Exhibit 10.1

 

AMENDMENT TO

EXECUTIVE EMPLOYMENT AGREEMENT

THIS AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT (the “ Amendment ”) is made this 9 ^th day of November, 2017 by and between magicJack VocalTec Ltd. (the “ Company ”) and Don Carlos Bell III (the “ Executive ” and, together with the Company, the “ Parties ”).

 

WHEREAS, the Parties previously entered into that certain Executive Employment Agreement, dated May 8, 2017 (the “ Agreement ”).

WHEREAS, the Company is in the process of negotiating an Agreement and Plan of Merger by and among B. Riley Financial, Inc., B. R. Acquisition Ltd. (the “ Merger Sub ”), and Company, dated November 9, 2017, pursuant to which the Parties contemplate that the Merger Sub will be merged with and into the Company (the “ Merger Agreement ”).  The transactions contemplated by the Merger Agreement would, if consummated, constitute a “Change of Control” entitling the Executive to payment of the “Special Transaction Bonus,” as such terms are defined by, and pursuant to the terms of, the Agreement, provided the transactions are consummated prior to May 8, 2018 (the “ Transaction Deadline ”) and further provided that the Executive continues to be employed by the Company at such time.

WHEREAS, given the complexities of the contemplated transactions, the Parties agree that it is reasonable to modify the Transaction Deadline in a manner that will allow the Executive the opportunity to earn the Special Transaction Bonus either (i) if any Change of Control is consummated by May 8, 2018 or (ii) upon the occurrence of the Closing (as such term is defined in the Merger Agreement) at any time.

WHEREAS, the Parties are concurrently entering into that certain Amendment to magicJack VocalTec Ltd. 2013 Stock Incentive Plan Restricted Stock Agreement (the “ Restricted Stock Award Amendment ”), and hereby agree that this Amendment’s effectiveness shall be conditioned upon the effectiveness of the Restricted Stock Award Amendment.

WHEREAS , the Parties further agree and acknowledge that the Amendment is conditioned upon, and subject to the approval of, the shareholders of the Company.

NOW, THEREFORE, in consideration of the foregoing, the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto, intending to be legally bound, hereby agree to amend the Agreement, subject to the approval of the Company’s shareholders, effective as of the date first set forth above, by deleting Section 4(D) of the Agreement in its entirety and by substituting therefor the following:

“D.	SPECIAL TRANSACTION BONUS .

(i)

If a Change of Control occurs by the Transaction Deadline and Executive is employed by the Company on such Change of Control, then Executive shall be paid within five (5) days after the Change of Control a bonus (the “ Special Transaction Bonus ”) of up to $2,500,000, which will be calculated pursuant to the criteria set forth in Attachment C to this Agreement.  The Special Transaction Bonus is in addition to any Annual Bonus Executive may earn pursuant to Section 4(B) of this Agreement, or any Change of Control Termination Payment or any Termination Payment Executive is entitled to be paid pursuant to Section 7 of this Agreement.

(ii)

For purposes of this Section 4(D), the following terms shall have the meanings ascribed to them below:

“ Transaction Deadline ” means, (i) if the Merger Agreement is terminated pursuant to Article 7 thereof, whether before, on, or after May 8, 2018, the date of May 8, 2018, and, (ii) if the Closing takes place in accordance with the terms of the Merger Agreement, the date on which the Closing occurs.

“ Merger Agreement ” means the Agreement and Plan of Merger by and among B. Riley Financial, Inc., B. R. Acquisition Ltd., and Company, dated November 9, 2017.”

Except as specifically amended hereby, the Agreement will remain in full force and effect as prior to the adoption of this Amendment.

In the event the shareholders of the Company fail to approve the adoption of this Amendment or the Restricted Stock Award Amendment before May 8, 2018, the adoption of this Amendment by the Parties shall be rendered null and void.

 

[Signatures on Following Page]

 

IN WITNESS WHEREOF, the Parties hereto have executed and delivered this Amendment under seal as of the date first set forth above.

