April 1, 1999
Xx. Xxxxxxx X. Xxxx
0000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Dear Rich:
We are pleased to extend a formal offer of employment to you. This
letter, when signed by you, shall constitute our agreement (this "Agreement")
with respect to the terms and conditions of your employment with Caribiner
International, Inc. (the "Company").
1. Position: You shall be hired to fill the position of
Executive Vice President - Human Resources of the Company. In the
performance of your duties, you will report to the Chief Executive
Officer of the Company. Your duties and responsibilities shall be
designated to you, from time to time, by the Chief Executive Officer or
the Board of Directors of the Company (the "Board"). You will be based
in the Company's New York City offices.
2. Compensation:
(a) You will receive a base salary of $250,000.00 per
annum, which will be payable in bi-weekly
installments or otherwise in accordance with the
Company's policies. Your performance and base salary
will be reviewed annually, and may, in the discretion
of senior management and the Board, be increased
following such review.
(b) In addition to your base salary, you will be
eligible to receive an annual bonus (the "Bonus"),
payable on or about December 15 of each year
(commencing December 15, 1999) at the Group A level
bonus pursuant the Company's Annual Performance Plan
(or such equivalent level pursuant to any other bonus
compensation plan then in effect by the Company in
replacement of such plan) as in effect for the fiscal
year ended immediately prior to the fiscal year in
which such Bonus is actually paid. Your guaranteed
Bonus in respect of the Company's fiscal year ended
September 30, 1999 (payable on approximately December
15, 1999) shall be no less than $125,000.
3. Benefits: (a) You will be entitled to participate in the
Company's hospitalization, medical, dental and vision insurance plans,
as well as long-term and short-term disability and life insurance
plans, on the same basis as other senior executive employees of the
Company in accordance with Company practices and subject in each case
to the terms and conditions of the applicable plan, which shall govern
your participation therein. You will also be entitled to participate in
the Company's 401(k) plan and any other similar plan or plans adopted
by the Company for similar employees and subject in each case to the
terms and conditions of the applicable plan, which shall govern your
participation therein.
(b) You willl be entitled to reimbursement for all
reasonable travel, entertainment and other reasonable
expenses incurred in connection with the Company's
business, provided that such expenses are adequately
documented and vouchered in accordance with the
Company's policies.
(c) You will be entitled to an automobile allowance
in the amount of $500 per month, payable in equal
installments during each payroll
Xx. Xxxxxxx X. Xxxx
April 1, 1999
Page 2
period, to defray all costs incurred by you in
connection with your use of your automobile in
connection with the business of the Company (except
for those which you are entitled to reimbursement
pursuant to Paragraph 3(b) hereof). In addition to
the foregoing, you will be entitled to reimbursement
for the reasonable parking charges incurred by you
for parking your automobile at or near the Company's
offices, provided such charges are adequately
documented and vouchered in accordance with the
Company's policies.
(d) You will be entitled to reimbursement for all
reasonable expenses incurred by you in connection
with the preparation of your 1999 income tax returns,
provided such expenses are adequately documented and
vouchered in accordance with the Company's policies.
4. Vacation: You will be entitled to four (4) weeks paid
vacation per year in accordance with the Company's policies, which
shall be in addition to all other holidays established as part of the
Company's standard practices.
5. Non-Competition. You hereby agree and covenant that
commencing as of the date hereof and for a period of two (2) years
following the termination of your employment with the Company (the
"Restricted Period") you will not directly or indirectly engage in or
become interested (whether as an owner, principal, agent, stockholder,
member, partner, trustee, venturer, lender or other investor, director,
officer, employee, consultant or through the agency of any corporation,
limited liability company, partnership, association or agent or
otherwise) in any business or enterprise that shall, at the time, be in
whole or in substantial part competitive with any material part of the
business conducted by the Company during the period of your employment
with the Company (except that ownership of not more than 1% of the
outstanding securities of any class of any entity that are listed on a
national securities exchange or traded in the over-the-counter market
shall not be considered a breach of this Paragraph 5).
6. Non-Solicitation: You hereby agree and covenant that for
the Restricted Period you shall not (without first obtaining the
written permission of the Company), directly or indirectly, (i)
participate in the solicitation of any business of any type conducted
by the Company during the period of your employment with the Company
from any person or entity which was a client or customer of the Company
during the period of your employment with the Company, or was a
prospective customer of the Company from which you (or employees under
your supervision) solicited business or for which a proposal for
submission was prepared during the period of your employment with the
Company or (ii) recruit for employment, or induce or seek to cause such
person to terminate his or her employment with the Company, any person
who then is an employee of the Company.
