Exhibit 10.35
December 31, 2007
Xxxxxx X. Xxxxxxx
00 Xxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Re: Employment Agreement
Dear Xxxxxx:
On behalf of Salon Media Group, Inc. (the "Company"), I am pleased to
confirm our verbal offer of employment to you for the position of Executive Vice
President - Chief Financial Officer, reporting to Xxxxxxxxxxx Xxxxxxx, Chief
Executive Officer. This letter agreement (this "Agreement") sets out the terms
of your employment with the Company, which will start on December 31, 2007. (the
"Start Date").
You will be paid a starting base salary of $8,333.33 semi-monthly ($200,000
on an annualized basis), less applicable tax and other withholdings in
accordance with the Company's normal payroll procedure. You will also be
eligible to participate in various Company fringe benefit plans, including group
health insurance, 401(k), holidays and vacation programs (4 weeks per annum),
and any other benefits generally provided from time to time by the Company to
its executive officers. You will also be promptly reimbursed for all reasonable
out-of-pocket expenses incurred in the performance of your employment, upon
presentation of appropriate documentation, in accordance with the Company's
standard procedures. Any such business expense reimbursement you are entitled to
receive shall (i) be paid no later than the last day of the year following the
year in which the expense was incurred, (ii) not affect any other expenses that
are eligible for reimbursement in any year and (iii) not be subject to
liquidation or exchange for another benefit.
You will be entitled to an annual bonus plan for each fiscal year beginning
with Fiscal Year 2009 (April 1, 2008 through March 31, 2009), to be targeted
between 50% and 100% of your then base salary, based on goals to be mutually
agreed upon within thirty days of the beginning of each fiscal year.
Subject to the approval of the Company's Board of Directors, as of the date
hereof, you will be granted an option to purchase an amount of shares of Company
common stock equal to two percent (2.0%) of the fully diluted shares of the
Company under the Company's 2004 Stock Plan at an exercise price equal to the
fair market value of that stock on your option grant date. Your option will vest
over a period of four years from the date of grant (25% one year after the date
of grant and 1/48 per month thereafter), and will be subject to the terms and
conditions of the Company's 2004 Stock Plan and standard form of stock option
agreement, which you will be required to sign as a condition of receiving the
option.
Additionally, subject to the approval of the Company's Board of Directors,
on January 1, 2008, you will be granted options to purchase a number of common
shares equal to one half of one percent (0.5%) of the then fully-diluted shares
outstanding under the Company's 2004 Stock Plan at an exercise price equal to
the fair market value of that stock on your option grant date. These options
will vest in their entirety upon the achievement by the Company of Positive
Operating Cash Flow for any trailing four fiscal quarters. For purposes of this
agreement, Positive Operating Cash Flow is defined as earnings before interest
and taxes,
plus all non-cash charges including but not limited to depreciation and
amortization, share-based compensation, and amortization of prepaid advertising
rights. Fully-diluted shares includes all shares outstanding as of the date(s)
of grant after giving effect to the conversion and or exercise of all issued or
required to be issued shares of preferred stock, options, warrants and other
equity derivative instruments.
The vesting of all shares subject to options described above will be
subject to your continued service to the Company during the time periods
specified, except as noted below.
Your employment with the Company is "at will"; it is for no specified term,
and may be terminated by you or the Company at any time, with or without cause
or advance notice.
