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EMPLOYMENT AGREEMENT
By and Between
CARIBINER INTERNATIONAL, INC.
and
DIGBY DAVIES
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As of April 5, 2000
TABLE OF CONTENTS
Page
1. EMPLOYMENT..........................................................1
2. DUTIES AND RESPONSIBILITIES OF EMPLOYEE.............................1
3. EXCLUSIVITY OF SERVICE..............................................2
4. COMPENSATION; BONUS.................................................2
5. BENEFITS............................................................2
6. TERM OF EMPLOYMENT..................................................3
7. CONFIDENTIALITY; INVENTIONS; PRODUCT DEVELOPMENT, ETC...............4
8. NON-COMPETITION; NON-SOLICITATION...................................5
9. TERMINATION.........................................................6
(a) Cause......................................................6
(b) Incapacity.................................................6
(c) Death......................................................6
(d) Termination Without Cause; Good Reason.....................7
10. VIOLATION OF OTHER AGREEMENTS.......................................7
11. SPECIFIC PERFORMANCE; DAMAGES.......................................8
12. NOTICES.............................................................8
13. WAIVERS.............................................................9
14. PRESERVATION OF INTENT..............................................9
15. ENTIRE AGREEMENT....................................................9
16. INUREMENT; ASSIGNMENT...............................................9
17. AMENDMENT...........................................................9
18. HEADINGS............................................................9
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19. COUNTERPARTS.......................................................10
20. GOVERNING LAW......................................................10
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EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement") dated as of April 5, 2000 by
and between CARIBINER AUDIO VISUAL SERVICES, INC., a Delaware corporation having
an office at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Employer"), and
DIGBY DAVIES ("Employee").
W I T N E S S E T H:
WHEREAS, Employer desires to engage Employee as an employee and
Employee desires to provide his services to Employer in connection with
Employer's business; and
WHEREAS, both parties desire to clarify and specify the rights and
obligations which each have with respect to the other in connection with
Employee's employment.
NOW, THEREFORE, in consideration of the agreements and covenants herein
set forth, the parties hereby agree as follows:
1. EMPLOYMENT
Employer hereby employs Employee as its Chief Operating Officer of
Employer's Caribiner Audio Visual Services, Inc. subsidiary ("CAVS"), and
Employee hereby accepts such employment and agrees to render his services as an
employee of CAVS, for the term of this Agreement (as set forth in Section 6
hereof), all subject to and on the terms and conditions herein set forth.
2. DUTIES AND RESPONSIBILITIES OF EMPLOYEE
Employee shall be employed as the Chief Operating Officer of CAVS,
subject to the other provisions of this Section 2. Employee's duties shall be
commensurate with those of a Chief Operating Officer of a company engaged in the
business engaged in by CAVS. In the performance of his duties, Employee shall
report to Employer's Chief Executive Officer. Employee shall use his best
efforts to maintain and enhance the business and reputation of CAVS. Employee's
duties and responsibilities shall be designated to Employee by Employer's Chief
Executive Officer and by the Board of Directors of Employer (the "Board"). Upon
Employer's request, Employee shall also perform similar services in an identical
capacity for (and, if requested, shall hold directorships with) any subsidiary
or division of Employer (or a subsidiary thereof) designated by the Board.
Employee shall be available to travel as the reasonable needs of Employer shall
require. Employee shall initially be based in CAVS's offices located in New
York, New York (or the New York City metropolitan area, which for purposes
hereof shall mean within a fifty (50) mile radius of CAVS's current offices) and
shall thereafter be based in Employer's offices to be located in Southern
California.
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3. EXCLUSIVITY OF SERVICE
Employee agrees to devote all of his business time, efforts and
attention to the business and affairs of CAVS on an exclusive basis, and not to
engage in any other business activities for any person or entity, other than
personal investment activities and, subject to Employer's prior written
approval, directorships, provided that such activities do not materially affect
the performance of Employee's duties hereunder.
4. COMPENSATION; BONUS
(a) In consideration for his services to be performed under this
Agreement and as compensation therefor, Employee shall receive, in addition to
all other benefits provided in this Agreement, a base salary (the "Base Salary")
at the annual rate of four hundred thousand ($400,000) Dollars. All payments of
Base Salary shall be payable monthly in arrears.
