EXHIBIT 10.2: Employment Agreement between Registrant and Xxxxxx Xxxxxxx.
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of December 3, 1999, is between EarthWeb Inc., a
Delaware corporation ("Company"), with its principal place of business at 0
Xxxx Xxxxxx, Xxx Xxxx, XX, and Xxxxxx Xxxxxxx ("Employee").
In consideration of Employee's employment with Company, Employee hereby
agrees to be bound by and comply with the following terms and conditions of
employment:
Section 1. At-Will Employment. Employee acknowledges and agrees that his/her
employment status is that of an employee-at-will and that Employee's
employment may be terminated by Company or Employee at any time with or
without cause.
Section 2. Compensation. In consideration of the services to be rendered
hereunder, Employee shall be paid in accordance with the attached offer
letter.
Section 3. Employee Inventions and Ideas.
(a) Employee will maintain current and adequate written records on the
development of, and disclose to Company, all Inventions (as herein defined).
"Inventions" shall mean all ideas, potential marketing and sales
relationships, inventions, copyrightable expression, research, plans for
products or services, marketing plans, computer software (including, without
limitation, source code), computer programs, original works of authorship,
characters, know-how, trade secrets, information, data, developments,
discoveries, improvements, modifications, technology, algorithms and designs,
whether or not subject to patent or copyright protection, made, conceived,
expressed, developed, or actually or constructively reduced to practice by
Employee solely or jointly with others during the term of Employee's
employment with Company, which refer to, are suggested by, or result from any
work which Employee may do during his employment, or from any information
obtained from Company or any affiliate of Company.
(b) The Inventions shall be the exclusive property of Company, and Employee
acknowledges that all of said Inventions shall be considered as "work made for
hire" belonging to Company. To the extent that any such Inventions, under
applicable law, may not be considered work made for hire by Employee for
Company, Employee hereby agrees to assign and, upon its creation,
automatically and irrevocably assigns to Company, without any further
consideration, all right, title and interest in and to such materials,
including, without limitation, any copyright, other intellectual property
rights, moral rights, all contract and licensing rights, and all claims and
causes of action of any kind with respect to such materials. Company shall
have the exclusive right to use the Inventions, whether original or
derivative, for all purposes without additional compensation to Employee. At
Company's expense, Employee will assist Company in every proper way to perfect
Company's rights in the Inventions and to protect the Inventions throughout
the world, including, without limitation, executing in favor of Company or any
designee(s) of Company patent, copyright, and other applications and
assignments relating to the Inventions. Employee agrees not to challenge the
validity of the ownership by Company or its designee(s) in the Inventions.
(c) Should Company be unable to secure Employee's signature on any document
necessary to apply for, prosecute, obtain, or enforce any patent, copyright,
or other right or protection relating to any Invention, whether due to
Employee's mental or physical incapacity or any other cause, Employee hereby
irrevocably designates and appoints Company and each of its duly authorized
officers and agents as Employee's agent and attorney in fact, to act for and
in Employee's behalf and stead and to execute and file any such document, and
to do all other lawfully permitted acts to further the prosecution, issuance,
and enforcement of patents, copyrights, or other rights or protections with
the same force and effect as if executed and delivered by Employee.
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Section 4. Proprietary Information.
(a) Employee will not disclose or use, at any time either during or after
the term of employment, except at the request of Company or an affiliate of
Company, any Confidential Information (as herein defined). "Confidential
Information" shall mean all Company proprietary information, technical data,
trade secrets, and know-how, including, without limitation, research, product
plans, customer lists, customer preferences, marketing plans and strategies,
software, developments, inventions, discoveries, processes, ideas, formulas,
algorithms, technology, designs, drawings, business strategies and financial
data and information, including but not limited to Inventions, whether or not
marked as "Confidential." "Confidential Information" shall also mean any and
all information received by Company from customers, vendors and independent
contractors of Company or other third parties subject to a duty to be kept
confidential.
(b) Employee hereby acknowledges and agrees that all personal property,
including, without limitation, all books, manuals, records, reports,
Convertible Notes, contracts, lists, blueprints, and other documents, or
materials, or copies thereof, Confidential Information as defined in Section
4(a) above, and equipment furnished to or prepared by Employee in the course
of or incident to his employment, including, without limitation, records and
any other materials pertaining to Inventions, belong to Company and shall be
promptly returned to Company upon termination of employment. Following
termination, Employee will not retain any written or other tangible or
electronic material containing any Confidential Information or information
pertaining to any Invention.
Section 5. Limited Agreement Not to Compete.
(a) While employed by Company and for a period of twelve (12) months after
the termination of Employee's employment with Company, Employee shall not,
directly or indirectly, as an employee, employer, consultant, agent,
principal, partner, manager, stockholder, officer, director, or in any other
individual or representative capacity, engage, participate or in any way
render services or assistance to any business that is competitive with the
business of Company. Employee acknowledges that Company's business is
conducted over the World Wide Web and for that reason this restriction cannot
be limited in geographic scope. Notwithstanding the foregoing, Employee may
own less than two percent (2%) of any class of stock or security of any
corporation which competes with Company listed on a national securities
exchange.
