CONFIDENTIAL THESTREET.COM, INC. AGREEMENT FOR GRANT OF CASH PERFORMANCE AWARD UNDER
CONFIDENTIAL
XXXXXXXXX.XXX,
INC.
AGREEMENT
FOR GRANT
OF
CASH
PERFORMANCE AWARD
UNDER
2007
PERFORMANCE INCENTIVE PLAN
[DATE]
[Name]
[Address]
Dear
[Name]:
This
letter (the “Letter”)
sets forth the terms and conditions of the grant of a cash performance award
(the “Award”)
made to you by XxxXxxxxx.xxx, Inc. (the “Company”)
under the Company’s 2007 Performance Incentive Plan (the “Plan”).
Your
Award is subject to the terms and conditions set forth in the Plan, any rules
and regulations adopted by the Board of Directors of the Company or the
committee of the Board which administers the Plan (collectively, the “Committee”),
and this Letter.
Any
capitalized term used in this Letter and not defined shall have the meaning set
forth in the Plan.
In
general, the amount of your potential bonus is expressed as a Target Bonus,
which is the amount of your Award that you may earn if the Performance
Objectives specified in this Letter are achieved at the 100% level and the
Committee does not determine to award a lower amount. The amount
payable under your Award may be more or less than your Target Bonus, depending
on the level of performance achieved and the Committee’s discretion to award a
lesser amount; the Committee also may elect to approve the payment of additional
consideration, separate from this Award, in its sole discretion. The
Committee’s determination of the level of achievement of the performance
measures, and the ultimate amount of the Award, shall be final and binding on
you.
1. Target
Bonus.
Your
“Target
Bonus” is _____% of the base salary you receive during the Performance
Period.
2. Performance
Period.
The “Performance
Period” for this Award is set forth on Schedule A
hereto.
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CONFIDENTIAL
3. Performance
Objectives and Payout Scale.
The
“Performance
Objectives” with respect to your Award are described on Schedule A
hereto.
The
target level of performance for each of these Performance Objectives is the
amount set forth on Schedule A. The
amount of your Award may be determined separately for each of these Performance
Objectives, with reference to the scale set forth on Schedule
A. Failure to attain one measure may not affect your ability
to earn a bonus with respect to the other measure. The final
determination of the amount of your Award will be determined by the Committee in
its sole discretion, and may be an amount less than the amount calculated with
reference to the Performance Objectives; as noted above, the Committee also may
elect to approve the payment of additional consideration, separate from this
Award, in its sole discretion.
4. Payment
of Award.
Your
Award, in the amount determined by the Committee, will be paid in a lump sum in
cash within 60 calendar days after the end of the Performance Period, provided
that you are continuously employed by the Company as a full-time employee
through the end of the Performance Period.
5. Termination
of Employment
Notwithstanding
anything herein to the contrary, in the event you cease to be a full-time
employee of the Company for any reason prior to the end of the Performance
Period, you will not be entitled to any portion of your Award. In the
event you cease to be a full-time employee of the Company after the end of the
Performance Period, but prior to the payment of the Award, you (or your estate,
as applicable) will be paid the Award at the time it is paid to other Award
recipients; provided, however, that if your employment was terminated by the
Company for Cause you will not be entitled to any portion of your
Award.