7. Confidential Matters: During and after the Restricted
Period, you shall keep secret all confidential matters of the Company
and its affiliates, including but not to limited to trade "know-how,"
secrets, consultant contracts, customer lists, operational methods,
marketing plans or strategies, business acquisition plans, new
personnel and other business affairs of the Company and its affiliates
learned by you heretofore or hereafter, and shall not disclose them to
anyone outside of the Company during and after the Restricted Period
except (i) with the Company's written consent, (ii) as required by law
or (iii) as required to enforce or construe this
Xx. Xxxxxxx X. Xxxx
April 1, 1999
Page 3
Agreement to the extent reasonable and necessary. You shall deliver
promptly to the Company upon termination of your employment, or any
time the Company may request, all confidential memoranda, notes,
records, reports and other documents (and all copies thereof) relating
to the business of the Company which you may then possess or have under
your control; provided, that, you may retain copies of documents to the
extent reasonably needed to protect or enforce your rights hereunder.
8. Specific Performance; Damages: In the event of a breach or
threatened breach of the provisions of Paragraphs 5, 6 or 7 hereof, you
agree that the injury which would be suffered by the Company would be
of a character which could not be fully compensated for solely by a
recovery of monetary damages. Accordingly, you agree that in the event
of a breach or threatened breach of Paragraphs 5, 6 or 7 hereof, in
addition to and not in lieu of any damages sustained by the Company and
any other remedies which the Company may pursue hereunder or under any
applicable law, the Company shall have the right to equitable relief,
including issuance of a temporary or permanent injunction, by any court
of competent jurisdiction against the commission or continuance of any
such breach or threatened breach, without the necessity of proving any
actual damages or posting of any bond or other surety therefor. In
addition to, and not in limitation of the foregoing, you understand and
confirm that, in the event of a breach or threatened breach of
Paragraphs 5, 6 or 7 hereof, you may be held financially liable to the
Company for any loss suffered by the Company as a result.
9. Severance. If you are discharged within three (3) years
from the date hereof without Cause (as hereinafter defined) or by
reason other than because of your death, or if you resign because of a
Change of Control (as hereinafter defined) of the Company or for Good
Reason (as hereinafter defined), the Company shall pay to you (i) for a
period of one (1) year, the Base Salary provided for in Paragraph 2
hereof as such sums become due (or, at the Company's election, in a
lump sum giving effect to the present value of such payments); and (ii)
the Bonus in respect only of the fiscal year of the Company in which
such termination occurs (prorated by reference to the number of days in
such fiscal year actually worked by you and by reference to the Bonus
target). For purposes of this Agreement, the terms "Cause" and "Change
of Control" shall have the meanings given to such terms in the
Company's 1996 Stock Option Plan, as amended. For purposes of this
Agreement, the term "Good Reason" shall mean that Xxxxxxxxxxx X.
Xxxxxxxx shall cease for any reason to be the most senior executive
officer of the Company.
10. Indemnification. Subject to the succeeding sentence, the
Company shall indemnify, defend and hold you harmless from and against
all losses, claims, damages, liabilities, judgments, fines, penalties,
assessments and costs and expenses incurred (including, without
limitation, reasonable attorneys' fees and disbursements) arising prior
to, on or after the date hereof from your performance of your services
pursuant to this Agreement. Notwithstanding the foregoing, you shall
not be entitled to indemnification pursuant to this Paragraph 10 if a
Court of competent jurisdiction or an administrative body or agency
determines that, in connection with any matter giving rise to
indemnification, you acted in bad faith or dishonestly, or committed an
act for illegal personal gain, except as directed by the Board or a
superior officer (if any), and you did not have any reasonable cause to
believe that you violated any material law, committed an act of wanton
or willful misconduct or gross negligence or that you acted in a manner
beyond the authorized
Xx. Xxxxxxx X. Xxxx
April 1, 1999
Page 4
scope of your duties to be performed pursuant to this Agreement. You
will be afforded the same coverage under any director's and officer's
liability insurance policy maintained by the Company, from time to
time, as the other senior executive officers of the Company are
provided.
11. Preservation of Intent: Should any provision of this
Agreement be determined by a court having jurisdiction in the premises
to be illegal or in conflict with any laws of any state or jurisdiction
or otherwise unenforceable, you and the Company agree that such
provision shall be modified to the extent legally possible so that the
intent of this Agreement may be legally carried out and such provision
shall be enforced to the maximum extent.
12. Entire Agreement: This Agreement sets forth the entire and
only agreement or understanding between the parties relating to the
subject matter hereof and supersedes and cancels all previous
agreements, negotiations, correspondence, commitments and
representations in respect thereof among them.
13. Governing Law. This Agreement shall be governed by,
construed and enforced in accordance with the internal laws of the
State of New York.
14. Employment: Notwithstanding anything contained herein to
the contrary and, subject to the Company's obligations contained
herein, you acknowledge that you shall be hired as an "employee
at-will" and that as such, your employment with the Company may be
terminated at any time for any reason or no reason whatsoever, and this
Agreement does not constitute a commitment of the Company with respect
to your employment, express or implied.
If the foregoing correctly sets forth our understanding,
please sign and return the duplicate copy of this letter which is
enclosed herewith.
Very truly yours,
CARIBINER INTERNATIONAL, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxxxxxx X. Xxxxxxxx
President and Chief Executive Officer
AGREED AND ACCEPTED AS OF
THE 1st DAY OF APRIL, 1999.
/s/ Xxxxxxx X. Xxxx
--------------------------------
Xxxxxxx X. Xxxx
