SYMPOSIUM CORPORATION
EMPLOYMENT AGREEMENT
This Employment Agreement (this "AGREEMENT") is made and entered into as
of January 1, 1999, by and between Symposium Corporation, a Delaware corporation
(the "COMPANY"), and Xxxxxx Xxxxxxx ("EMPLOYEE").
1. ENGAGEMENT AND RESPONSIBILITIES
(a) Upon the terms and subject to the conditions set forth in this
Agreement, the Company hereby employs Employee as an officer of the Company.
Employee hereby accepts such employment. Employee shall have the title of Chief
Operating Officer, but may have any executive officer title determined by the
Board of Directors provided that Employee always has a title which is no less
senior than Chief Operating Officer.
(b) Employee agrees to devote all of Employee's business time, energy and
efforts to the business of the Company and will use Employee's best efforts and
abilities faithfully and diligently to promote the Company's business interests.
Employee's duties and responsibilities shall be those incident to those which
are normally and customarily vested in such office(s) of a corporation;
provided, however, that Employee shall report directly to the Board and not to
the Chief Executive Officer of the Company. In addition, Employee's duties shall
include those duties and services for the Company and its affiliates as the
Board shall, in its sole and absolute discretion, from time to time reasonably
direct which are not inconsistent with Employee's position described in Section
1(a). Notwithstanding the foregoing, but subject to Section 1(c) of this
Agreement, Employee shall be permitted to serve on the Board of Directors of, or
in a similar capacity with, other Persons and to manage his personal
investments.
(c) For so long as Employee is employed by the Company, Employee shall
not, directly or indirectly, either as an employee, employer, consultant, agent,
investor, principal, partner, stockholder (except as the holder of less than 5%
of the issued and outstanding stock of a publicly held corporation), corporate
officer or director, or in any other individual or representative capacity,
engage or participate in any business that is in competition in any manner
whatsoever with the business of the Company Group, as such businesses are now or
hereafter conducted.
2. DEFINITIONS
"BOARD" shall mean the Board of Directors of the Company.
"COMPANY GROUP" shall mean the Company and each Person that the Company
directly or indirectly Controls.
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"CONTROL" shall mean, with respect to any Person, (i) the beneficial
ownership of more than 50% of the outstanding voting securities of such Person,
or (ii) the power, directly or indirectly, by proxy, voting trust or otherwise,
to elect a majority of the outstanding directors, trustees or other managing
persons of such Person.
"DISABILITY," with respect to Employee, shall mean that, for physical or
mental reasons, Employee is unable to perform the essential functions of
Employee's duties under this Agreement for 60 consecutive days, or 90 days
during any one six month period. Employee agrees to submit to a reasonable
number of examinations by a medical doctor advising the Company as to whether
Employee shall have suffered a disability and Employee hereby authorizes the
disclosure and release to the Company and its agents and representatives all
supporting medical records. If Employee is not legally competent, Employee's
legal guardian or duly authorized attorney-in-fact will act in Employee's stead
for the purposes of submitting Employee to the examinations, and providing the
authorization of disclosure.
"FOR CAUSE" shall mean, in the context of a basis for termination of
Employee's employment with the Company, that:
(a) Employee breaches any obligation, duty or agreement under this
Agreement, which breach is not cured or corrected within 15 days of written
notice thereof from the Company (except for breaches of Sections 1(c), 6 or 7 of
this Agreement, which cannot be cured and for which the Company need not give
any opportunity to cure); or
(b) Employee commits any act of personal dishonesty, fraud, embezzlement,
breach of fiduciary duty or trust against the Company Group; or
(c) Employee is indicted for, or convicted of, or pleads guilty or nolo
contendere with respect to, theft, fraud, a crime involving moral turpitude, or
a felony under federal or applicable state law; or
(d) Employee commits any act of personal conduct that, in the reasonable
opinion of the Board, gives rise to any member of the Company Group of a
material risk of liability under federal or applicable state law for
discrimination or sexual or other forms of harassment or other similar
liabilities to subordinate employees; or
(e) Employee commits continued and repeated substantive violations of
specific written directions of the Board, which directions are consistent with
this Agreement and Employee's position as a senior or executive officer, or
continued and repeated substantive failure to perform duties assigned by or
pursuant to this Agreement.
"PERSON" shall mean an individual or a partnership, corporation, trust,
association, limited liability company, governmental authority or other entity.
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3. COMPENSATION AND BENEFITS
For so long as Employee shall be employed by the Company, Employee shall
receive the compensation and benefits set forth in this Section 3.