For
purposes of this Letter, “Cause”
shall be determined by the Committee in the exercise of its good faith judgment,
in accordance with the following guidelines: (i) your willful misconduct or
gross negligence in the performance of your obligations, duties and
responsibilities in the position at the Company that you held as of the
termination of your employment by the Company, including those as an employee of
the Company set forth in the Company’s Code of Business Conduct and Ethics dated
June 1, 2006, as same may be amended from time to time provided such amendment
affects all executive officers of the Company, (ii) your dishonesty or
misappropriation, in either case that is willful and material, relating to the
Company or any of its funds, properties, or other assets, (iii) your inexcusable
repeated or prolonged absence from work (other than as a result of, or in
connection with, a Disability), (iv) any unauthorized disclosure by you of
Confidential Information or proprietary information of the Company in violation
of Section 6(d) which is reasonably likely to result in material harm to the
Company, (v) your conviction of a felony (including entry of a guilty or nolo
contender plea) involving fraud, dishonesty, or moral turpitude, (vi) a
violation of federal or state securities laws, or (vii) the failure by you to
attempt to perform faithfully your duties and responsibilities to the Company in
the position in which you are employed at the time of the termination of your
employment by the Company, or other material breach by you of this Letter,
provided any such failure or breach described in clauses (i), (ii), (iii), (iv),
(vi) and (vii) is not cured, to the extent cure is possible, by you within
thirty (30) days after written notice thereof from the Company to you; provided,
however, that no failure or breach described in clauses (i), (ii), (iii), (iv),
(vi) and (vii) shall constitute Cause unless (x) the Company first gives you
written notice of its intention to terminate your employment for Cause and the
grounds of such termination no fewer than ten (10) days prior to the date of
termination; and (y) you are provided an opportunity to appear before the Board,
with or without legal representation at your election to present arguments on
your own behalf and (z) if you elect to so appear, such failure or breach is not
cured, to the extent cure is possible, within thirty (30) days after written
notice from the Company to you that, following such appearance, the Board has
determined in good faith that Cause exists and has not, following the initial
notice from the Company, been cured; provided further, however, that
notwithstanding anything to the contrary in this Letter and subject to the other
terms of this proviso, the Company may take any and all actions, including
without limitation suspension (but not without pay), it deems appropriate with
respect to you and your duties at the Company pending such appearance and
subsequent to such appearance during which such failure or breach has not been
cured. No act or failure to act on your part will be considered “willful” unless
done, or omitted to be done, by you not in good faith and without reasonable
belief that your action or omission was in the best interests of the
Company.
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CONFIDENTIAL
6. Restrictive
Covenants
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a.
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Non-Solicitation
of Employees
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You agree
that, during your employment by the Company or any subsidiary and through the
end of two (2) years after your cessation of employment with the Company or any
subsidiary, you will not solicit for employment or hire, in any business
enterprise or activity, any employee of the Company or any subsidiary who was
employed by the Company or a subsidiary during your period of employment by the
Company or a subsidiary provided that (a) the foregoing shall not be violated by
any general advertising not targeted at Company or subsidiary employees nor by
you serving as a reference upon request, and (b) you may solicit and hire former
employees of the Company or its subsidiaries who had ceased being such employees
for a period of at least six (6) months prior to any such solicitation or
hiring.
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b.
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Non-Solicitation
of Clients and Vendors
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You agree
that, during your employment by the Company or any subsidiary and through the
end of two (2) years after your cessation of employment with the Company or any
subsidiary, you will not solicit, in any business enterprise or activity, any
client, customer, third-party service provider, or vendor of the Company or any
subsidiary who was such during your period of employment by the Company or a
subsidiary to (i) cease being a client, customer, third-party provider or vendor
of the Company or any subsidiary or (ii) become a client, customer, third-party
provider or vendor of a Competing Business unless (without you having solicited
such person to cease such relationship) such person or entity ceased being a
client, customer, third-party provider or vendor of the Company or any
subsidiary for a period of at least six (6) months prior to such
solicitation.
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CONFIDENTIAL
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c.
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Non-Disparagement
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During
your employment by the Company or any subsidiary and indefinitely thereafter,
you shall not make, and the Company shall not authorize any of its employees to
make, any statements, written or oral, to any third party which disparage,
criticize, discredit or otherwise operate to the detriment of you (in the case
of statements made by the Company) or the Company, its present or former
officers, shareholders, directors and employees and their respective business
reputation and/or goodwill (in the case of statements made by you), provided,
however, that nothing in this Section 6(c) shall prohibit either party from (i)
making any truthful statements or disclosures required by applicable law
regulation or (ii) taking any action to enforce its rights under this Letter or
any other agreement in effect between the parties.
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d.
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Confidentiality
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1)
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During
your employment by the Company or any subsidiary and indefinitely
thereafter, you shall keep secret and retain in strictest confidence, any
and all Confidential Information relating to the Company, except where
your disclosure or use of such Confidential Information is in furtherance
of the performance by you of your duties to the Company and not for
personal benefit or the benefit of any interest adverse to the Company’s
interests. For purposes of this Letter, “Confidential
Information” shall mean any information including without
limitation plans, specifications, models, samples, data, customer lists
and customer information, computer programs and documentation, and other
technical and/or business information, in whatever form, tangible or
intangible, that can be communicated by whatever means available at such
time, that relates to the Company’s current business or future business
contemplated during your employment, products, services and development,
or information received from others that the Company is obligated to treat
as confidential or proprietary (provided that such confidential
information shall not include any information that (a) has become
generally available to the public or is generally known in the relevant
trade or industry other than as a result of an improper disclosure by you,
or (b) was available to or became known to you prior to the disclosure of
such information on a non-confidential basis without breach of any duty of
confidentiality to the Company), and you shall not disclose such
confidential information to any Person (as defined below) other than the
Company, except with the prior written consent of the Company, as may be
required by law or court or administrative order (in which event you shall
so notify the Company as promptly as practicable), or in performance of
your duties on behalf of the Company. Further, this Section 6(d) shall not
prevent you from disclosing Confidential Information in connection with
any litigation, arbitration or mediation to enforce this Letter or other
agreement between the parties, provided such disclosure is necessary for
you to assert any claim or defense in such
proceeding.