 

	MAGICJACK VOCALTEC LTD.
	By:	/s/ Izhak Gross
		Name: Izhak Gross
		Title: Chairman
	EXECUTIVE
	/s/ Don Carlos Bell III
	Name: Don Carlos Bell III

 

 

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	MAGICJACK VOCALTEC LTD.
	By:	/s/ Don Carlos Bell III
		Name: Don Carlos Bell III
		Title: Chief Executive Officer
	EXECUTIVE
	/s/ Thomas E.D. Fuller
	Name: Thomas E.D. Fuller

 

[Signature Page – Amendment to Fuller Executive Employment Agreement]

 

Exhibit 10.3

 

AMENDMENT TO

MAGICJACK VOCALTEC LTD

2013 STOCK INCENTIVE PLAN

RESTRICTED STOCK AGREEMENT

THIS AMENDMENT TO MAGICJACK VOCALTEC LTD 2013 STOCK INCENTIVE PLAN RESTRICTED STOCK AGREEMENT (the “ Amendment ”) is made this 9 ^th day of November, 2017 by and between magicJack VocalTec Ltd. (the “ Company ”) and Don Carlos Bell III (the “ Executive ” and, together with the Company, the “ Parties ”).

 

WHEREAS, the Parties previously entered into that certain magicJack VocalTec Ltd 2013 Stock Incentive Plan Restricted Stock Agreement, dated May 8, 2017 (the “ Agreement ”).

WHEREAS, the Company is in the process of negotiating an Agreement and Plan of Merger by and among B. Riley Financial, Inc., B. R. Acquisition Ltd. (the “ Merger Sub ”), and Company, dated November 9, 2017, pursuant to which the Parties contemplate that the Merger Sub will be merged with and into the Company (the “ Merger Agreement ”).  The transactions contemplated by the Merger Agreement would, if consummated, constitute a “Change of Control” entitling the Executive to payment of the “Special Transaction Bonus,” as such terms are defined by, and pursuant to the terms of, that certain Executive Employment Agreement between the Parties dated May 8, 2017, (as amended from time to time, the “ Employment Agreement ”), provided the transactions are consummated prior to May 8, 2018 (the “ Transaction Deadline ”) and further provided that the Executive continues to be employed by the Company at such time.

WHEREAS, given the complexities of the contemplated transactions, the Parties agree that it is reasonable to modify the Transaction Deadline in a manner that will allow the Executive the opportunity to earn the Special Transaction Bonus either (i) if any Change of Control is consummated by May 8, 2018 or (ii) upon the occurrence of the Closing (as such term is defined in the Merger Agreement) at any time.

WHEREAS, the Parties further agree that the modification of the Transaction Deadline would warrant a corresponding modification to the vesting provisions of the Agreement.

WHEREAS, the Parties therefore agree and acknowledge that the Amendment is conditioned upon, and subject to the approval of, the shareholders of the Company of the contemplated amendments to the Employment Agreement and the Agreement.

NOW, THEREFORE, in consideration of the foregoing, the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto, intending to be legally bound, hereby agree to amend the Agreement, subject to the approval of the Company’s shareholders, effective as of the date first set forth above, by deleting Section 4 of the Agreement in its entirety and by substituting therefor the following:

“4.

Vesting .  The Restricted Shares shall vest as follows:

(a)

no part of the Restricted Shares shall be eligible to become vested until the later of (i) May 8, 2018 or (ii) a Terminated Transaction Event;

(b)

on the later of (i) May 8, 2018 or (ii) a Terminated Transaction Event, thirty-three and one-third percent (33 1 / 3 %)   of the number of Restricted Shares granted hereby shall become vested;

(c)

on March 9, 2019, an additional thirty-three and one-third percent (33 1 / 3 %) of the number of Restricted Shares granted hereby shall become vested; and

(d)

on March 9, 2020, all Restricted Shares that have not previously become vested shall become vested.

If the Restricted Shares would become vested as to a fractional share, the number of Restricted Shares becoming vested shall be rounded down to the nearest whole share.

