MetaVisual Creations Limited Trinity House Cambridge Business Park Cowley Road, Cambridge United Kingdom CB4 OWZ
EXHIBIT
10.2
MetaVisual
Creations Limited
Trinity
House
Cambridge
Business Park
Xxxxxx
Xxxx, Xxxxxxxxx
Xxxxxx
Xxxxxxx XX0 OWZ
July
30,
2007
Xxxx
Xxxxxxx
c/o
MetaVisual Creations Limited
Trinity
House
Cambridge
Business Park
Xxxxxx
Xxxx, Xxxxxxxxx
Xxxxxx
Xxxxxxx XX0 OWZ
Dear
Xxxx:
The
following constitutes the employment agreement (the “Agreement”) between you
(the “Executive”) and MetaVisual Creations Limited (the “Company”), a Company
formed under the laws of the United Kingdom and Wales. This letter also
formalizes your promotion to and sets forth the terms of your employment as
Chief Technology Officer and Senior Vice President - Research and Development
of
the Company’s parent, On2 Technologies, Inc. (“On2”), a Delaware corporation.
The title of your position at On2 will be SVP/CTO - On2 Technologies,
Inc.
1.
EMPLOYMENT; ACCEPTANCE OF EMPLOYMENT. The Company hereby employs the Executive
during the Term (as defined below) on a full-time basis to render exclusive
services to the Company as managing director. The Executive hereby accepts
this
employment and will render his services as required by the Company
conscientiously, loyally, faithfully, competently and to the best of his talents
and abilities throughout the Term in accordance with the direction and control
of and directors of the Company (the “Directors”). Additionally, the Executive
hereby agrees to serve as Senior Vice President and Co-Chair of the Office
of
Technology of On2 and to serve in such capacity to the best of his talents
and
abilities throughout the term in accordance with the direction and control
of
his designated supervisor and the board of directors of On2.
2.
TERM
OF AGREEMENT. The initial term of this Agreement shall commence on the date
hereof and terminate on July 30, 2010. This Agreement may be renewed by the
Company or On2 upon 90 days’ written notice to the Executive prior to the
expiration of the initial term or any renewal term and acceptance of such offer
of renewal by the Executive within 10 days of receipt of such written notice.
The initial term, as extended by any renewal term, is referred to herein as
the
“Term.”
3.
EXECUTIVE’S DUTIES.
a.
In his
capacity as Senior Vice President and Co-Chair of the Office of Technology
of
On2, the Executive’s duties include those services customarily rendered by a
chief technology officer of a publicly traded company of the size of the Company
in the Company’s industry, including those duties as described in Appendix A
attached hereto, and such other duties and services as may reasonably be
assigned from time to time in the conduct of the business of the Company. The
Executive shares equal, joint responsibility for managing and co-chairing the
Office of Technology with Xxxxx Xxxxxxxx, Senior Vice President and Chief
Technology Officer, who shall also bear the title of SVP/CTO On2
Technologies.
b.
In his
capacity as managing director of the Company, the Executive duties shall include
the duties of a managing director of a company of the size of the Company in
the
Company’s industry.
c.
The
Executive’s services shall be rendered primarily at the Company’s offices in
Cambridge, U.K., at On2’s offices in Xxxxxxx Park, NY, USA, and at such other
locations as the Company may from time to time reasonably request consistent
with its business needs. Travel (and related reasonable expenses) to such
locations other than Cambridge will be at the Company’s expense, reimbursable to
the Executive in accordance with Section 5(b).
d.
The
Executive shall abide by all policies of On2 and the Company and shall, at
all
times, comply with all laws, rules and regulations applicable to him, in his
capacity as an employee of the Company, promulgated by any agency, commission
or
other body having regulatory or another authority over the Company or its
business.
4.
EXCLUSIVITY, RESTRICTIVE AGREEMENTS.
a.
During
the Term, the Executive shall devote all of his business time, skill and
energies exclusively to the businesses of the Company and its affiliates,
including On2 (the “Group”).
b.