(b) In addition to the Base Salary, Employee shall be entitled to a
bonus (the "Bonus") during the first eighteen (18) months of the Initial Term
(as defined in Section 6 below) at a rate of $200,000 per annum (the "Guaranteed
Bonus"). During the first eighteen (18) months of the Initial Term, in the
aggregate, the Guaranteed Bonus shall equal $300,000 payable monthly in arrears
(commencing May 5, 2000). Each monthly payment shall equal $16,666.66.
Subsequent to the first eighteen (18) months of the Initial Term, the Bonus
shall be paid pursuant to an executive bonus plan to be mutually agreed upon
between Employer and Employee.
(c) Employee's Base Salary and Bonus shall be reviewed annually by the
Board and increased in the Board's discretion.
5. BENEFITS
In addition to the Base Salary and Bonus provided for in Section 4
hereof, Employee shall be entitled to the following benefits during and in
respect of the Term (as defined below):
(a) Employer shall provide Employee and his immediate family with the
hospitalization, medical and dental insurance coverage and other benefits
(including long term disability and life insurance) on the same basis as
provided to the majority of the other senior executive employees of Employer, in
accordance with Employer's practices. Employee shall be entitled to participate
in any plan of Employer relating to vacation, sick leave, stock options, stock
purchases, stock grants, pension, thrift, profit sharing, insurance, medical
coverage, education or other retirement or employee benefits that Employer has
adopted or may adopt for the benefit of its executive officers, officers and/or
employees.
(b) Employee shall be entitled to twenty-five (25) working days paid
vacation to be taken by Employee at times mutually and reasonably agreed upon by
Employer and Employee in
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addition to all other holidays established as part of Employer's standard
practices. No payment shall be made to Employee for unused vacation days nor may
such days be carried over to future years without Employer's consent.
(c) Employee shall be entitled to reimbursement for all reasonable
travel, entertainment and other reasonable expenses incurred in connection with
Employer's business, provided that such expenses are adequately documented and
vouchered in accordance with Employer's policies.
(d) Employee shall be entitled to an automobile allowance in the amount
of $1,200 per month, payable in equal installments during each payroll period,
to defray all costs incurred by Employee in connection with Employee's use of
his automobile in connection with the business of Employer (except for those
which Employee is entitled to reimbursement pursuant to Section 5(c) hereof).
(e) Employee shall be entitled to reimbursement for the reasonable
expenses incurred by Employee in connection with moving his household goods to
the United States from the United Kingdom and back to the United Kingdom
following the termination of the term of this Agreement other than pursuant to
Section 9(a) hereof (the "Moving Expenses").
(f) Employee shall also be entitled to reimbursement for reasonable
legal and accounting fees incurred by Employee in connection with U.S.
Immigration and taxation matters relating to his relocation to the United
States, and advice in connection with this Agreement.
6. TERM OF EMPLOYMENT
The initial term (the "Initial Term") of employment shall commence on
April 5, 2000 and shall terminate two (2) years thereafter, unless terminated
prior thereto in accordance with Section 9 hereof. Subsequent to the Initial
Term, the term of this Agreement shall be extended for successive periods of one
(1) year (each, a "Renewal Term") unless, at least one (1) year prior to the end
of the Initial Term or the then current Renewal Term, as the case may be, either
party has given the other party written notice of its election to terminate this
Agreement as of the end of the Initial Term or the then current Renewal Term, as
the case may be. For purposes of this Agreement, "Term" shall mean the Initial
Term plus any Renewal Terms.
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7. CONFIDENTIALITY; INVENTIONS; PRODUCT DEVELOPMENT, ETC.
(a) Employee agrees and covenants that, at any time during employment
by Employer (which, for purposes of Sections 7 and 8 hereof shall include
Employer's subsidiaries and affiliates) or thereafter, he will not (without
first obtaining the written permission of Employer) (i) at any time during
employment by Employer and thereafter divulge to any person or entity, nor use
(either himself or in connection with any business) any "Confidential
Information" (as hereinafter defined in Section 7(c) hereof) and (ii) at any
time during employment by Employer and thereafter, divulge to any person or
entity, nor use (either himself or in connection with any business) any "Trade
Secrets" (as hereinafter defined in Section 7(c) hereof) to which he may have
had access or which had been revealed to him during the course of his employment
unless such disclosure is pursuant to a court order, disclosure in litigation
involving the Employer or in any reports or applications required by law to be
filed with any governmental agency.