(a) SALARY. The Company shall pay Employee a salary at an annual rate of
$225,000 through June 30, 1999 and $350,000 thereafter. The Board may, but shall
not be obligated to, increase Employee's salary from time to time. The salary
shall be payable in installments in the same manner and at the same times the
Company pays salaries to other executive officers of the Company, but in no
event less frequently than equal monthly installments.
(b) EXPENSE REIMBURSEMENT. Employee shall be entitled to reimbursement
from the Company for the reasonable out-of-pocket costs and expenses which
Employee incurs in connection with the performance of Employee's duties and
obligations under this Agreement in a manner consistent with the Company's
practices and policies therefor. Employee shall also be reimbursed for the cost
of airfare for his spouse for up to two roundtrip flights per year from the
United States to Europe.
(c) EMPLOYEE BENEFIT PLANS. Employee shall be entitled to participate in
any pension, savings and group term life, medical, dental, disability, and other
group benefit plans that the Company makes available to its employees generally.
(d) VACATION. Employee shall be entitled to four weeks paid vacation,
which shall accrue in accordance with the Company's standard vacation accrual
policy.
(e) AUTOMOBILE ALLOWANCE. Employer shall pay directly to Employee, a
$2,000 per month car allowance during the term of this Agreement or as provided
for in Section 5(a), whichever period lasts longer (the "CAR Payments").
(f) DISABILITY. In the event of any Disability, if Employee shall receive
payments as a result of such Disability under any disability plan maintained by
the Company or from any government agency, the Company shall be entitled to
deduct the amount of such payments received from base salary payable to Employee
during the period of such Disability.
(g) WITHHOLDING. The Company may deduct from any compensation payable to
Employee (including payments made pursuant to Section 5 of this Agreement in
connection with or following termination of employment) amounts it believes are
required to be withheld under federal and state law, including applicable
federal, state and/or local income tax withholding, old-age and survivors' and
other social security payments, state disability and other insurance premiums
and payments.
4. TERM OF EMPLOYMENT
Employee's term of employment pursuant to this Agreement shall commence as
of the date hereof and shall terminate on the earliest to occur of the following
(the "DATE OF TERMINATION"):
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(a) upon the date set forth in a written notice of termination from
Employee to the Company (which date shall at least 60 days after the delivery of
that notice); provided, however, that in the event Employee delivers such notice
to the Company, the Company shall have the right to accelerate such termination
by written notice thereof to Employee (and such termination by the Company shall
be deemed to be a termination of employment pursuant to this Section 4(a), and
not a termination pursuant to Section 4(d) or 4(e) hereof);
(b) upon the death of Employee;
(c) upon delivery to Employee of written notice of termination by the
Company if Employee shall suffer a Disability;
(d) upon delivery to Employee of written notice of termination by the
Company For Cause; or
(e) upon delivery to Employee of written notice of termination by the
Company without cause.
5. SEVERANCE COMPENSATION
(a) If Employee's employment is terminated pursuant to Section 4(e) (by
the Company without cause), the Company shall, for the two-year period
commencing on the Date of Termination, continue to (i) pay to Employee salary at
the rate in effect on the Date of Termination; (ii) pay for Employee's (and his
immediate family's) participation in group medical, life, dental, disability and
similar plans to the extent permitted by the plan; and (iii) pay to the Employee
the Car Payments.
(b) If Employee's employment is terminated for any reason other than by
the Company without cause, the Company shall pay to Employee (or Employee's
estate or beneficiary, as the case may be) any unpaid base salary through the
Date of Termination. All rights and benefits which Employee or his estate may
have under employee benefit plans in which Employee shall be participating at
the date of termination of employment shall be determined in accordance with
such plans.
(c) If Employee's employment is terminated by the Company pursuant to
Section 4(d) (by the Company For Cause), and subject to applicable law and
regulations, the Company shall be entitled to offset against any payments due
Employee any loss or damage which the Company shall suffer as a result of the
acts or omissions of Employee giving rise to termination under Section 4(d).
(d) Employee acknowledges that the Company has the right to terminate
Employee's employment without cause and that such termination shall not be a
breach of this Agreement or any other express or implied agreement between the
Company and Employee. Accordingly, in the event of such termination, Employee
shall be entitled only to those benefits specifically provided in
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this Section 5, and shall not have any other rights to any compensation or
damages from the Company for breach of contract.
(e) Employee acknowledges that in the event of termination of Employee's
employment for any reason, Employee (nor Employee's estate, heirs, beneficiaries
or others claiming through Employee) shall not be entitled to any severance or
other compensation from the Company except as specifically provided in this
Section 5. Without limitation on the generality of the foregoing, this Section
supersedes any plan or policy of the Company which provides for severance to its
officers or employees, and Employee shall not be entitled to any benefits under
any such plan or policy.