The
Executive acknowledges that the nature of the services, position and expertise
of the Executive are such that he is capable of competing with the Group and
seriously damaging its business and its prospects to the detriment of its
stockholders and employees. In consideration of the Group’s performance of its
obligations under this Agreement, during the Term and thereafter during the
Restricted Period (as defined below), subject to the provisions of Section
11 of
Appendix B (if less restrictive than the following provisions of this Section
4(b)), the Executive shall not (i) directly or indirectly enter into the employ
of, or render any advice or services, whether or not for compensation, to,
any
Person (as defined below) engaged in any Competitive Business (as defined
below); (ii) directly or indirectly engage in any Competitive Business; (iii)
solicit, call on or transact, or engage in any direct or indirect business
activity, or provide assistance in such acts, for a purpose competitive with
the
business of the Group, with any (A) customer with whom the Group shall have
dealt at any time preceding the termination of the Executive’s employment, or
(B) independent contractor with whom the Group shall have dealt at any time
preceding the termination of the Executive’s employment; (iv) influence or
attempt to influence any then current or prospective customer or independent
contractor of the Group to terminate or modify any written or oral agreement
with the Group; (v) influence or attempt to influence any person, directly
or
indirectly, for a purpose competitive with the business of the Group, either
(A)
to terminate or modify an employment, consulting, agency, or other arrangement,
whether oral or written, with the Group, or (B) to employ or retain, or arrange
to have any other Person employ or retain, any person who has been employed
or
retained by the Group as an employee, consultant, or agent at any time during
the five (5) year period immediately preceding the termination of the
Executive’s employment; (vi) directly or indirectly have a relationship with or
become interested, whether or not for compensation, in any Competitive Business
as an individual, partner, member, joint venturer, shareholder, investor,
creditor, director, manager, officer, principal, agent, employee, trustee,
consultant, advisor or in any other relationship or capacity whatsoever or,
in
the case of any such company whose securities are traded on a national
securities exchange in the United States or otherwise or in the over-the-counter
market, acquire, directly or indirectly, an interest in excess of one percent
(1%) of the outstanding capital stock of such company. The Group’s business is
worldwide in scope; accordingly, the Executive agrees that the covenant not
to
compete contained in this Section 4(b) shall not be subject to any geographical
limit.
c.
For
purposes of this Section, any “Competitive Business” shall mean any business
(including, for the avoidance of doubt, any division, unit, subsidiary or
affiliate of any other business, whether or not such other business is a
Competitive Business, unless the Executive can demonstrate upon the Company’s
request that his employment by, engagement in, or his interest in, such unit,
division, subsidiary or affiliate does not and will not require him to provide
services, information, advice or relevant knowledge, skill, know-how or contacts
to the Competitive Business during the Restricted Period) or activity which
is
principally engaged in the design or development of digital video compression,
decompression or playback video technologies, video encoding software, or video
pre-processing or post processing technologies.
d.
For
purposes of this Section, “Person” shall mean any corporation, limited liability
company, partnership, joint venture, trust, individual or any other entity.
e.
For
all purposes of this Section 4, “Restricted Period” shall be the period of one
year immediately following termination of employment for whatever reason,
including, but not limited to, resignation, termination by the Executive for
Good Reason, termination by the Company with or without Cause (as defined below)
or upon the expiration of the Term.
5.
COMPENSATION.
a.
During
the Term the Executive shall receive base compensation at the rate of ₤90,000
per year, payable semi-monthly by the Company or any subsidiary in accordance
with the Company’s standard payroll policies or as otherwise may be reasonably
agreed to by the parties. Such base compensation as may be increased from time
to time and is hereinafter referred to as “Base Salary”.
b.
The
Company will reimburse the Executive for reasonable expenses related to its
business actually incurred or paid by the Executive in the performance of his
duties under this Agreement, including, but not limited to, home cable modem
and
satellite modem bills and cell phone bills, upon presentation of accountings,
expense statements, vouchers or such other supporting information as may be
required by the Company’s policies and upon the Company’s approval.
c.
The
Executive shall be eligible to participate in any incentive compensation or
other bonus scheme available to the most senior members of On2’s
management.
6.
EXECUTIVE BENEFITS.
a.
During
the Term, the Executive shall be entitled to participate in such group health,
retirement, profit sharing, and other benefits programs or plans, qualified
or
unqualified, including any future stock option, bonus or other incentive
program, which are or become available to other senior executives of On2 or
the
Company, subject to the policies of On2 or the Company with respect to all
of
such programs or plans and to variations in benefits policies by geographical
region. Nothing in this Section 6(a) shall be construed to create a contractual
obligation to provide the Executive with any particular form or type of benefit
or to limit the discretion of the Board or Compensation Committee of On2 or
any
other duly authorized or appointed plan administrator is permitted to exercise
under any such benefit programs or plans.
b.
During
the Term the Executive shall be entitled to long service holiday entitlement
and
other holiday entitlement as provided in Section 2 of Appendix B, to be
scheduled on reasonable notice to the Company.
c.
The
foregoing provisions of this Section 6 shall be subject to the provisions of
Sections 3 through 6 of Appendix B. In case of any inconsistency between Section
6 and any provision of Appendix B, the provisions of Appendix B shall
prevail.
7.