Notwithstanding the foregoing, if, after the later of May 8, 2018 or a Terminated Transaction Event:  (1) Participant’s Service ends as a result of Participant’s death or Disability, then the above vesting schedule shall be adjusted such that the number of Restricted Shares vested immediately following such termination, inclusive of all previously vested Restricted Shares, shall be equal to the total number of Restricted Shares granted hereunder multiplied by (w) the number of days elapsed between Date of Grant and the termination date, divided by (x) one thousand ninety-six (1,096) days; or (2) Participant’s Service is terminated by the Company without Cause or by Participant for Good Reason, then the above vesting schedule shall be adjusted such that the number of Restricted Shares vested immediately following such termination, inclusive of all previously vested Restricted Shares, shall be equal to the total number of Restricted Shares granted hereunder multiplied by (y) the number of days elapsed between Date of Grant and the termination date plus ninety (90 days, divided by (z) one thousand ninety-six (1,096) days.  By way of example, if Participant’s Service is terminated by the Company without Cause or by the Participant for Good Reason on the date that is five hundred (500) days after the Date of Grant (and also after the Terminated Transaction Event), 53.83% (590/1096) of the Restricted Shares shall be vested, inclusive of any previously vested Restricted Shares.  In the event of a Change of Control on or after the later of May 8, 2018 or a Terminated Transaction Event, but prior to termination of the Participant’s Service and the third anniversary of the Date of Grant, the Restricted Shares shall thereupon become vested as described in Section 13.2 of the Company’s Amended and Restated 2013 Stock Incentive Plan, which terms are incorporated herein by reference.  If Participant’s Service is terminated by the Company without Cause or by the Participant for Good Reason within 180 days prior to a Change of Control occurring on or after the later of May 8, 2018 or a Terminated Transaction Event, all Restricted Shares shall become vested immediately prior to consummation of such Change of Control.  If Participant’s Service is terminated within 180 days after a Change of Control occurring on or after the later of May 8, 2018 or a Terminated Transaction Event and Participant has been granted a substantially equivalent award of the acquiror’s equity securities in substitution of any portion of the Restricted Shares (the “ Substituted Shares “), the acquirer shall be obligated to pay Participant an amount equal to the difference between the Change of Control proceeds Participant would have received had all of the Participant’s Restricted Shares been vested immediately prior to such Change of Control, and the amount of Change of Control proceeds actually received by Participant in exchange for the Participant’s vested Restricted Shares as a result of such Change of Control, provided that Participant forfeits all of the Substituted Shares issued to Participant by the acquirer.

For purposes of this Section 4, the following terms shall have the meanings ascribed to them below:

“ Terminated Transaction Event ” means any event whereby the Merger Agreement is terminated pursuant to Article 7, whether before, on, or after May 8, 2018

“ Merger Agreement ” means the Agreement and Plan of Merger by and among B. Riley Financial, Inc., B. R. Acquisition Ltd., and Company, dated November 9, 2017.

Notwithstanding any provision of this Amendment or any other agreement to the contrary, all Restricted Shares shall be forfeited immediately prior to and contingent upon the Closing (as such term is defined in the Merger Agreement).”

Except as specifically amended hereby, the Agreement will remain in full force and effect as prior to the adoption of this Amendment.

In the event the shareholders of the Company fail to approve the adoption of this Amendment before May 8, 2018, the adoption of this Amendment by the Parties shall be rendered null and void.

 

[Signatures Follow on Next Page]

 

IN WITNESS WHEREOF, the Parties hereto have executed and delivered this Amendment under seal as of the date first set forth above.

 

 

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Exhibit 10.4

 

AMENDMENT TO

MAGICJACK VOCALTEC LTD

2013 STOCK INCENTIVE PLAN

RESTRICTED STOCK AGREEMENT

THIS AMENDMENT TO MAGICJACK VOCALTEC LTD 2013 STOCK INCENTIVE PLAN RESTRICTED STOCK AGREEMENT (the “ Amendment ”) is made this 9 ^th day of November, 2017 by and between magicJack VocalTec Ltd. (the “ Company ”) and Thomas E.D. Fuller (the “ Executive ” and, together with the Company, the “ Parties ”).

 

WHEREAS, the Parties previously entered into that certain magicJack VocalTec Ltd 2013 Stock Incentive Plan Restricted Stock Agreement, dated May 8, 2017 (the “ Agreement ”).