In the event of a termination of your employment by the Company for a
reason other than 1) "Cause" (as defined below), 2) your death or 3) your
"Disability" (as defined below), or a termination of your employment by you for
a "Good Reason" (as defined below), provided that you execute and deliver a full
general release of all known and unknown claims that you may then have against
the Company arising out of or in any way related to your employment or
termination of employment with the Company and such general release has become
effective in accordance with its terms prior to the 30th day following the date
of your termination of employment, you will be entitled to receive the
following: (i) a "Severance Payment" in an amount equal to six (6) months of
your then current Base Salary, less applicable withholding, payable, except as
otherwise provided below, in accordance with the Company's regular payroll cycle
and in equal installments over a six month period (the "Severance Period")
commencing on the first payroll date at least 30 days following the date of such
termination of employment; (ii) if you are covered under the Company's group
health plan as of the date of termination of your employment and as a result of
the termination of employment you suffer a loss of benefits under such group
health plan, and you timely elect to continue group health benefits under
applicable law (COBRA), the Company will reimburse you for any COBRA premiums
you pay for COBRA coverage for the period from the date of termination of
employment until the earlier of (A) the date on which you first become covered
under another employer's group health plan, or (B) the date that is six (6)
months after the date of termination of your employment (the "COBRA Payments");
(iii) payment on the first payroll date at least 30 days after your termination
of employment of an amount equal to the bonus that you would have earned for the
then current fiscal year under your then applicable bonus plan if the Company's
then current fiscal year were deemed ended (and you were deemed employed on but
not after) the date of such termination and (iv) if such a termination of
employment occurs before six months after the Start Date, 12.5% of the
restricted shares and shares subject to then outstanding options held by you
shall be fully vested and exercisable as of the date of termination of your
employment; (v) if such a termination of employment occurs at least six months
after the Start Date but before one year after the Start Date, vesting of 50% of
the restricted shares and shares subject to then outstanding options held by you
shall be fully vested and exercisable as of the date of termination of your
employment; (vi) if such a termination of employment occurs at least one year
after the Start Date, 100% of the unvested restricted shares and then
outstanding options held by you shall be fully vested and exercisable as of the
date of termination of your employment, (vii) payment of any unpaid salary
earned through your termination date, (viii)reimbursement of any business
expenses incurred through your termination date, and (ix) payment of any accrued
and unused vacation.
Notwithstanding the foregoing, no amount payable pursuant to this Agreement
which constitutes a "deferral of compensation" within the meaning of the
Treasury Regulations issued pursuant to Section 409A of the Internal Revenue
Code (the "Section 409A Regulations") shall be paid unless and until you have
incurred a "separation from service" within the meaning of the Section 409A
Regulations. Furthermore, to the extent that you are a "specified employee"
within the meaning of the Section 409A Regulations as of the date of your
separation from service, no amount that constitutes a deferral of compensation
which is payable on account of your separation from service shall paid to you
before the date (the "Delayed Payment Date") which is first day of the seventh
month after the date of your separation from service or, if earlier, the date of
your death following such separation from service. All such amounts that would,
but for this Section, become payable prior to the Delayed Payment Date will be
accumulated and paid on the Delayed Payment Date.
For the purposes of this Agreement, "Cause" shall mean the occurrence of
one or more of the following: (1) your theft, dishonesty, willful misconduct,
breach of fiduciary duty for personal profit, or falsification of any Company
documents or records; (2) your material failure to abide by the Company's code
of conduct or other policies (including, without limitation, policies relating
to confidentiality and reasonable workplace conduct); (3) your unauthorized use,
misappropriation, destruction or diversion of any tangible or intangible asset
or corporate opportunity of the Company (including, without limitation, your
willful improper use or disclosure of the Company's confidential or proprietary
information); (4) any intentional act by you that has a material detrimental
effect on the Company's reputation or business; (5) your repeated failure or
inability to perform any reasonable assigned duties after written notice from
the Company of, and a reasonable opportunity to cure, such failure or inability;
or (6) your conviction (including any plea of guilty or nolo contendere) of any
criminal act involving fraud, dishonesty, misappropriation or moral turpitude,
or which impairs your ability to perform your duties for the Company.
For the purposes of this Agreement, "Good Reason" shall mean the occurrence of
one or more of the following without your consent:
(a) A material and adverse change in your duties or responsibilities;
(b) The Company's failure to pay your base salary or bonus when due;
(c) The Company's failure to grant you the stock options described above;
(d) A relocation of your principal place of employment in New York City by
more than 50 miles; or
(e) The willful violation by the Company of any of its material obligations
under this Agreement;
provided, that in each case Good Reason shall only exist if (i) you have
provided the Company written notice within 60 days of the first occurrence of a
condition described above of your view that a "Good Reason" has occurred and
your intention to resign for Good Reason, (ii) the Company does not within
thirty (30) days following receipt of such notice cure the adverse effect of the
event that you have asserted to be "Good Reason" for termination, and (iii) you
have resigned from your employment with the Company within 6 months following
the first occurrence of a condition described above.