TERMINATION OF EMPLOYMENT FOR CAUSE.
a.
The
Company may terminate employment of Executive at any time for any of the
following reasons, each of which is defined as “Cause” (which definition shall
also include the provisions of Section 9.3 of Appendix B):
i.
commission of a felony, any crime of moral turpitude or any act of material
fraud or dishonesty;
ii.
misconduct involving fraud, dishonesty or illegality that could reasonably
be
expected to damage the Company, its business, operations or reputation, as
determined by the Board;
iii.
repeated failure to satisfactorily perform material services required under
this
Agreement in accordance with the requests of the Board;
iv.
willful misconduct or gross negligence in the performance of his duties;
v.
alcohol or illegal drug use or abuse which materially and adversely affects
the
Executive’s performance of his duties hereunder or the Company or its business,
operations or reputation;
vi.
disregard or violation of the legal rights of any employee of the Company or
of
the Company’s policies regarding harassment or discrimination;
vii.
material violation of any policies of the Company, the effect of which would
be
materially adverse to the Company or its business, operations or reputation;
or
viii.
a
breach of any material provision of this Agreement (including, but not limited
to, any breach of Sections 3 or 10).
If
the
Company terminates the employment of the Executive for Cause, or if the
Executive resigns during the Term, the Company’s obligations under this
Agreement to pay further compensation shall cease forthwith, except that the
Company will pay the Executive, within 30 days from the date of termination
of
his employment, in full and complete satisfaction of all of the Company’s
obligations under this Agreement, (i) the Base Salary and, subject to submission
of all required documentation and the Company’s approval, reimbursable expenses
accrued (but unpaid) through the date of termination and (ii) any accrued but
unused vacation days paid at the rate of the Executive’s Base Salary. Nothing
contained in this Section 7(a) shall be construed to alter the Executive’s right
under any stock option scheme pursuant to which options have been issued to
Executive.
b.
If the
Executive dies during the Term, such death shall be deemed termination for
Cause
and the Company’s obligation to Executive’s estate shall be the same as those
for termination for Cause as defined in Section 7(a) above.
c.
If, as
a result of the Executive’s disability or incapacity during the Term due to
physical illness or condition, or mental illness during the Term, the Executive
is unable to perform his duties hereunder for a consecutive 6-calendar week
period, or an aggregate period of 12 calendar weeks during any 12 months (or
such longer period as may be required to comply with any applicable law in
the
United States of America or the United Kingdom), the Company shall have the
right, upon 10 days written notice to the Executive, to terminate the
Executive’s employment under this Agreement. Such a termination shall be deemed
termination for Cause as defined in Section 7(a) but shall in no case become
effective until the date at which the Company’s long-term disability plan pays
benefits to him.
d.
Any
alleged breach of this Agreement by either party shall not be deemed a breach
until such time as the breaching party shall have received written notice from
the non-breaching party setting forth the alleged breach (“Alleged Breach
Notice”) and the breaching party shall not have cured (if curable) the breach
set forth in the Alleged Breach Notice in the 15 days (10 days in the case
where
the alleged breach relates to a default in payment) after receipt of such
Alleged Breach Notice. If the breach set forth in the Alleged Breach Notice
is
not curable and has not resulted in a substantive and material adverse effect
on
the party sending the Alleged Breach Notice, the Company and the Executive
shall, at the request of the other, attempt to meet and discuss such alleged
breach before resorting to remedies or rights under this Agreement or otherwise.
Notwithstanding the foregoing, this Section shall not apply to, and the
Executive shall have no right to cure, a breach by him under clauses (i) and
(iv) of the definition “Cause” contained in Section 7(a), above.
8.
TERMINATION OTHER THAN FOR CAUSE.
a.
If the
Company terminates the Executive’s employment without Cause, the Company’s
obligations under this Agreement shall be as follows:
i.
The
Company shall continue to pay to the Executive, or in the case of death of
the
Executive to his successors or legal representatives or to his estate, during
the first to occur of (A) the 180 days immediately following such termination
of
employment and (B) the expiration of the Term (such period is hereinafter
referred to as the “Severance Period”), his Base Salary on a semi-monthly basis
as would have been paid to the Executive had his employment with the Company
continued during the Severance period;
ii.
The
Company shall pay to the Executive his proportionate share of any bonus
compensation to which he would have received had he continued to be employed
until the end of the relevant bonus calculation period. Such bonus compensation
shall be payable in a lump sum within 30 days of determination of Executive’s
bonus amount;
iii.
The
Company shall continue to provide all benefits to the Executive during the
Severance Period as would have been provided had employment continued, including
medical, disability and life insurance; and
iv.