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CONFIDENTIAL
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For
purposes of this Letter, “Person”
shall mean an individual, corporation, partnership, limited liability
company, limited liability partnership, association, trust or other
unincorporated organization or
entity.
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2)
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Upon
your termination of employment for any reason, you shall return to the
Company all copies, reproductions and summaries of Confidential
Information in your possession and use reasonable efforts to erase the
same from all media in your possession, and, if the Company so requests,
shall certify in writing that you have done so, except that you may retain
such copies, reproductions and summaries during any period of litigation,
arbitration or mediation referred to in Section 6(d)(1). All Confidential
Information is and shall remain the property of the Company (or, in the
case of information that the Company receives from a third party which it
is obligated to treat as confidential, then the property of such third
party); provided, you shall be entitled to retain copies of (i)
information showing your compensation or relating to reimbursement of
expenses, (ii) information that is required for the preparation of your
personal income tax return, (iii) documents provided to you in your
capacity as a participant in any employee benefit plan, policy or program
of the Company and (iv) this Letter and any other agreement by and between
you and the Company with regard to your employment or termination
thereof.
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3)
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All
Intellectual Property (as hereinafter defined) and Technology (as
hereinafter defined) created, developed, obtained or conceived of by you
during your employment, and all business opportunities presented to you
during your employment, shall be owned by and belong exclusively to the
Company, provided that they reasonably relate to any of the business of
the Company on the date of such creation, development, obtaining or
conception, and you shall (i) promptly disclose any such Intellectual
Property, Technology or business opportunity to the Company, and (ii)
execute and deliver to the Company, without additional compensation, such
instruments as the Company may require from time to time to evidence its
ownership of any such Intellectual Property, Technology or business
opportunity. For purposes of this Letter, (x) the term “Intellectual
Property” means and includes any and all trademarks, trade names,
service marks, service names, patents, copyrights, and applications
therefor, and (y) the term “Technology”
means and includes any and all trade secrets, proprietary information,
invention, discoveries, know-how, formulae, processes and
procedures.
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The
parties acknowledge that the restrictions contained in this Section 6 are a
reasonable and necessary protection of the immediate interests of the Company,
and any violation of these restrictions could cause substantial injury to the
Company and that the Company would not have entered into this Letter, without
receiving the additional consideration offered by you in binding yourself to any
of these restrictions. In the event of a breach or threatened breach by you of
any of these restrictions, the Company shall be entitled to apply to any court
of competent jurisdiction for an injunction restraining you from such breach or
threatened breach; provided, however, that the right to apply for an injunction
shall not be construed as prohibiting the Company from pursuing any other
available remedies for such breach or threatened breach.
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CONFIDENTIAL
7. Income
Tax Withholding
You will
be required to pay, pursuant to such arrangements as the Company may establish
from time to time, any applicable federal, state and local withholding tax
liability at the time that the value of the Award becomes includable in your
income.
8. No
Guarantee of Continuation of Employment
This
Award does not constitute an assurance of continued employment for any period or
in any way interfere with the Company’s right to terminate your
employment.
9. Administration
The
Committee has the sole power to exercise its good faith judgment to interpret
the Plan and this Letter and to act upon all matters relating to this Award. Any
decision, determination, interpretation, or other action taken pursuant to the
provisions of the Plan and this Letter by the Committee shall be final, binding,
and conclusive.
10. Amendment
The
Committee may from time to time amend the terms of this Award in accordance with
the terms of the Plan in effect at the time of such amendment, but no amendment
that is unfavorable to you can be made without your written
consent.
The Plan
is of unlimited duration, but may be amended, terminated or discontinued by the
Board of Directors of the Company at any time. However, no amendment,
termination or discontinuance of the Plan that would affect your Award in a
manner unfavorable to you will be made without your written
consent.