(b) Employee hereby grants to Employer or its nominee all rights of
every kind whatsoever, exclusively and perpetually, in and to all services
performed, products created and product ideas conceived by Employee for Employer
or its nominee, and hereby agrees, upon Employer's request therefor, to assign
and transfer to Employer or its nominee, any and all inventions, Trade Secrets,
product ideas, improvements, processes, Confidential Information and "know how"
relating to the business or products of Employer or any subsidiary or division
thereof, including any thereof which Employee may learn, possess or acquire
during Employee's employment by Employer, and agrees that all such things and
such knowledge are, and will be, the sole and exclusive property of Employer or
its nominee, and are known or held by Employee only for the benefit of Employer
or its nominee.
(c) As used in this Agreement, the term "Confidential Information"
shall mean and include all information and data in respect of Employer's
operations, financial condition, products, customers and business (including,
without limitation, artwork, photographs, specifications, facsimiles, samples,
business, marketing or promotional plans, creative written material and
information relating to characters, concepts, names, trademarks and copyrights)
which may be communicated to Employee or to which Employee may have access in
the course of Employee's employment by Employer. Notwithstanding the foregoing,
the term "Confidential Information" shall not include information which:
(i) is, at the time of the disclosure, a part of the public domain
through no act or omission by Employee;
(ii) was otherwise in Employee's lawful possession prior to the
disclosure; or
(iii) is hereafter lawfully disclosed to Employee by a third party
who or which did not acquire the information under an
obligation of confidentiality to or through Employer.
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As used in this Agreement, the term "Trade Secrets" shall mean and
include information, without regard to form, including, but not limited to,
technical or non-technical data, a formula, a pattern, a compilation, a program,
a device, a method, a technique, a drawing, a process, financial data, financial
plans, product plans, or a list of actual or potential customers or suppliers
which is not commonly known by or available to the public and which information
(i) derives economic value, actual or potential, from not being known to, and
not being readily ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use; and (ii) is the subject of efforts
that are reasonable under the circumstances to maintain its secrecy.
Any combination of known information shall be within any of the
foregoing exclusions only if the combination as such is within such exclusions.
Nothing in this Section 7 shall limit any protection, definition or
remedy provided to Employer under any law, statute or legal principle relating
to Confidential Information or Trade Secrets.
(d) Employee agrees that at the time of leaving the employ of Employer
he will deliver to Employer and not keep or deliver to anyone else any and all
notes, notebooks, drawings, memoranda, documents, and in general, any and all
material relating to the business of Employer (except Employee's personal files
and records) or relating to any employee, officer, director, agent or
representative of Employer.
8. NON-COMPETITION; NON-SOLICITATION
(a) Employee hereby agrees and covenants that commencing as of the date
hereof and for a period of one (1) year following the termination of his
employment with Employer (the "Limited Period") he will not directly or
indirectly engage in or become interested (whether as an owner, principal,
agent, stockholder, member, partner, trustee, venturer, lender or other
investor, director, officer, employee, consultant or through the agency of any
corporation, limited liability company, partnership, association or agent or
otherwise) in any business or enterprise that shall, at the time, be in whole or
in substantial part competitive with any material part of the business conducted
by Employer during the period of Employee's employment with Employer (except
that ownership of not more than 1% of the outstanding securities of any class of
any entity that are listed on a national securities exchange or traded in the
over-the-counter market shall not be considered a breach of this Section 8(a)).
(b) Employee agrees and covenants that for the Limited Period he will
not (without first obtaining the written permission of Employer) directly or
indirectly participate in the solicitation of any business of any type conducted
by Employer during the period of Employee's employment with Employer from any
person or entity which was a client or customer of Employer during the period of
Employee's employment with Employer, or was a prospective customer of Employer
from which Employee (or employees under Employee's supervision)
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solicited business or for which a proposal for submission was prepared during
the period of Employee's employment with Employer.
(c) Employee agrees and covenants that for the Limited Period he will
not (without first obtaining the written permission of Employer) directly or
indirectly, recruit for employment, or induce or seek to cause such person to
terminate his or his employment with Employer, any person who then is an
employee of Employer.