The
Company shall reimburse the Executive for all reasonable reimbursable expenses
accrued (but unpaid) to the date of termination or expiration of the Term,
subject to submission of all required documentation and the Company’s approval,
as the case may be; and within 10 business days after such termination, any
accrued but unused vacation days paid at Executive’s Base Salary.
b.
If a
termination without Cause takes effect prior to the expiration of the Term,
all
of the Executive’s stock options which would have vested and become exercisable
had the Executive’s employment continued to the end of the Term in which such
termination without Cause has occurred shall vest and become exercisable in
accordance with their terms.
c.
Notwithstanding Section 8(b), if the Company terminates the Executive’s
employment without Cause following a business combination (including, but not
limited to, sale or purchase of assets, merger, consolidation or other
transaction that results in the stockholders of the Company receiving liquid
consideration for a majority of the holdings in the Company accompanied by
a
change in actual control of the Company), all stock options theretofore granted
to the Executive shall vest and become exercisable in accordance with their
terms.
d.
The
Executive shall further be subject to, and have the benefits of, Section 9
of
Appendix B, to the extent that the same relate to termination of employment
by
the Company without Cause.
9.
EXECUTIVE’S TERMINATION FOR GOOD REASON.
a.
If the
Executive terminates his employment for Good Reason (as defined below), the
Company’s obligations to pay further compensation under Section 5 shall cease
forthwith, except that the Company shall pay the Executive:
b.
All
Base Salary for the Severance Period;
c.
Any
amount of any bonus that has become payable with respect to a completed Calendar
Year (as defined below) but has not been paid to the Executive;
d.
The
Board’s good faith estimate of the amount of a bonus, if any, that would become
payable for the Calendar Year in which such termination occurs, based upon
the
goals agreed to by the Company and the Executive or established by the
Compensation Committee of the Company for such Calendar Year: and
e.
An
amount equal to all reasonable reimbursable expenses accrued (but unpaid) to
the
date of termination, subject to submission of all required documentation and
the
Company’s approval, as the case may be.
f.
“Good
Reason” means the occurrence of any of the following:
(i)
the
Executive is demoted or removed from, or does not continue to hold, the
positions or offices described in Section 1(a) hereto or a position or office
substantially similar in nature without his consent; or
(ii)
the
assignment to the Executive without his reasonable consent of any duties
materially inconsistent in any material respect with his position or with his
authority, duties or responsibilities as Senior Vice President and Chief
Technology Officer, or any other action by On2 or the Company which results
in a
material diminution in position, authority, duties or responsibilities from
the
position, authority, duties or responsibilities of a co-chief technology officer
of a company similar in size, capital structure and business to On2, excluding
for this purpose an isolated, insubstantial and inadvertent action not taken
in
bad faith or inherent in the nature of a jointly-held position;
(iii)
the
Company fails to pay or provide when due (or reduces) the Base Salary or
benefits to which the Executive is entitled hereunder, which failure is not
cured (or which reduction is not corrected) within 15 days after the receipt
by
the Company from the Executive of his written notice referring to this provision
and describing such failure (or reduction).
g.
“Calendar Year” means the twelve months ending December 31 in which any part of
the Term falls.
h.
The
Executive shall further be subject to, and have the benefit of Section 9 of
Appendix B, to the extent that the same relate to termination of employment
by
the Executive for Good Reason.
10.
NONDISCLOSURE.
a.
Except
as required in order to perform his obligations under this Agreement, the
Executive shall not, without the express prior written consent of the Company,
for any reason, directly or indirectly, disclose or divulge to any Person or
use
for his own benefit or for any purpose other than the exclusive benefit of
the
Group any of the Group’s Confidential Information or Trade Secrets at any time
(both during the Term and thereafter) during which such data or information
continues to constitute Confidential Information or a Trade Secret. Except
as
required to be disclosed to his attorney, accountant or financial advisor,
the
Executive shall not disclose or divulge to any Person (particularly to any
employee of the Company) any terms of the Executive’s compensation under this
Agreement. Upon any termination or expiration of his employment, the Executive
will promptly deliver to the Company all data, lists, information, memoranda,
documents and all other property belonging to the Group or containing
Confidential Information or Trade Secrets of the Group.
b.
As
used in this Agreement:
i.
“Confidential Information” of the Group shall mean any valuable, competitively
sensitive data and information related to the Group’s business other than Trade
Secrets that are not generally known by or readily available to the Group’s
competitors, including, among other things, that which relates to services
performed by the Executive for the Group, or was created or obtained by the
Executive while performing services for the Group or by virtue of the
Executive’s relationship with the Group. “Confidential Information” includes,
but is not limited to, all tangible or intangible business or financial plans,
processes, strategies, market research and analyses, projections, methods and
techniques, forecasts and forecast assumptions, business practices, operations
and procedures, marketing information, customer information and other business
information, including records, technologies, designs, patents, business plans,
financial statements, manuals, memoranda, lists and other documentation
respecting the Group; and
ii.
