Exhibit 10(b)
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of April 25, 2000 by and between Resumix, Inc., a
Delaware corporation (the "Company") and [name] ("Executive").
RECITALS
In order to induce Executive to serve as the [job title] of the
Company, the Company desires to provide Executive with compensation and other
benefits on the terms and conditions set forth in this Agreement.
Executive is willing to accept such employment and perform services for
the Company, on the terms and conditions hereinafter set forth. It is therefore
hereby agreed by and between the parties as follows:
1. EMPLOYMENT.
1.1 Subject to the terms and conditions of this Agreement (including
Section 2), the Company agrees to employ Executive during the term hereof as its
[job title]. In [his/her] capacity as [job title] of the Company, Executive
shall report to the [superior]1 and shall have the powers, responsibilities and
authorities as are assigned by the [superior] from time to time.
1.2 Subject to the terms and conditions of this Agreement, Executive
hereby accepts employment as the [job title] of the Company commencing on the
Effective Date (as defined below), and agrees to devote [his/her] full working
time and efforts, to the best of [his/her] ability, experience and talent, to
the performance of services, duties and responsibilities in
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1 The Board of Directors for a CEO
connection therewith. Executive shall perform such duties and exercise such
powers, commensurate with [his/her] position as the [job title] of the Company,
as the [superior] shall from time to time delegate to [him/her] on such terms
and conditions and subject to such restrictions as such [superior] may
reasonably from time to time impose.
1.3 Nothing in this Agreement shall preclude Executive from engaging,
so long as, in the reasonable determination of the Board, such activities do not
interfere with [his/her] duties and responsibilities hereunder, in charitable
and community affairs, from managing any passive investment made by [him/her] in
publicly traded equity securities or other property (provided that no such
investment may exceed 1% of the equity of any entity, without the prior approval
of the Board) or from serving, subject to the prior approval of the Board, as a
member of boards of directors or as a trustee of any other corporation,
association or entity. For purposes of the preceding sentence, any approval of
the Board required therein shall not be unreasonably withheld.
2. TERM OF EMPLOYMENT. This Agreement shall only become effective on
the date on which the merger contemplated by the Agreement and Plan of Merger
dated as of April 25, 2000 by and among XxxXxxx.xxx, Ltd. ("HJL"), Resumix
Acquisition Corp., the Company and the stockholders of the Company who are
signatories thereto (the "Merger Agreement") is consummated (the "Effective
Date"). If the Merger Agreement is terminated prior to such date, this Agreement
shall terminate and be void and of no further force or effect. Executive's term
of employment under this Agreement shall commence on the Effective Date and,
subject to the terms hereof, shall terminate on the earlier of (i) the third
anniversary of the Effective Date (the "Termination Date") or (ii) the
termination of Executive's employment pursuant to this
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Agreement (the period from the Effective Date until the termination of this
Agreement shall be the "Term").
3. COMPENSATION.
3.1 SALARY. The Company shall pay Executive a base salary ("Base
Salary") at the rate of $_____ per annum during the Term. Base Salary shall be
payable in accordance with the ordinary payroll practices of the Company. Any
increase in Base Salary shall be in the sole discretion of the Board and, as so
increased, shall constitute "Base Salary" hereunder.
3.2 COMPENSATION PLANS AND PROGRAMS. Executive shall be eligible to
participate in any compensation plan or program maintained by HJL or the Company
and generally made available to other employees of HJL or the Company, on terms
comparable to those applicable to such other employees.
4. EMPLOYEE BENEFITS.
4.1 EMPLOYEE BENEFIT PROGRAMS, PLANS AND PRACTICES. The Company shall
provide Executive during the term of [his/her] employment hereunder with
coverage under all employee pension and welfare benefit programs, plans and
practices (commensurate with [his/her] position in the Company and to the extent
permitted under any employee benefit plan) in accordance with the terms thereof,
which HJL or the Company generally makes available to its employees.
4.2 VACATION. Executive shall be entitled to vacation, which shall be
taken at such times as are consistent with Executive's responsibilities
hereunder, in accordance with the Company's vacation policy.
5. EXPENSES. Executive is authorized to incur reasonable expenses in
carrying out [his/her] duties and responsibilities under this Agreement,
including, without limitation, expenses for travel and similar items related to
such duties and responsibilities. The Company
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will reimburse Executive for all such expenses upon presentation by Executive,
from time to time, of accounts of such expenditures (appropriately itemized and
approved consistent with the Company's policy).