For the purposes of this Agreement, "Disability" shall mean an illness, injury
or other incapacitating condition as a result of which you are substantially
unable to perform the services required to be performed under this letter
agreement, even with reasonable accommodation, if necessary, for (i) one hundred
twenty five (125) consecutive days (or, if longer, such period as is then
required by law); or (ii) a period or periods aggregating more than one hundred
eighty (180) days (or, if longer, such period as is then required by law) in any
period of twelve (12) consecutive months.
In the event of a "Change in Control" (as defined below) all the shares
subject to then outstanding options and restricted shares, if any, held by you
shall be fully vested and exercisable.
For the purposes of this Agreement, "Change of Control" is defined as any
one of the following occurrences:
(a) Any "person" (as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934 (the "Exchange Act")), other than a trustee or
other fiduciary holding securities of Company under an employee benefit plan of
Company, becomes the "beneficial owner" (as defined in Rule 13d-3 promulgated
under the Exchange Act), directly or indirectly, of the securities of Company
representing more than 50% of (A) the outstanding shares of common stock of
Company or (B) the combined voting power of the Company's then-outstanding
securities; or
(b) The sale or disposition of all or substantially all of Company's assets
(or any transaction having similar effect is consummated); or
(c) Company is party to a merger or consolidation that results in the
holders of voting securities of Company outstanding immediately prior thereto
failing to continue to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) more than 50% of the
combined voting power of the voting securities of Company or such surviving
entity outstanding immediately after such merger or consolidation; or
(d) The dissolution or liquidation of Company.
The Company and you hereby agree that all controversies, claims or disputes
arising out of or relating to this Agreement, your employment relationship with
the Company (including, but not limited to, any claims of age, sex, sexual
orientation, race, color, national origin, ancestry, marital status, religious
creed, physical or mental disability or medical condition or other
discrimination, retaliation or harassment) and/or the termination of your
employment for any reason shall be settled by confidential, binding arbitration
in New York through the American Arbitration Association ("AAA") under the AAA's
National Rules for the Resolution of Employment Disputes then in effect, which
are available online at the AAA's website at xxx.xxx.xxx. Unless otherwise
required by law, the costs of the arbitration shall be borne by the party who
does not prevail in the dispute or as otherwise determined by the arbitrator(s)
in their sole discretion. In agreeing to this provision, you and the Company
hereby waive your respective rights to have any such disputes or claims tried
before a judge or jury.
As a condition of your employment, you will be required to sign the
Company's standard form of employee nondisclosure and assignment agreement, and
to provide the Company with documents establishing your identity and right to
work in the United States. Those documents must be provided to the Company
within three days after the Start Date.
This Agreement and the non-disclosure and stock option agreements referred
to above constitute the entire agreement between you and the Company regarding
the terms and conditions of your employment with the Company, and they supersede
all prior negotiations, representations or agreements between you and the
Company. The provisions of this Agreement regarding "at will" employment may
only be modified by a document signed by you and an authorized representative of
the Company.
The Company intends that income provided to you pursuant to this Agreement will
not be subject to taxation under Section 409A of the Internal Revenue Code. The
provisions of this Agreement shall be interpreted and construed in favor of
satisfying any applicable requirements of Section 409A. However, the Company
does not guarantee any particular tax effect for income provided to you pursuant
to this Agreement. In any event, except for the Company's responsibility to
withhold applicable income and employment taxes from compensation paid or
provided to you, the Company shall not be responsible for the payment of any
applicable taxes on compensation paid or provided to you pursuant to this
Agreement. The Company agrees to work together with you in good faith to
consider amendments to this Agreement as appropriate to avoid imposition of any
additional tax or income recognition prior to actual payment to Executive under
Section 409A of the Code and any temporary or final Treasury Regulations and
Internal Revenue Service guidance thereunder.
Xxxxxx, we look forward to working with you at the Company. Please
sign and date this Agreement on the spaces provided below to acknowledge your
acceptance of the terms of this Agreement.
Sincerely,
Salon Media Group, Inc.
By: s/s Xxxxxxxxxxx Xxxxxxx
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Xxxxxxxxxxx Xxxxxxx
Chief Executive Officer
I agree to and accept employment with Salon Media Group, Inc. on the terms
and conditions set forth in this Agreement.
Date: December 31, 2007 s/s Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