WHEREAS, the Company is in the process of negotiating an Agreement and Plan of Merger by and among B. Riley Financial, Inc., B. R. Acquisition Ltd. (the “ Merger Sub ”), and Company, dated November 9, 2017, pursuant to which the Parties contemplate that the Merger Sub will be merged with and into the Company (the “ Merger Agreement ”).  The transactions contemplated by the Merger Agreement would, if consummated, constitute a “Change of Control” entitling the Executive to payment of the “Special Transaction Bonus,” as such terms are defined by, and pursuant to the terms of, that certain Executive Employment Agreement between the Parties dated May 8, 2017, (as amended from time to time, the “ Employment Agreement ”), provided the transactions are consummated prior to May 8, 2018 (the “ Transaction Deadline ”) and further provided that the Executive continues to be employed by the Company at such time.

WHEREAS, given the complexities of the contemplated transactions, the Parties agree that it is reasonable to modify the Transaction Deadline in a manner that will allow the Executive the opportunity to earn the Special Transaction Bonus either (i) if any Change of Control is consummated by May 8, 2018 or (ii) upon the occurrence of the Closing (as such term is defined in the Merger Agreement) at any time.

WHEREAS, the Parties further agree that the modification of the Transaction Deadline would warrant a corresponding modification to the vesting provisions of the Agreement.

NOW, THEREFORE, in consideration of the foregoing, the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto, intending to be legally bound, hereby agree to amend the Agreement, effective as of the date first set forth above, by deleting Section 4 of the Agreement in its entirety and by substituting therefor the following:

“4.

Vesting .  The Restricted Shares shall vest as follows:

(a)

no part of the Restricted Shares shall be eligible to become vested until the later of (i) May 8, 2018 or (ii) a Terminated Transaction Event;

(b)

on the later of (i) May 8, 2018 or (ii) a Terminated Transaction Event, thirty-three and one-third percent (33 1 / 3 %)   of the number of Restricted Shares granted hereby shall become vested;

(c)

on March 13, 2019, an additional thirty-three and one-third percent (33 1 / 3 %) of the number of Restricted Shares granted hereby shall become vested; and

(d)

on March 13, 2020, all Restricted Shares that have not previously become vested shall become vested.

If the Restricted Shares would become vested as to a fractional share, the number of Restricted Shares becoming vested shall be rounded down to the nearest whole share.

Notwithstanding the foregoing, if, after the later of May 8, 2018 or a Terminated Transaction Event:  (1) Participant’s Service ends as a result of Participant’s death or Disability, then the above vesting schedule shall be adjusted such that the number of Restricted Shares vested immediately following such termination, inclusive of all previously vested Restricted Shares, shall be equal to the total number of Restricted Shares granted hereunder multiplied by (w) the number of days elapsed between Date of Grant and the termination date, divided by (x) one thousand ninety-six (1,096) days; or (2) Participant’s Service is terminated by the Company without Cause or by Participant for Good Reason, then the above vesting schedule shall be adjusted such that the number of Restricted Shares vested immediately following such termination, inclusive of all previously vested Restricted Shares, shall be equal to the total number of Restricted Shares granted hereunder multiplied by (y) the number of days elapsed between Date of Grant and the termination date plus ninety (90 days, divided by (z) one thousand ninety-six (1,096) days.  By way of example, if Participant’s Service is terminated by the Company without Cause or by the Participant for Good Reason on the date that is five hundred (500) days after the Date of Grant (and also after the Terminated Transaction Event), 53.83% (590/1096) of the Restricted Shares shall be vested, inclusive of any previously vested Restricted Shares.  In the event of a Change of Control on or after the later of May 8, 2018 or a Terminated Transaction Event, but prior to termination of the Participant’s Service and the third anniversary of the Date of Grant, the Restricted Shares shall thereupon become vested as described in Section 13.2 of the Company’s Amended and Restated 2013 Stock Incentive Plan, which terms are incorporated herein by reference.  If Participant’s Service is terminated by the Company without Cause or by the Participant for Good Reason within 180 days prior to a Change of Control occurring on or after the later of May 8, 2018 or a Terminated Transaction Event, all Restricted Shares shall become vested immediately prior to consummation of such Change of Control.  If Participant’s Service is terminated within 180 days after a Change of Control occurring on or after the later of May 8, 2018 or a Terminated Transaction Event and Participant has been granted a substantially equivalent award of the acquiror’s equity securities in substitution of any portion of the Restricted Shares (the “ Substituted Shares “), the acquirer shall be obligated to pay Participant an amount equal to the difference between the Change of Control proceeds Participant would have received had all of the Participant’s Restricted Shares been vested immediately prior to such Change of Control, and the amount of Change of Control proceeds actually received by Participant in exchange for the Participant’s vested Restricted Shares as a result of such Change of Control, provided that Participant forfeits all of the Substituted Shares issued to Participant by the acquirer.