6. TERMINATION OF EMPLOYMENT.
6.1 TERMINATION NOT FOR CAUSE OR FOR GOOD REASON. (a) The Company may
terminate Executive's employment at any time for any reason and the Executive
may terminate [his/her] employment with the Company for Good Reason (as defined
below). If Executive's employment is terminated (a) by the Executive for Good
Reason, or (b) by the Company other than (A) for Cause (as defined in Section
6.4 hereof) or (B) as a result of Executive's death or Permanent Disability (as
defined in Section 6.2 hereof) prior to the Termination Date, Executive shall
receive such payments, if any, under applicable plans or programs, including but
not limited to those referred to in Section 3.2 hereof, to which [s/he] is
entitled pursuant to the terms of such plans or programs. In addition, Executive
shall be entitled to receive an amount (the "Termination Amount") in lieu of any
other compensation (other than the Vacation Payment and the Compensation Payment
referred to below), which Termination Amount shall be payable in twelve (12)
monthly installments at the beginning of each month following such termination
of employment pursuant to this Section 6.1. The Termination Amount shall consist
of the excess of (A) the lesser of (i) an amount equal to Executive's annual
Base Salary at the then current annual rate or (ii) an amount equal to the Base
Salary which Executive would have received over the remaining term of this
Agreement, over (B) any severance benefits to which Executive is or becomes
entitled under the Resumix, Inc. Change In Control Benefit Plan. In addition,
Executive shall be entitled to receive a cash lump sum payment in respect of
accrued but unused vacation days in accordance with the Company's vacation
policy (the "Vacation Payment") and
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to Base Salary earned but not yet paid (the "Compensation Payment") in
connection with a termination of employment pursuant to this Section 6.1.
(b) The Vacation Payment and the Compensation Payment shall be
paid by the Company to Executive within five (5) days after the termination of
Executive's employment pursuant to this Section 6.1 by check payable to the
order of Executive or by wire transfer to an account specified by Executive.
(c) As used herein, the term "Good Reason" shall be limited to (i)
the requirement that the Executive perform [his/her] duties under this Agreement
outside of the San Francisco/Palo Alto/Silicon Valley area (not including
reasonable travel required in connection with the performance and discharge of
such duties), (ii) a material diminution of the Executive's duties from those
described in Section 1.1, after notice of any such diminution was given to the
Company and a reasonable opportunity to cure such diminution, and (iii) a
material breach of this Agreement by the Company after notice of any such breach
was given to the Company and a reasonable opportunity to cure such breach.
6.2 PERMANENT DISABILITY. If the Executive becomes disabled (as defined
in the Company's Long-Term Disability Benefit Plan applicable to senior
executive officers as in effect on the date hereof) ("Permanent Disability"),
the Company or Executive may terminate Executive's employment on written notice
thereof, and Executive shall receive or commence receiving, as soon as
practicable:
(i) amounts payable pursuant to the terms of a disability
insurance policy or similar arrangement which the Company maintains
during the term hereof;
(ii) the Vacation Payment and the Compensation Payment; and
(iii) such payments under applicable plans or programs, including
but not limited to those referred to in Section 3.2 hereof, to which
[s/he] is entitled pursuant to the terms of such plans or programs.
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6.3 DEATH. In the event of Executive's death during the term of
[his/her] employment hereunder, Executive's estate or designated beneficiaries
shall receive or commence receiving, as soon as practicable:
(i) any death benefits provided under the employee benefit
programs, plans and practices referred to in Section 4.1 hereof, in
accordance with their terms;
(ii) the Vacation Payment and the Compensation Payment; and
(iii) such payments under applicable plans or programs, including
but not limited to those referred to in Section 3.2 hereof, to which
Executive's estate or designated beneficiaries are entitled pursuant to
the terms of such plans or programs.
6.4 VOLUNTARY TERMINATION BY EXECUTIVE; DISCHARGE FOR CAUSE. (a) The
Company shall have the right to terminate the employment of Executive for Cause.
In the event that Executive's employment is terminated (i) by the Company for
Cause, as hereinafter defined, or (ii) by Executive other than for Good Reason
or as a result of the Executive's Permanent Disability or death, prior to the
Termination Date, Executive shall only be entitled to receive the Compensation
Payment and the Vacation Payment. After the termination of Executive's
employment under this Section 6.4, the obligations of the Company under this
Agreement to make any further payments, or provide any benefits specified
herein, to Executive shall thereupon cease and terminate.