9. TERMINATION
(a) Cause. Notwithstanding the terms of this Agreement, Employer may
discharge Employee and terminate this Agreement in the event that (i) Employee
shall continually fail substantially to perform his duties hereunder with
reasonable diligence, other than by reason of incapacity, or shall violate any
material covenant of his herein contained, (ii) Employee shall engage in an act
of fraud, theft or embezzlement in connection with his employment hereunder,
(iii) Employee shall engage in a material act or omission involving wilful
misconduct or gross negligence in the performance of Employee's duties, (iv)
Employee shall engage in a material act of dishonesty, (v) Employee shall
unreasonably refuse to carry out the lawful order of Employer commensurate with
Employee's duties to be performed hereunder or (vi) Employee shall be convicted
of a felony involving moral turpitude, (which shall include any felony relating
to drugs) or shall plead nolo contendere (or make an equivalent plea) in respect
of, any governmental indictment, complaint or other formal allegation.
Notwithstanding the foregoing to the contrary, prior to discharging Employee
pursuant to clauses (i) or (v) of the immediately preceding sentence, Employer
shall give Employee ten (10) days' prior written notice of any breach or failure
and a reasonable opportunity to cure any such breach or failure, or cease
violating any covenant contained herein, to the extent curable or ceasable;
provided, however, that no notice shall be required to be given in the event
such breach, failure or violation is not curable or ceasable. In the event
Employee is discharged pursuant to this Section 9, except as otherwise set forth
herein, employee's Base Salary and Bonus under Section 4 hereof and all benefits
under Section 5 hereof shall terminate immediately upon such discharge (subject
to applicable law such as COBRA), and Employer shall have no further obligation
to Employee except the payment to and reimbursement to Employee for any monies
due to Employee which right to payment or reimbursement accrued prior to such
discharge.
(b) Incapacity. Should Employee, in the reasonable judgment of a
physician chosen by the Board, become incapacitated to the extent that he is
unable to perform his material duties pursuant to this Agreement for a period of
five (5) consecutive months by reason of illness, disability, or other
incapacity, Employer may terminate this Agreement upon one (1) month's notice
after said five (5) month period.
(c) Death. This Agreement shall terminate immediately upon the death of
Employee, in which case Employee's legal representatives shall be entitled to
receive promptly a payment equal to four (4) months Base Salary.
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(d) Termination Without Cause; Good Reason. If Employee is discharged
and this Agreement is terminated without Cause (Cause being defined as a reason
for termination as set forth in Section 9(a) above) or by reason other than as
set forth in Sections 9(b) or 9(c) hereof, or if Employee resigns for Good
Reason (as hereinafter defined) Employer shall pay to Employee (i) for the
remainder of the Initial Term or the remainder of the then current Renewal Term,
as the case may be, the Base Salary provided for in Section 4 hereof as such
sums become due (or, at Employer's election, in a lump sum giving effect to the
present value of such payments); and (ii) the Bonus payable in equal monthly
installments over the remainder of such Renewal Term or Initial Term, as the
case may be (or, at Employer's election, in a lump sum giving effect to the
present value of such payments utilizing a discount factor of 5%). For purposes
of this Agreement, "Good Reason" shall mean (i) a relocation of Employee,
without his prior written consent, outside of the New York City metropolitan
area (which shall mean within a fifty (50) mile radius of such current offices)
or, at such time when Employer relocates to Southern California, a relocation of
Employee more than fifty (50) miles outside of Employer's offices in Southern
California, or (ii) a failure to maintain Employee as Chief Operating Officer,
or (iii) a material diminution by Employer of Employee's responsibilities, which
change would cause Employee's position with Employer to become one of
significantly less responsibility or scope from that contemplated by Section 2
hereof, or (iv) a wilful failure in bad faith to pay the Base Salary or Bonus to
Employee when due or another material breach of this Agreement by Employer that
has a material adverse effect on Employee, or (v) a Change of Control of
Employer (as defined below) during the Initial Term. For purposes of this
Agreement, a "Change of Control" shall mean have the meaning given to such term
in Caribiner International Inc.'s 1996 Stock Option Plan, as amended.
10. VIOLATION OF OTHER AGREEMENTS
Employee represents and warrants to Employer that he is legally able to
enter into this Agreement and accept employment with Employer; that Employee is
not prohibited by the terms of any agreement, understanding or policy from
entering into this Agreement; and the terms hereof will not and do not violate
or contravene the terms of any agreement, understanding or policy to which
Employee is or may be a party, or by which Employee may be bound. Employee
agrees that, as it is a material inducement to Employer that Employee make the
foregoing representations and warranties and that they be true in all respects,
Employee shall forever indemnify and hold Employer harmless from and against all
liability, costs or expenses (including attorney's fees and disbursements) on
account of the foregoing representations being untrue.