(b) While employed by Company and for a period of twelve (12) months after
the termination of Employee's employment with Company, Employee shall not,
directly or indirectly, solicit for employment or employ any person who was
employed by Company at the time of Employee's termination from Company.
Section 6. Company Resources. Employee may not use any Company equipment for
personal purposes without written permission from Company. Employee may not
give access to Company's offices or files to any person not in the employ of
Company without written permission of Company.
Section 7. Post-Termination Period. Because of the difficulty of
establishing when any idea, process or invention is first conceived or
developed by Employee, or whether it results from access to Confidential
Information or Company's equipment, facilities, and data, Employee agrees that
any idea, invention, research, plan for products or services, marketing plan,
computer software (including, without limitation, source code), computer
program, original work of authorship, character, know-how, trade secret,
information, data, developments, discoveries, technology, algorithm, design,
patent or copyright, or any improvement, rights, or claims related to the
foregoing, shall be presumed to be an Invention if it is conceived, developed,
used, sold, exploited or reduced to practice by Employee or with the aid of
Employee within one (1) year after termination of employment. Employee can
rebut the above presumption if he/she proves that the idea, process or
invention (i) was first conceived or developed after termination of
employment, (ii) was conceived or developed entirely on Employee's own time
without using Company's equipment, supplies, facilities, personnel or
Confidential Information, and (iii) did not result from or is not derived
directly or indirectly, from any work performed by Employee for Company or
from work performed by another employee of the Company to which Employee had
access.
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Section 8. Injunctive Relief. Employee agrees that the remedy at law for any
breach of the provisions of Section 3, Section 4 or Section 5 of this
Agreement shall be inadequate, the Company will suffer immediate and
irreparable harm, and Company shall be entitled to injunctive relief in
addition to any other remedy at law which Company may have.
Section 9. Severability. In the event any of the provisions of this
Agreement shall be held by a court or other tribunal of competent jurisdiction
to be unenforceable, the other provisions of this Agreement shall remain in
full force and effect.
Section 10. Survival. Sections 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14
shall survive the termination of this Agreement.
Section 11. Representations and Warranties. Employee represents and warrants
that Employee is not under any obligations to any third party which could
interfere with Employee's performance under this Agreement, and that
Employee's performance of his obligations to Company during the term of his
employment with Company will not breach any agreement by which Employee is
bound not to disclose any proprietary information including, without
limitation, that of former employers.
Section 12. Governing Law. The validity, interpretation, enforceability, and
performance of this Agreement shall be governed by and construed in accordance
with the laws of the State of New York without giving effect to its conflict
of law rules.
Section 13. Dispute Resolution. Except as otherwise expressly provided for
herein, any dispute relating to or arising out of Employee's employment at
Company, which cannot be resolved by negotiation, shall be settled by a single
arbitrator pursuant to a binding arbitration in accordance with the AAA
Employment Dispute Arbitration Rules and Procedures, as amended by this
Agreement. Employment disputes include, but are not limited to, all claims,
demands or actions under Title VII of the Civil Rights Act of 1964, Civil
Rights Act or 1966, Civil Rights Act of 1991 and all amendments to the
aforementioned, and any other federal, state, or local statute or regulation
or common law regarding employment discrimination or the termination of
employment. The costs of arbitration, including the fees and expenses of the
arbitrator, shall be shared equally by the parties. Each party shall bear the
cost of preparing and presenting its case. The arbitration shall take place in
the County of New York, in the State of New York. The arbitration shall be
conducted in strict confidence. The arbitrator shall not make any award that
provides for punitive or exemplary damages. The arbitrator's decision shall be
based upon the substantive laws of the State of New York. The arbitrator's
decision shall follow the plain meaning of the relevant documents, and shall
be final and binding. The award may be confirmed and enforced in any court of
competent jurisdiction. The parties hereby agree that any federal or state
court sitting in the County of New York in the State of New York is a court of
competent jurisdiction. The parties each expressly waive his/her/its right to
a jury trial. This paragraph does not limit the Company's right to seek
injunctive relief only in any state or federal court sitting in the County of
New York in the State of New York (jurisdictional, venue and inconvenient
forum objections to which are hereby waived by both parties) in the event that
a dispute relates to or arises under Sections 3, 4 or 5 of this Agreement
above and Employee agrees to pay Company reasonable costs and attorney's fees
in seeking to enforce this agreement through such injunctive relief.
Section 14. General. This Agreement supersedes and replaces any existing
agreement between Employee and Company relating generally to the same subject
matter, and may be modified only in a writing signed by the parties hereto.