6. COVENANT NOT TO SOLICIT
From the date hereof until one year from the Date of Termination:
(a) Employee will not, directly or indirectly, influence or attempt to
influence any customer of the Company Group to reduce or discontinue its
purchases of any products or services from the Company Group or to divert such
purchases to any Person other than the Company Group.
(b) Employee will not, directly or indirectly, interfere with, disrupt or
attempt to disrupt the relationship, contractual or otherwise, between the
Company Group and any of its respective suppliers, principals, distributors,
lessors or licensors; and
(c) Employee will not, directly or indirectly, solicit any employee of the
Company Group to work for any Person.
7. CONFIDENTIALITY
Employee agrees not to disclose or use at any time (whether during or
after Employee's employment with the Company) for Employee's own benefit or
purposes or the benefit or purposes of any other Person any trade secrets,
information, data, or other confidential information relating to customers,
development programs, costs, marketing, trading, investment, sales activities,
promotion, credit and financial data, financial methods, plans, or the business
and affairs of the Company Group generally, PROVIDED that the foregoing shall
not apply to information which is not unique to the Company Group or which is
generally known to the industry or the public other than as a result of
Employee's breach of this covenant. Employee agrees that upon termination of his
employment with the Company for any reason, he will return to the Company
immediately all memoranda, books, papers, plans, information, letters and other
data, and all copies thereof or therefrom, in any way relating to the business
of the Company Group except that he may retain personal notes, notebooks,
diaries, rolodexes and addresses and phone numbers. Employee further agrees that
he will not retain or use for his account at any time any trade names, trademark
or other proprietary business designation used or owned in connection with the
business of any member of the Company Group.
8. MISCELLANEOUS
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(a) NOTICES. All notices, requests, demands and other communications
(collectively, "NOTICES") given pursuant to this Agreement shall be in writing,
and shall be delivered by personal service, courier, facsimile transmission or
by United States first class, registered or certified mail, addressed to the
following addresses:
If to the Company, to:
Symposium Corporation
Bennet House
00 Xx. Xxxxx'x Xxxxxx
Xxxxxx XX0X 0XX Xxxxxxx
Attn: Chief Executive Officer and Board of Directors
If to Employee, to:
Employee's address as set forth on the books
and records of the Company
Any Notice, other than a Notice sent by registered or certified mail, shall be
effective when received; a Notice sent by registered or certified mail, postage
prepaid return receipt requested, shall be effective on the earlier of when
received or the third day following deposit in the United States mails. Any
party may from time to time change its address for further Notices hereunder by
giving notice to the other party in the manner prescribed in this Section.
(b) ENTIRE AGREEMENT. This Agreement contains the sole and entire
agreement and understanding of the parties with respect to the entire subject
matter of this Agreement, and any and all prior discussions, negotiations,
commitments and understandings, whether oral or otherwise, related to the
subject matter of this Agreement are hereby merged herein. No representations,
oral or otherwise, express or implied, other than those contained in this
Agreement have been relied upon by any party to this Agreement.
(c) SEVERABILITY. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason, in
whole or in part, the remaining provisions of this Agreement shall be unaffected
thereby and shall remain in full force and effect to the fullest extent
permitted by law.
(d) GOVERNING LAW. This Agreement has been made and entered into in the
State of New York and shall be construed in accordance with the laws of the
State of New York.
(e) CAPTIONS. The various captions of this Agreement are for reference
only and shall not be considered or referred to in resolving questions of
interpretation of this Agreement.
(f) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
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(g) ATTORNEYS' FEES. If any action or proceeding is brought to enforce or
interpret any provision of this Agreement, the prevailing party shall be
entitled to recover as an element of its costs, and not its damages, its
reasonable attorneys' fees, costs and expenses. The prevailing party is the
party who is entitled to recover its costs in the action or proceeding. A party
not entitled to recover its costs may not recover attorneys' fees. No sum for
attorneys' fees shall be counted in calculating the amount of a judgment for
purposes of determining whether a party is entitled to recover its costs or
attorneys' fees.
In Witness Whereof, the parties have executed this Agreement as of the
date first above written.
Symposium Corporation
By: /s/ XXXXXX XXXXXXXX-XXXXX
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Xxxxxx Xxxxxxxx-Xxxxx
Chief Executive Officer
/s/ XXXXXX XXXXXXX
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Xxxxxx Xxxxxxx
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