasonably required, Telemonde will reimburse
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Donofrio for reasonable attorney's fees actually incurred by Donofrio
in connection with that interview or testimony.
13. This agreement is binding upon, and shall inure to the benefit of, the
parties and their respective heirs, distributees, executors,
administrators, personal representatives, successors and assigns.
14. In the event Donofrio is deceased or legally incompetent, the word
"Donofrio" means his estate (including his heirs, distributees,
executors, administrators, personal representatives, successors and
assigns) or legal representative, as the case may be.
15. This Agreement and the Exhibit hereto constitute the complete
understanding between the parties, and may not be changed orally and
supersede any and all prior proposals, agreements, understandings,
written or oral, or course of conduct, between the parties. Donofrio
acknowledges that neither Telemonde nor any representative of Telemonde
has made any representations or promise to him other than as set forth
in this Agreement.
16. This Agreement and the Exhibit hereto may be executed simultaneously in
several parts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
17. This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York. Should any
provision of this Agreement require interpretation or construction, it
is agreed by the parties that the court (or other entity) interpreting
or construing this Agreement (or the Exhibit hereto) shall not apply a
presumption that the provisions hereof shall be more strictly construed
against one party by reason of the rule of construction that a document
is to be construed more strictly against the party who prepared the
Agreement (or the Exhibit hereto), it being agreed that all parties
have participated in the preparation of all provisions of this
Agreement (and the Exhibit hereto).
18. If, at any time after the date of the execution of this Agreement, any
provision of this Agreement (or the Exhibit hereto) shall be held by
any court or agency of competent jurisdiction, in an action brought by
Donofrio or on his behalf, to be illegal, void or unenforceable, such
provision shall be of no force and effect. However, the illegality or
unenforceability of such provision shall have no effect upon, and shall
not impair the unenforceability of, any other provision of this
Agreement (or the Exhibit hereto).
19. In the event any party brings an action for enforcement of this
Agreement or damages, the prevailing party in such action shall be
entitled to his/its reasonable costs and expenses, including attorneys'
fees, incurred in connection therein.
20. Any notice required hereunder shall be deemed sufficiently given if in
writing and addressed as follows (or at such other address as each
party may subsequently designate):
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To Telemonde, Inc.:
Telemonde, Inc.
40 Portman Square, 4th Floor
London W1H 9FH England
+44 20 7486 4900
Attention: Kevin Maxwell
Chairman
To Paul E. Donofrio:
12 Castle Court
Nesconset, New York 11767
(631) 366-3795
With a copy to:
Thomas L. Costa, Esq.
Law Offices of Thomas L. Costa, LLP
South Wing, Suite 3S03
One Huntington Quadrangle
Melville, New York 11747
(631) 752-0303
21. Except as expressly stated herein, the parties agree that The Executive
Services Agreement shall be deemed terminated and of no further force
and effect, upon the execution of this Agreement, and that this
Agreement supercedes the provisions of The Executive Services Agreement
in all respects, and further that except as expressly set forth herein
the parties have no rights, duties or obligations arising from The
Executive Services Agreement. Provided, however, that the provisions of
paragraph "4" of The Executive Services Agreement ("Competition:
Confidential Information") shall survive the termination of The
Executive Services Agreement.
22. The parties agree that the United States District Court of the Eastern
District of New York, or the Supreme Court of the State of New York,
County of Suffolk, shall have jurisdiction over all controversy that
may arise under or in relation to this Agreement and the parties hereto
waive any other venue to which they might be entitled by virtue of
domicile, habitual residence, or otherwise.
23. Telemonde and the party executing this Agreement on behalf of Telemonde
represent that Telemonde has the right, power, legal capacity, and
authority to enter into and perform their obligations under this
Agreement; no approvals or consents of any third parties are necessary
in order to consummate the transactions contemplated thereby, and the
Board of Directors of Telemonde has expressly approved this Agreement.
Further, that this Agreement constitutes a valid and binding
obligation, enforceable against Telemonde in accordance with its terms.
24. Donofrio represents that he has the right, power, legal capacity, and
authority to enter into and perform his obligations under this
Agreement; no approvals or consents of any third parties are necessary
in order to consummate the transactions contemplated hereby; and that
this Agreement constitutes a valid and binding obligation, enforceable
against Donofrio in accordance with its terms.
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25. The parties agree to execute such other documents and perform such
other acts as may be necessary for the implementation and consummation
of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed as of the day and year first above written.
TELEMONDE, INC.
By: /s/ Kevin Maxwell By: /s/ Paul E. Donofrio
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Kevin Maxwell Paul E. Donofrio
Chairman
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EXHIBIT A
BOARD MEMBER SERVICES AGREEMENT
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BOARD MEMBER SERVICES AGREEMENT made as of the 31st day of October, 2000 by and
between Telemonde, Inc. ("Telemonde") and Paul E. Donofrio ("Donofrio").
Reference is made to that certain Termination of Executive Services Agreement
dated the 31st day of October 2000, by and between Telemonde and Donofrio.
WHEREAS, Donofrio terminated his employment with Telemonde effective October 31,
2000 ("Termination Date");
NOW, THEREFORE, the parties hereto agree as follows:
1. Effective November 1, 2000, Donofrio will remain a member of Telemonde's
Board of Directors until the Annual Meeting of Telemonde Stockholders in
Calendar Year 2003, unless Donofrio resigns or is removed from the Board for
cause, in accordance with Telemonde's by-laws, charter, or by operation of
law.
2. Effective November 16, 2000, so long as Donofrio remains a member of the
Board, Donofrio will receive: (a) a non-executive director fee of $100,000
per year (which is in accordance with Telemonde's non-executive director pay
package) to be disbursed in monthly allotments of $8,333.33 and is to be
paid by each calendar month end beginning in November 2000; (b) $250,000 of
Rule 144 Restricted Shares of Telemonde common stock, $.001 par value per
share, to be issued on November 16, 2001 and $250,000 of Rule 144 restricted
shares of Telemonde common stock, $.001 par value per share, to be issued on
November 16, 2002 (valued as of November 16, 2001, and November 16, 2002,
respectively); and (c) reimbursement of reasonable expenses incurred by
Donofrio in the performance of his duties as a Director.
3. Effective November 1, 2000, Donofrio will continue to assist Telemonde's
representatives on an occasional "as needed" basis in: (a) the preparation
of Telemonde's third quarter 2000 10-Q; and (b) the preparation of proxy
documentation regarding a proposed increase in Telemonde's share capital.
Telemonde will make every effort to recruit and hire a new Chief Financial
Officer as soon as possible. If required, Donofrio will assist the new Chief
Financial Officer in the preparation of Telemonde's fiscal year 2000 10-K.
Other than the above, no other services by Donofrio shall be required under
this Board Member Services Agreement, other than those advisory services
incidental to his function as a member of the Board of Directors of
Telemonde.
TELEMONDE, INC.
By: /s/ Kevin Maxwell By: /s/ Paul E. Donofrio
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Kevin Maxwell Paul E. Donofrio
Chairman