Failure to enforce any provision of the Agreement shall not constitute a
waiver of any term herein. This Agreement contains the entire agreement
between the parties with respect to the subject matter herein. Employee agrees
that he/she will not assign, transfer, or otherwise dispose of, whether
voluntarily or involuntarily, or by operation of law, any rights or
obligations under this Agreement. Any purported assignment, transfer, or
disposition shall be null and void. Nothing in this Agreement shall prevent
the consolidation of Company with, or its merger into, any other corporation,
or the sale by Company of all or substantially all of its properties or
assets, or the assignment by Company of this Agreement and the performance of
its obligations hereunder. Subject to the foregoing, this Agreement shall be
binding upon and shall inure to the benefit of the parties and their
respective heirs, legal representatives, successors, and permitted assigns,
and shall not benefit any person or entity other than those enumerated.
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Section 15. Employee Acknowledgement. Employee acknowledges (i) that he/she
has consulted with or has had the opportunity to consult with independent
counsel of his own choice concerning this Agreement and has been advised to do
so by the Company, and (ii) that he/she has read and understands the
Agreement, is fully aware of its legal effect, and has entered into it freely
based on his own judgment.
AGREED TO BY:
_________________________________ _________________________________
EARTHWEB, INC. EMPLOYEE
By: _____________________________ By: _____________________________
Title: __________________________ Title: __________________________
Date: ___________________________ Date: ___________________________
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Addendum to Employment Agreement--Xxxxxx Xxxxxxx (Employee)
Severance
If EarthWeb terminates Employee's employment without "cause", EarthWeb will
provide to Employee severance in an amount equal to twelve (12 months) of the
employee's then current base pay, provided employee executes and delivers a
release in a form prepared by the company.
For the purpose of this section, "cause" is defined as: embezzlement;
misappropriation of funds; conviction of a felony or commission of any act
which would rise to the level of a felony; commission of other acts of
dishonesty, fraud or deceit; material breach of any provision of this
Agreement; habitual or willful neglect of duties; breach of fiduciary duty to
the Company involving personal profit; or significant violation of Company
policy or other contractual, statutory or common law duties to the Company.
Change in Control
In the event of a "Change of Control", employee shall be entitled, at his
option, to the severance benefits outlined above if he is terminated without
"cause". A "Change of Control" shall be defined as:
a. Sale of all or substantially all the assets of the company.
b. Complete merger with or acquisition of another company resulting in
which EarthWeb is not the surviving company.
AGREED TO BY:
_________________________________ _________________________________
EARTHWEB, INC. EMPLOYEE
By: _____________________________ By: _____________________________
Title: __________________________ Title: __________________________
Date: ___________________________ Date: ___________________________
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Letter of Employment Agreement--Xxxxxx Xxxxxxx
November 23, 1999
Dear Xxxxxx:
EarthWeb Inc. is pleased to offer you the position of Chief Technology
Officer. This letter and the attached EarthWeb Employment Agreement, together,
shall be considered our offer of employment. Following are the details:
1.) A starting annual salary of US $175,000
2.) Bonus Eligible--up to 25% of annual salary as per our 2000 Corporate
Bonus Plan
3.) Bonus Eligible--up to $40,000 annual MBO bonus based on performance
milestones to be determined.
4.) Upon date of hire you will be eligible to receive a stock option grant to
purchase 75,000 shares of common stock, pursuant to and in accordance
with the terms and conditions of EarthWeb's 1998 Stock Option Plan and
the option granting documents.
5.) Corporate Apartment--EarthWeb will provide up to $2,500 per month plus
utilities towards a corporate apartment in NY.
6.) Weekly commuting expense: EarthWeb will provide you vouchers for weekly
travel between NY and Washington, DC.
As was discussed during the interview process, EarthWeb offers its employees
and their eligible dependents a variety of group insurance benefits. Coverage
under these programs commences on the first day of the month following or
coinciding with the thirtieth day of employment. Information about these
programs and other company benefits and policies are contained in our Employee
Handbook and the Human Resource New Hire Packet. Copies will be provided to
you during an information session with the Human Resources department on or
shortly after your first day of employment.
Please advise me or our Human Resources Department of your decision by
December 4, 1999. Our offer is contingent upon successful completion of our
pre-employment screening process which includes:
. Execution of the enclosed employment agreement.
. Satisfactory references. Submission of 2 business and 1 personal
reference to be forwarded to the company or by telephone (212) 725-
6550.
. Confirmation of eligibility of employment (INS I-9) requiring you to
submit specific forms of identification within the first 3 days of
your employment. Please see attached for a listing of necessary
identification.
. Confirmation of the absence of any contractual impediments to
employment in the offered position.
We look forward to hearing from you in the near future and having you join the
EarthWeb team. In the meantime, if you have any questions about this offer or
the Company, please feel free to contact Xxxx Xxxxxx directly,
or me at (000) 000-0000.
Sincerely,
X
----------------------- -------------------------
Xxxx Xxxxxxx Xxxxxx Xxxxxxx
HR Director
Earthweb Inc.
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