“Trade Secrets” shall mean information or data of the Group, including but not
limited to technical or non-technical data, compilations, programs, devices,
methods, techniques, processes, financial data and financial plans, that: (a)
derive economic value, actual or potential, from not being generally known
to,
and not being readily ascertainable by proper means by, other Persons who can
obtain economic value from their disclosure or use; and (b) are the subject
of
efforts that are reasonable under the circumstances to maintain their secrecy.
To the extent that the foregoing definition is inconsistent with a definition
of
“trade secret” mandated under applicable law, the latter definition shall govern
for purposes of interpreting the Executive’s obligations under this Agreement.
iii.
The
obligations set forth in this Section shall not be applicable to any information
which: (A) the Group has authorized the Executive in writing to publicly
disclose, copy or use, but only to the extent of such authorization; (B) is
generally known or becomes part of the public domain through no fault of the
Executive; (C) is disclosed to On2 by third parties without restrictions on
disclosure; or (D) is required to be disclosed in the context of any
administrative or judicial proceedings; PROVIDED that, if the Executive is
requested or becomes legally compelled to disclose any Confidential Information
or Trade Secrets, the Executive will provide On2 with prompt written notice
so
that On2 may seek a protective order or other appropriate remedy and/or waive
compliance with the provisions of this Section and the Executive will cooperate
with On2 in any effort On2 undertakes to obtain a protective order or other
remedy. If such a protective order or other remedy is not obtained or On2 waives
compliance with this Section, the Executive will furnish only that portion
of
the Confidential Information and Trade Secrets that is legally required and
will
exercise all reasonable efforts to obtain reliable assurance that confidential
treatment will be accorded the Confidential Information to be disclosed. On2
hereby agrees to indemnify and hold harmless Executive from all costs and
expenses, including attorneys’ fees, he incurs in carrying out his obligations
under the provisions of this subsection 10(b)(iii) and further agrees upon
the
written request of Executive to advance to Executive the anticipated cost of
complying with his obligations under such proviso provisions.
11.
REPRESENTATIONS AND WARRANTIES. The Executive hereby represents and warrants
that (a) he has the right to enter into this Agreement with the Company and
to
grant the rights contained in this Agreement, and (b) the provisions of this
Agreement do not violate any other contracts or agreements that the Executive
has entered into with any other individual or entity.
12.
SERVICES OF THE EXECUTIVE. In the course of his employment under this Agreement,
the Executive will have access to Trade Secrets, the disclosure or unauthorized
use of which, the Group seeks to protect and the Executive has agreed to
protect. As a result of benefits accruing to the Executive from his access
to
such Trade Secrets, and of the improvement in his knowledge, and proficiency
arising therefrom, the Executive acknowledges that (a) his services are and
will
remain special and extraordinary, and have and will have a peculiar value,
the
loss of which cannot be reasonably or adequately compensated in damages in
any
action at law; (b) he is willing to comply with the restrictions contained
in
Sections 4(b) and 4(c); (c) the restrictions contained in those Sections will
not impair his ability to earn a living in any businesses other than those
businesses from which he is prohibited during the time of such restriction;
and
(d) a material breach of his obligations under Sections 4(b), 4(c) or 10 will
cause the Group irreparable injury and damage. It is, therefore, agreed that
the
Group, in addition to any other remedies, shall be entitled to injunctive and
other equitable relief to enforce its rights under, and to prevent a breach
of,
Sections 4(b), 4(c) and 10 of this Agreement by the Executive.
13.
ASSIGNABILITY ETC. This Agreement shall be nondelegable and nonassignable by
the
Executive, and shall inure to the benefit of heir and assigns the Executive.
This Agreement shall be binding upon and inure to the benefit of the Company
and
any entity succeeding to all or substantially all of the business assets of
the
Company by merger, consolidation, purchase of assets or otherwise.
14.
NOTICES. Any notice pertaining to this Agreement shall be in writing and shall
be served by delivering said notice (i) by hand, (ii) by overnight mail by
a
internationally recognized carrier, (iii) by sending it by certified mail,
postage prepaid, return receipt requested, or (iv) by confirmed fax, with notice
confirmed, to the Executive at the address first stated above or his office
at
the Company, and to the Company at the addresses stated above with a copy
to:
00
Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx
Xxxx, XX 00000
Attn:
Chief Executive Officer
The
addresses for notice may be changed by notice given to the other party pursuant
to this Section.