For purposes of this Section 4, the following terms shall have the meanings ascribed to them below:

“ Terminated Transaction Event ” means any event whereby the Merger Agreement is terminated pursuant to Article 7, whether before, on, or after May 8, 2018

“ Merger Agreement ” means the Agreement and Plan of Merger by and among B. Riley Financial, Inc., B. R. Acquisition Ltd., and Company, dated November 9, 2017.

Notwithstanding any provision of this Amendment or any other agreement to the contrary, all Restricted Shares shall be forfeited immediately prior to and contingent upon the Closing (as such term is defined in the Merger Agreement).”

Except as specifically amended hereby, the Agreement will remain in full force and effect as prior to the adoption of this Amendment.

 

[Signatures Follow on Next Page]

 

IN WITNESS WHEREOF, the Parties hereto have executed and delivered this Amendment under seal as of the date first set forth above.

 

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EQUITY RIGHTS CONTINGENT CANCELLATION AGREEMENT

 

THIS EQUITY RIGHTS CONTINGENT CANCELLATION AGREEMENT (the “Agreement”) is made and entered into as of this 9 ^th day of November, 2017, by and between magicJack VocalTec Ltd. (the “Company”) and Don Carlos Bell III (the “Recipient”).

 

Background

 

The Recipient was granted a nonqualified stock option representing the opportunity to purchase up to 1,883,165 of the Company’s ordinary shares pursuant to a Stock Option Agreement dated May 8, 2017 (the “Award”).  Pursuant to an Agreement and Plan of Merger by and among B. Riley Financial, Inc. (“Parent”), B. R. Acquisition Ltd. (“Merger Sub”), and Company, dated November 9, 2017, the parties contemplate that the Merger Sub will be merged with and into the Company (“Merger Agreement”).  As an inducement to the Parent to enter into the Merger Agreement, the parties to this Agreement desire to cancel the Award contingent upon, and simultaneously with, the consummation of the transactions contemplated by the Merger Agreement.

 

Agreement

 

NOW, THEREFORE, in consideration of the mutual benefits accruing to the Company and the Recipient resulting from the consummation of the transactions contemplated by the Merger Agreement, the adequacy of such consideration being hereby acknowledged by the parties, the parties hereto agree that by entering into this Agreement the Award shall be extinguished in all respects and any rights thereto and thereunder shall be deemed cancelled effective upon the consummation of the transactions contemplated by the Merger Agreement.  In the event the Merger Agreement is terminated without such transactions being consummated, this Agreement shall be rendered null and void and shall be given no effect.

 

Miscellaneous Provisions

 

This Agreement shall be construed, administered and enforced according to the laws of the State of Florida.

 

This Agreement shall be binding upon and inure to the benefit of the heirs, legal representatives, successors and permitted assigns of the parties.

 

This Agreement expresses the entire understanding and agreement of the parties with respect to the subject matter.  This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.

 

[Signature Page Follows]

 

IN WITNESS WHEREOF, the parties have executed and sealed this Agreement on the day and year first set forth above.

 

magicJack VocalTec Ltd.:

 

By: /s/ Izhak Gross		/s/ Don Carlos Bell III
Name: Izhak Gross		Don Carlos Bell III
Title: Chairman

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