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11. SPECIFIC PERFORMANCE; DAMAGES
In the event of a breach or threatened breach of the provisions of
Sections 7 or 8 hereof, Employee agrees that the injury which would be suffered
by Employer would be of a character which could not be fully compensated for
solely by a recovery of monetary damages. Accordingly, Employee agrees that in
the event of a breach or threatened breach of Section 7 or 8 hereof, in addition
to and not in lieu of any damages sustained by Employer and any other remedies
which Employer may pursue hereunder or under any applicable law, Employer shall
have the right to equitable relief, including issuance of a temporary or
permanent injunction, by any court of competent jurisdiction against the
commission or continuance of any such breach or threatened breach, without the
necessity of proving any actual damages or posting of any bond or other surety
therefor. In addition to, and not in limitation of the foregoing, Employee
understands and confirms that, in the event of a breach or threatened breach of
Section 7 or 8 hereof, Employee may be held financially liable to Employer for
any loss suffered by Employer as a result.
12. NOTICES
Any and all notices, demands or requests required or permitted to be
given under this Agreement shall be given in writing and sent, by registered or
certified U.S. mail, return receipt requested, by hand, or by overnight courier,
addressed to the parties hereto at their addresses set forth above or such other
addresses as they may from time-to-time designate by written notice or, in the
case of Employee, which Employer maintains as Employee's address, given in
accordance with the terms of this Section, together with copies thereof as
follows:
In the case of Employer, with a copy to:
Xxxxxxxx Xxxx & Brandeis, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Notice given as provided in this Section shall be deemed effective: (i) on the
date hand delivered, (ii) on the first business day following the sending
thereof by overnight courier, and (iii) on the seventh calendar day (or, if it
is not a business day, then the next succeeding business day thereafter) after
the depositing thereof into the exclusive custody of the U.S. Postal Service.
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13. WAIVERS
No waiver by any party of any default with respect to any provision,
condition or requirement hereof shall be deemed to be a waiver of any other
provision, condition or requirement hereof; nor shall any delay or omission of
any party to exercise any right hereunder in any manner impair the exercise of
any such right accruing to it thereafter.
14. PRESERVATION OF INTENT
Should any provision of this Agreement be determined by a court having
jurisdiction in the premises to be illegal or in conflict with any laws of any
state or jurisdiction or otherwise unenforceable, Employer and Employee agree
that such provision shall be modified to the extent legally possible so that the
intent of this Agreement may be legally carried out.
15. ENTIRE AGREEMENT
This Agreement sets forth the entire and only agreement or
understanding between the parties relating to the subject matter hereof and
supersedes and cancels all previous agreements, negotiations, letters of intent,
correspondence, commitments and representations in respect thereof among them,
and no party shall be bound by any conditions, definitions, warranties or
representations with respect to the subject matter of this Agreement except as
provided in this Agreement.
16. INUREMENT; ASSIGNMENT
The rights and obligations of Employer under this Agreement shall inure
to the benefit of and shall be binding upon any successor of Employer or to the
business of Employer, subject to the provisions hereof. Employer may assign this
Agreement to any person, firm or corporation controlling, controlled by, or
under common control with Employer. Neither this Agreement nor any rights or
obligations of Employee hereunder shall be transferable or assignable by
Employee.
17. AMENDMENT
This Agreement may not be amended in any respect except by an
instrument in writing signed by the parties hereto.
18. HEADINGS
The headings in this Agreement are solely for convenience of reference
and shall be given no effect in the construction or interpretation of this
Agreement.
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19. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which when taken together shall
constitute one and the same instrument.
20. GOVERNING LAW
This Agreement shall be governed by, construed and enforced in
accordance with the internal laws of the State of California, without giving
reference to principles of conflict of laws.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
EMPLOYEE:
/s/ Digby Davies
-------------------------------
Digby Davies
EMPLOYER:
CARIBINER INTERNATIONAL, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxxxxxxx X. Xxxxxxxx
Title: Chairman of the Board
and Chief Executive
Officer
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