15.
MISCELLANEOUS.
a.
This
Agreement (including its Appendices) contains the entire understanding of the
parties to this Agreement with respect to the subject matter of this Agreement
and supersedes all previous written and oral agreements between the parties
with
respect to the subject matter set forth in this Agreement. The rights granted
to
the Executive under Appendix B shall be in addition to the rights granted under
the provisions of this Agreement
b.
This
Agreement may not be modified or amended except by a writing signed by the
parties to this Agreement.
c.
Any
provision of this Agreement that is deemed invalid, illegal or unenforceable
in
any jurisdiction shall, as to that jurisdiction and subject to this Section,
be
ineffective to the extent of such invalidity, illegality or unenforceability,
without affecting in any way the remaining provisions of this Agreement in
such
jurisdiction or rendering that or any other provision of this Agreement invalid,
illegal or unenforceable in any other jurisdiction. If the covenant should
be
deemed invalid, illegal or unenforceable because its scope is considered
excessive, such covenant shall be modified so that the scope of the covenant
is
reduced only to the minimum extent necessary to render the modified covenant
valid, legal and enforceable.
d.
The
following provisions of this Agreement shall survive in accordance with their
terms, the expiration or termination of this Agreement for any reason: Sections
4, 7, 8, 9, 10, 11, 12 and 15.
e.
A
waiver by either party of any Section, term or condition of this Agreement
in
any instance shall not be deemed or construed to be a waiver of such Section,
term or condition for the future or of any subsequent breach thereof, and any
such waiver must be in writing, signed by the party to be charged. All rights
and remedies contained in this Agreement are cumulative, and none of them shall
be construed so as to limit any other right or remedy of either party.
f.
The
headings and titles to the Sections of this Agreement are inserted for
convenience only and shall not be deemed a part of or affect the construction
or
interpretation of any provisions of this Agreement.
g.
All
references to Sections shall be to sections and schedules of this Agreement.
h.
All
references using male pronouns shall be deemed to include female pronouns.
i.
This
Agreement may be signed in multiple counterparts, each of which shall be deemed
an original. Any executed counterpart returned by facsimile shall be deemed
an
original executed counterpart.
If
the
foregoing accurately reflects the Executive’s understanding, please countersign
and return one counterpart of this Agreement to the Company.
Sincerely
yours,
METAVISUAL
CREATIONS LIMITED
By:
_________________________
Name:
Title:
Director
Consented
to:
ON2
TECHNOLOGIES, INC.
(in its
capacity as sole stockholder of Metavisual Creations Limited)
By:
_________________________
Name:
Xxxx
Xxxx
Title:
President
and Chief Executive Officer
EXECUTIVE
_________________________
Xxxx
Xxxxxxx
APPENDIX
A
Office
of the Technology
The
Office of the Technology (“Office”) is an executive department reporting to the
CEO focused on scientific and technical issues within a company. The Office
will
oversee a technical staff at the company with a focus on research related to
video compression technologies. The principals must be responsible for creating,
evangelizing - both internally and externally - and then implementing a
technological strategy for the entire On2 business with the goal of
strengthening On2’s leading position in video compression technologies and
establishing a strategic leadership in a fast-growing video space:
Responsibilities/Skills
This
office provides a technical voice in the strategic planning for a company and
helps determine what types of products or services the company should focus
on.
A
list of
responsibilities/ required skills are:
| · |
Innovate.
Participate in research and product creation directly. Be a significant
part of innovative products. Anticipate and leverage technology
opportunities to maintain competitive
advantage
|
| · |
Manage.
Lead and manage the research relating to technologies that are of
significance to the company. Build internal expertise in new areas.
Manage
and grow the company’s technical infrastructure to support domestic and
international growth.
|
| · |
Advise.
Provide advice on company products, services, strategy, and structure.
Similar to any other corporate executive, but with a uniquely technical
competence. Evaluate all internal technologies (On2/Hantro) and work
with
the Development organizations to maximize the value of existing and
future
products based on the analysis of these
technologies.
|
| · |
Value.
Aid in the valuation of internal businesses or of potential acquisitions.
Provide analysis and opinion on the value of product portfolios, patents,
facilities, and skilled staff.
|
| · |
Vision.
Build a vision for what technology will make possible, how it will
impact
a company’s business area, and how to squeeze the most value from these
changes.
|
| · |
Communicate.
Communicate the vision of the company to its own technical staff, to
industry groups, and to the technical trade press. Engage these groups
with terms from their own domain and with the personal credentials
to be
respected.
|
| · |
Teamwork.