Notwithstanding
the foregoing provisions of this Section 10, the Committee expressly reserves
the right to amend
the terms of the Plan and this Award without your consent to the extent it
determines that such amendment is necessary or desirable for an exemption from
or compliance with the distribution, acceleration and/or election requirements
of Section 409A of the Internal Revenue Code of 1986, as amended or any
regulations or Treasury guidance promulgated thereunder.
11. Miscellaneous
This
Award may not be sold, transferred, pledged, assigned, or otherwise alienated or
hypothecated, other than by will or by the laws of descent and distribution, and
any attempted sale, transfer, pledge, assignment, participation, or other
alienation or hypothecation in violation of the foregoing shall be null and
void. This Letter shall be binding upon and inure to the benefit of
the Company and any successor organization which shall succeed to the Company by
merger or consolidation or operation of law, or by acquisition of all or
substantially all of the assets of the Company.
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CONFIDENTIAL
Amounts
payable pursuant to this Award will be paid solely from the general assets of
the Company, and your rights hereunder will be no greater than those of an
unsecured general creditor of the Company.
This
Letter and the applicable provisions of the Plan constitute the entire
agreement, and supersede all prior agreements and understandings, oral and
written, between the parties hereto with respect to, this Award.
Unless
otherwise provided herein, any notice, exercise of rights or other communication
required or permitted to be given hereunder shall be in writing and shall be
given by overnight delivery service such as Federal Express or personal delivery
against receipt, or mailed by registered or certified mail (return receipt
requested), to the party to whom it is given at, in the case of the Company,
Compensation Committee Chair, XxxXxxxxx.xxx, Inc., 00 Xxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, XX 00000, or, in the case of you, at your principal residence address
as then reflected on the records of the Company or such other address as such
party may hereafter specify by notice to the other party hereto. Any notice or
other communication shall be deemed to have been given as of the date so
personally delivered or transmitted by telecopy or like transmission or on the
next business day after sent by overnight delivery service for next business day
delivery or on the fifth business day after sent by registered or certified
mail.
The
Company hereby represents and warrants that the execution and delivery of this
Letter and the performance by the Company of its obligations hereunder have been
duly authorized by all necessary corporate action of the Company.
This
Letter shall be governed by and construed in accordance with the internal laws
of the State of New York applicable to contracts to be performed wholly within
the state and without regard to its conflict of laws provisions that would defer
to the laws of another jurisdiction, except to the extent the laws of the State
of Delaware mandatorily govern. The parties hereto each hereby
irrevocably submits to the exclusive jurisdiction of any New York State or
Federal court sitting in the Borough of Manhattan, City of New York in any
action, suit or proceeding to enforce the provisions of this Letter, and waives
the defense of inconvenient forum to the maintenance of any such action, suit or
proceeding. EACH PARTY HEREBY IRREVOCABLY WAIVES THE RIGHT TO A TRIAL
BY JURY IN CONNECTION WITH ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR IN
RELATION TO THIS LETTER OR THE AWARD.
If any
provision of this Letter shall for any reason be held invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions hereof shall not be affected or impaired thereby. Moreover, if any
one or more of the provisions of this Letter shall be held to be excessively
broad as to duration, activity or subject, such provisions shall be construed by
limiting and reducing them so as to be enforceable to the maximum extent
allowable by applicable law. To the extent permitted by applicable law, each
party hereto waives any provision of law that renders any provision of this
Letter invalid, illegal or unenforceable in any way.
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CONFIDENTIAL
This
Letter may be executed in one or more counterparts, each of which shall be
deemed to be an original and all of which shall constitute one and the same
instrument. Signatures may be delivered via facsimile or
electronically in PDF format and signatures delivered in such manner shall be
deemed originals for all purposes.
The
existence and terms of this Letter are deemed to be Confidential Information of
the Company and you are required to comply with the provisions of Section 6(d)
with respect to this information.
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CONFIDENTIAL
Titles
and headings to Sections herein are for purposes of reference only, and shall in
no way limit, define or otherwise affect the meaning or interpretation of any of
the provisions of this Letter.
_____________________
This
Letter contains the formal terms and conditions of your Award and accordingly
should be retained in your files for future reference.
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Very
truly yours,
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XXXXXXXXX.XXX,
INC.
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By:
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Xxxxx
Xxxx
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Chief
Executive Officer
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AGREED
TO AND ACCEPTED:
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[Name]
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CONFIDENTIAL
SCHEDULE
A
Performance
Period: [specify period]
Performance
Objectives: [specify objectives for period]
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