(b) As used herein, the term "Cause" shall be limited to (i)
willful malfeasance or willful misconduct by Executive in connection with
[his/her] employment, (ii) continuing refusal by Executive to perform [his/her]
duties hereunder or any lawful direction of [superior] as required under Section
1.2, after notice of any such refusal to perform such duties or direction was
given to Executive and a reasonable opportunity to cure such breach, (iii) any
breach of the
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provisions of Section 12 of this Agreement by Executive or any other material
breach of this Agreement by Executive after notice of any such breach (other
than a breach of the provisions of Section 12 of this Agreement) and a
reasonable opportunity to cure such breach or (iv) the commission by Executive
of (A) any felony or (B) a misdemeanor involving moral turpitude.
7. MITIGATION OF DAMAGES. Executive shall not be required to mitigate
damages or the amount of any payment provided for under this Agreement by
seeking other employment or otherwise after the termination of [his/her]
employment hereunder.
8. NOTICES. All notices or communications hereunder shall be in
writing, addressed as follows:
To the Company:
Resumix, Inc.
000 Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Chief Executive Officer
with a copy to:
XxxXxxx.xxx, Ltd.
00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: General Counsel
To Executive:
Any such notice or communication shall be delivered by hand or by courier or
sent certified or registered mail, return receipt requested, postage prepaid,
addressed as above (or to such other
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address as such party may designate in a notice duly delivered as described
above), and the third business day after the actual date of mailing shall
constitute the time at which notice was given.
9. SEPARABILITY; LEGAL FEES. If any provision of this Agreement shall
be declared to be invalid or unenforceable, in whole or in part, such invalidity
or unenforceability shall not affect the remaining provisions hereof which shall
remain in full force and effect. Each party shall bear the costs of any legal
fees and other fees and expenses which may be incurred in respect of enforcing
its respective rights under this Agreement.
10. ASSIGNMENT. This contract shall be binding upon and inure to the
benefit of the heirs and representatives of Executive and the assigns and
successors of the Company, but neither this Agreement nor any rights or
obligations hereunder shall be assignable or otherwise subject to hypothecation
by Executive (except by will or by operation of the laws of intestate
succession) or by the Company, except that the Company may assign this Agreement
to any successor (whether by merger, purchase or otherwise) to all or
substantially all of the stock, assets or business of the Company, if such
successor expressly agrees to assume the obligations of the Company hereunder.
11. AMENDMENT. This Agreement may only be amended by written agreement
of the parties hereto.
12. NONDISCLOSURE OF CONFIDENTIAL INFORMATION; NON-DISPARAGEMENT;
NON-COMPETITION.
(a) Executive shall not, without the prior written consent of the
Company, use, divulge, disclose or make accessible to any other person, firm,
partnership, corporation or other entity any Confidential Information (as
defined below) pertaining to the business of the Company or any of its
affiliates, except (i) while employed by the Company, in the business of and for
the benefit of the Company, or (ii) when required to do so by a court of
competent
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jurisdiction, by any governmental agency having supervisory authority over the
business of the Company, or by any administrative body or legislative body
(including a committee thereof) with jurisdiction to order Executive to divulge,
disclose or make accessible such information. For purposes of this Section
12(a), "Confidential Information" shall mean non-public information concerning
the financial data, strategic business plans, product development (or other
proprietary product data), customer lists, marketing plans and other non-public,
proprietary and confidential information of the Company or its affiliates (the
"Restricted Group") or clients, customers, partners, prospective clients,
prospective customers, or prospective partners that, in any case, is not
otherwise available to the public (other than by Executive's breach of the terms
hereof).
(b) During the period of [his/her] employment hereunder and for a
period of one (1) year thereafter (including under the circumstances described
in paragraph (f) below), Executive agrees that, without the prior written
consent of the Company, (A) [s/he] will not, directly or indirectly, either as
principal, manager, agent, consultant, officer, stockholder, partner, investor,
lender or employee or in any other capacity, carry on, be engaged in or have any
financial interest in, any business which is in competition with any business of
the Restricted Group, and (B) [s/he] shall not, on [his/her] own behalf or on
behalf of any person, firm or company, directly or indirectly, solicit (other
than solicitations made by means of general solicitations of employment not
directed specifically to employee of the Restricted Group), offer employment to
or hire any person who has been employed by the Restricted Group at any time
during the 12 months immediately preceding such solicitation, and (C) [s/he]
shall not, on [his/her] own behalf or on behalf of any person, firm or company,
solicit, call upon, or otherwise communicate in any way, with any client,
customer, prospective client or prospective customer
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of the Company or of any member of the Restricted Group for the purpose of
causing or of attempting to cause any such person to purchase products sold or
services rendered by the Company or by any member of the Restricted Group from
any person other than the Company or such member of the Restricted Group.