Work with product architects, engineering and business managers to
ensure
that the technological strategy results in creating a thoroughly modern
product line capable of satisfying fast changing market demands and
thus
maximize business objectives. Excellent consensus building and written
and
verbal communication skills a must.
|
APPENDIX
B
STATEMENT
OF MAIN TERMS AND CONDITIONS OF EMPLOYMENT
DATE
AT WHICH INFORMATION IN THIS DOCUMENT IS CORRECT: July 30,
2007
EMPLOYEE'S
NAME: Xxxx Xxxxxxx
DATE
OF COMMENCEMENT OF EMPLOYMENT:
Continuous
period of employment, beginning with the commencement of your employment with
MetaVisual Creations Limited (“Metavisual”)
MAIN
PLACE OF WORK:
Per
the
Letter Agreement, dated July 30, 2007, to which this Appendix B is attached
(the
"Executive Employment Agreement")
JOB
TITLE
Per
the
Executive Employment Agreement.
1. HOURS
OF WORK
| 1.1 |
You
will normally work a minimum 371/2
hour
week of the five days Monday to Friday inclusive, plus such time as
is
necessary to adequately fulfill the requirements of your
job.
|
2. HOLIDAYS
AND HOLIDAY PAY
| 2.1 |
The
holiday year is from 1 January to 31 December each
year.
|
| 2.2 |
The
Company provides a holiday entitlement of 30 working days plus any
long
service entitlement.
|
| 2.3 |
In
addition to the above, you will also receive a paid holiday on or in
respect of each of the eight Public Holidays as listed
below:
|
New
Year's Day May
Day
Christmas
Day
Good
Friday Spring
Bank
Holiday Boxing
Day
Easter
Monday Late
Summer Holiday
| 2.4 |
Employees
joining or leaving the Company during the year will be entitled to
a
proportion of their full entitlement of paid holiday calculated on
a pro
rate basis per completed week of service.
|
| 2.5 |
You
will continue to receive normal salary while taking annual holiday
entitlement.
|
| 2.6 |
Should
you leave the Company for whatever reason and holidays taken exceed
entitlements, then you accept as part of these Conditions of Employment
that the Company has the right to deduct payments made in excess from
any
monies owing to the Company.
|
| 2.7 |
Should
you be absent for more than 13 weeks for any reason, the Company reserves
the right to suspend accrual of any holiday in excess of the minimum
4
weeks conferred by the Working Time Regulations (this Clause will not
apply to the Ordinary Maternity Leave
period.)
|
3. SICK
PAY SCHEME
| 3.1 |
In
addition to the Statutory Sick Pay Scheme for which the qualifying
days
will be Monday to Friday, the Company operates a discretionary Sick
Pay
Scheme for employees, details of which are as
follows:
|
| 3.1.1 |
Up
to two weeks sickness will be paid at full pay in any 12 month
period.
|
| 3.2 |
Any
further discretionary sick pay will be dependent on the nature of the
illness or injury, length of service and previous attendance record
and a
case meeting will be held between the Line Manager and HR to discuss
the
facts of the case and the employee would be advised of the outcome.
Discretionary sick pay will not apply to short-term absenteeism that
is
only self-certified nor will it be offered in circumstances of sports
injuries or where there is sufficient evidence to satisfy the Company
that
the absence was through the employee's own
negligence.
|
| 3.3 |
To
qualify for Company sick pay, you must also comply with the requirements
for sickness notification and certification as laid down in the Employment
Section of the On2 Technologies Employee Handbook (the “Employee
Handbook”).
|
| 3.4 |
Any
additional Company sick pay will be subject to the receipt of medical
certification and if necessary medical reports, and are entirely at
the
discretion of the Company and will not create a precedent either for
Company or for the individual.
|
| 3.5 |
In
the event the Company believes that an employee qualifies for further
discretionary sick pay, as outlined above, the following guidelines
would
be considered.
|
3.5.1 Up
to
three years continuous service ………..13 weeks at half pay.
3.5.2 After
three years but less than five years
continuous
service………………………… 13
weeks
at full pay.
3.5.3 After
five years continuous service…….....… 13
weeks
at full pay and
a
further
13 weeks at half pay
| 3.6 |
The
sick pay year, for calculation purposes, starts from the first period
of
absence in any 52 week period and all payments will be made up from
any
Statutory Sick Pay entitlement or any State Sickness
Benefit.
|
4. HEALTH
CARE SCHEMES
| 4.1 |
You
may participate free of charge in Company's private health insurance
scheme (which is taxable as a benefit in kind) and Company's permanent
health insurance scheme, subject to acceptance by the insurance company
(which provides an income during prolonged absence due to total
disablement). You would be subject to the rules of the
schemes.
|
| 4.2 |
You
are advised that these benefits are only provided while still in
employment. This provision does not imply that the company will retain
employees who are incapable of carrying out normal contractual duties
by
reason of ill health. In appropriate circumstances the Company reserves
the right to terminate employment on the grounds of capability even
though
this would mean that the benefit under the Private Health Insurance
scheme
would no longer be payable.
|
5. PENSION
SCHEME
| 5.1 |
All
employees are automatically "contracted-in" to the State Earnings Related
Pension Scheme (SERPS). Employees may choose to "contract-out" of SERPS
either using the Company’s Group Personal Pension Scheme or a personal
pension provider of their choice (if any). Employees are urged to seek
Independent Financial Advice as to the suitability of "contracting-out"
and this should be reviewed on a regular
basis.
|
6.
LIFE
ASSURANCE
| 6.1 |
Company
provides you with life assurance cover from your first day of employment
to a level of four times basic salary subject to you being accepted
by the
insurance company.
|
7. GRIEVANCES
| 7.1 |
The
Company's grievance procedure is as detailed in the Employee
Handbook.
|
8.
DISCIPLINARY
PROCEDURES
| 8.1 |
The
main disciplinary procedures of the Company are as detailed in the
Employment section of the Employee
Handbook.
|
9.
TERMINATION
OF EMPLOYMENT
| 9.1 |
After
eights months continuous service, the Company is required to give you
and
you are required to give the Company three months notice in writing
irrespective of length of service. If you give notice to the Company
to
terminate your employment or you are given notice by the Company, it
may
be possible, by mutual agreement, to waive the formal periods of
notice.
|
| 9.2 |
If
the Company terminates your employment without Cause (Cause is defined
below), then you will be entitled to receive a severance
payment.
|
"Cause"
shall mean:
| (i) |
your
embezzlement, willful breach of fiduciary duty or fraud with regard
to the
Company or any of the Company's assets or
businesses.
|
| (ii) |
your
conviction of any criminal offense (other than a traffic
violation);
|
| (iii) |
your
behavior, which is likely in the reasonable opinion of the company
to
prejudice the interests of reputation of the Company;
or
|
| (iv) |
any
other breach by you of a material provision of the terms of your
employment hereunder that remains incurred for thirty (30) days after
written notice thereof is give to you. If the Company terminates your
employment for Cause, the Company shall have no further obligation
of
liability to you relating to your employment hereunder, or the termination
thereof, other than for your base salary earned but unpaid through
to the
date of termination.
|
| 9.3 |
The
Company has the right to dismiss employees without notice in the case
of
gross misconduct.
|
| 9.4 |
The
Company reserves the right to make deductions from an employee's salary
upon leaving or otherwise to reclaim any outstanding monies owed by
the
employee to the Company.
|
10. GARDEN
LEAVE
| 10.1 |
The
Company reserves the right to require you to remain at home during
any
notice period and remain available to attend the workplace if required.
During any notice you may not be engaged in any capacity with another
company without written permission
|
11. RESTRAINT
CLAUSE
| 11.1 |
Due
to the nature of your work, upon leaving the Company you are not allowed,
for a period of one year from the date of termination, to work for
any
competitor of the Company, or set up a business in competition, either
directly or indirectly, within that
radius.
|
| 11.2 |
You
will not for one year after the termination of your employment for
whatever reason, endeavor to solicit orders or custom from any person,
firm or company who during the period of one year before termination
of
your employment have been a customer of the Company or any associated
Company, or endeavor to influence in any way the relationship between
any
supplier or employee of the Company or any associated
Company.
|
| 11.3 |
Each
of the clauses listed above are deemed to be independent and should
any
clause be judged to be unenforceable, then any such judgment will not
make
null and void or adversely affect the other
clause(s).
|
12. COLLECTIVE
AGREEMENTS
| 12.1 |
There
are no collective agreements, which affect the terms and conditions
of
your employment.
|
13. DATA
PROTECTION
| 13.1 |
I
understand and agree that the Company is permitted to hold personal
information about me as part of its personnel and other business records
and may use such information in the course of the Company's
business.
|
14. PROVISION
OF BENEFITS BY THE ON2 GROUP
| 14.1 |
I
understand and agree that Company’s parent corporation, On2 Technologies,
Inc. (“On2”), or any other subsidiary of On2 may, to the extent allowed by
applicable law or regulation, provide some or all of the benefits
described herein.
|
15. DECLARATION
I
accept
this Statement, a copy of which has been given to me.
I
have
also received a copy of the Employee Handbook, which I understand is part of
my
"terms of Employment".
Signed:_______________ Dated:____________________