(c) Each of the Company and Executive agrees that such party will
not, directly or indirectly, individually or in concert with others, engage in
any conduct or make any statement that (i) in the case of Executive, is likely
to have the effect of undermining or disparaging the reputation of the Company
or any member of the Restricted Group, or their good will, products, or business
opportunities, or that is likely to have the effect of undermining or
disparaging the reputation of any officer, director, agent, representative or
employee, past or present, of the Company or any member of the Restricted Group
of (ii) in the case of the Company, is likely to have the effect of undermining
or disparaging the reputation of the Executive.
(d) For purposes of this Section 12, a business shall be deemed to
be in competition with the Restricted Group if it is principally involved in the
purchase, sale or other dealing in any property or the rendering of any service
purchased, sold, dealt in or rendered by the Restricted Group as a material part
of the business of the Restricted Group within the same geographic area in which
the Restricted Group effects such purchases, sales or dealings or renders such
services. Nothing in this Section 12 shall be construed so as to preclude
Executive from investing in any publicly or privately held company, provided
Executive's beneficial ownership of any class of such company's securities does
not exceed 1% of the outstanding securities of such class.
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(e) Executive and the Company agree that this covenant not to
compete is a reasonable covenant under the circumstances, and further agree that
if in the opinion of any court of competent jurisdiction such restraint is not
reasonable in any respect, such court shall have the right, power and authority
to excise or modify such provision or provisions of this covenant as to the
court shall appear not reasonable and to enforce the remainder of the covenant
as so amended. Executive agrees that any breach of the covenants contained in
this Section 12 would irreparably injure the Company. Accordingly, Executive
agrees that the Company may, in addition to pursuing any other remedies it may
have in law or in equity, cease making any payments otherwise required by this
Agreement and obtain an injunction against Executive from any court having
jurisdiction over the matter restraining any further violation of this Agreement
by Executive.
(f) If the Executive is still employed with the Company on the
Termination Date, and if within the sixty (60) day period prior to the
Termination Date the Company has offered the Executive a substantially similar
contract with a one (1) year term where the Base Salary is increased at a rate
equal to the percentage increase in the Consumer Price Index for the
metropolitan area in which the Company has its headquarters as reported by the
United States Department of Labor for the immediately preceding calendar year,
but the Executive has elected not to accept such contract, then the provisions
of this Section 12 shall continue to apply until the first anniversary of the
Termination Date. In the event that the Executive is still employed on the
Termination Date and the Company has not offered the Executive a substantially
similar contract meeting the provisions of the preceding sentence, then the
provisions of Section 12(b) of this Agreement shall terminate on the Termination
Date. In either case, the remaining provisions of this Section 12 shall continue
to apply for so long as is necessary to give effect thereto.
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13. BENEFICIARIES; REFERENCES. Executive shall be entitled to select
(and change, to the extent permitted under any applicable law) a beneficiary or
beneficiaries to receive any compensation or benefit payable hereunder following
Executive's death, and may change such election, in either case by giving the
Company written notice thereof. In the event of Executive's death or a judicial
determination of [his/her] incompetence, reference in this Agreement to
Executive shall be deemed, where appropriate, to refer to [his/her] beneficiary,
estate or other legal representative. Any reference to the masculine gender in
this Agreement shall include, where appropriate, the feminine.
14. SURVIVORSHIP. The respective rights and obligations of the parties
hereunder shall survive any termination of this Agreement to the extent
necessary to the intended preservation of such rights and obligations. In
particular, the provisions of Section 12 hereunder shall remain in effect as
long as is necessary to give effect thereto.
15. GOVERNING LAW. This Agreement shall be construed, interpreted and
governed in accordance with the laws of the State of New York, without reference
to rules relating to conflicts of law.
16. EFFECT ON PRIOR AGREEMENTS. This Agreement contains the entire
understanding between the parties hereto and supersedes in all respects any
prior or other agreement or understanding between the Company or any affiliate
of the Company and Executive. However, the Resumix, Inc. Change In Control
Benefit Plan will continue to apply, and will reduce any severance benefits
payable under this Agreement. Under no circumstances shall Executive be entitled
to any other severance payments or benefits of any kind, except for the payments
and benefits described herein.
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17. WITHHOLDING. The Company shall be entitled to withhold from payment
any amount of withholding required by law.
18. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original.
[Company's name]
By Date:
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Name:
Title:
Date:
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[Executive's name]
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