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EXHIBIT 10.18
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated July 16, 2001 by and between CROSS MEDIA
MARKETING CORPORATION, a Delaware corporation ("Employer") and XXX XXXXXX
("Executive").
BACKGROUND
Employer desires to employ Executive on the terms and subject to the
conditions set forth in this Agreement, and Executive desires to be employed by
Employer on such terms and subject to such conditions.
NOW, THEREFORE, in consideration of the premises, the respective covenants
and commitments of the parties hereto set forth in this Agreement and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following capitalized
terms shall have the meanings respectively assigned to them below, which
meanings shall be applicable equally to the singular and plural forms of the
terms so defined.
"Board of Directors" shall mean the then current members of the Board of
Directors of Employer.
"Business Day" shall mean any day during which Employer is open for
business in New York City, other than any Saturday, Sunday or legal holiday.
"Cause" means failure to cure within a reasonable period of time any
willful misconduct or gross negligence in the performance by Executive of his
duties under this Agreement which results in material injury to Employer, or the
commission of any willful act which is materially inimical to the business or
interests of the Employer. No act or failure to act on Executive's part shall be
considered "willful" unless done, or omitted to be done, by him not in good
faith and without reasonable belief that his action or omission was in the best
interests of the Employer. Executive shall not be deemed to have been terminated
for Cause unless and until there shall have been delivered to him a notice of
intent to terminate providing a reasonable period to cure together with a copy
of a resolution, duly adopted by the Board of Directors at a meeting called and
held for that purpose (after reasonable notice to Executive of the meeting and
the particulars of the grounds for termination and an opportunity for him,
together with his counsel, to be heard before the Board of Directors), finding
that, in the good faith opinion of the Board of Directors based upon clear and
convincing evidence, Executive was guilty of conduct constituting Cause for
termination and specifying the particulars thereof in detail. Executive's
attendance or non-attendance at any such meeting of the Board of
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Directors shall in no way prejudice Executive's rights hereunder or to submit
such decision to judicial review.
"Change of Control" shall be deemed to have occurred if as the result of
any cash tender or exchange offer, merger or other business combination, sale of
assets, sale of stock or other ownership interests, or contested election, or
any combination of the foregoing transactions ("Transaction"), either (i) all or
any substantial part of the assets or business of Employer and its Subsidiaries
is transferred to any Person that is not a Subsidiary of Employer or (ii) the
individuals who were directors of Employer before the Transaction shall cease to
constitute a majority of the Board of Directors.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor thereto.
"Commencement Date" means July 16, 2001.
"Expenses" shall mean all expenses to be paid by Employer on behalf of
Executive or for which Executive is entitled to be reimbursed under Section 5
herein (including without limitation Sections 5.4 and 5.6).
"Good Reason" means (i) the relocation of Executive to an office outside a
50-mile radius of the City of Atlanta, Georgia or (ii) any request by Employer
that Executive perform acts that would subject Executive to criminal liability.
"MOS" shall mean Media Outsourcing, Inc., a Subsidiary of Employer.
"Options" shall mean stock options to purchase shares of Employer's common
stock.
"Person" means an individual, corporation, partnership, estate, limited
liability company, association, cooperative, joint venture, trust,
unincorporated organization, or a government or any agency, branch or political
subdivision thereof.
"Subsidiary" or "Subsidiaries" means any Person, 50% or more of the
outstanding voting power of which shall at the time be owned by Employer or by
one or more Subsidiaries, or any other Person, 50% or more of the equity of
which shall at the time be owned by Employer or by one or more Subsidiaries.
"TBC" means TBC Telemarketing, Inc., a Georgia corporation.
"Term" means the period from the Commencement Date through June 30, 2004.
"Year" means Year 2001, 2002, 2003, or 2004.
"Year 2001" means the period beginning on the Commencement Date and ending
December 31, 2001.
"Year 2002" means the twelve months ending December 31, 2002.
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"Year 2003" means the twelve months ending December 31, 2003.
"Year 2004" means the six months ending June 30, 2004.
2. Employment. Employer offers and Executive accepts employment and
agrees to perform services for Employer for the period and upon the other terms
and subject to the conditions set forth in this Agreement.
3. Employment Term. Unless terminated at an earlier date in accordance
with Section 8 below, the initial term of Executive's employment hereunder shall
commence on the Commencement Date and shall continue until June 30, 2004. If
Employer chooses not to extend this Agreement beyond June 30, 2004, Employer
shall pay Executive a severance payment of $125,000, to be paid in 12 equal
monthly installments beginning on July 1, 2004.
4. Position and Duties; Representations and Warranties.
4.1 Service With Employer. Executive shall be Employer's Senior
Vice President-Operations. During the term of this Agreement, Executive agrees
to perform all duties consistent with such position and to report to the
President of Employer. Executive shall have the powers, duties and
responsibilities consistent with his position, including without limitation
those set forth on Exhibit A hereto. If Executive is elected to serve as a
director of Employer or of one or more subsidiaries of Employer, Executive shall
serve in such capacities but shall not be entitled to any additional
compensation for such service; provided, however, Executive shall be entitled to
reimbursement of reasonable out-of-pocket expenses incurred by Executive in
connection with his service as a director of Employer or of one or more
subsidiaries of Employer in accordance with Employer's policies.
4.2 Performance of Duties. Executive agrees to serve Employer
faithfully and to the best of his ability and to devote his full business time,
attention and best efforts to the business and affairs of Employer during the
term of this Agreement. Executive hereby confirms that he is under no
contractual commitments inconsistent with his obligations set forth in this
Agreement, and that during the term of this Agreement he will not render or
perform services for any other Person which are inconsistent with the provisions
of this Agreement; provided, however, that Executive may render or perform
services for TBC provided such services do not in any substantial way adversely
affect or interfere with Executive's services and performance hereunder.
4.3 Representations and Warranties of Executive. Executive
represents and warrants to Employer that, as of the date hereof and throughout
the term of this Agreement:
(a) Executive is not and will not in any way whatsoever be
contractually restricted or prohibited from entering into this Agreement
and performing the services and obligations herein contained; and
(b) Executive's execution of this Agreement and his
performance of the services and obligations herein contained, do not and
will not constitute a default or
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an event that, with or without notice or lapse of time or both, would be a
default, breach or violation of any agreement, contract, instrument or
arrangement to which Executive is a party or by which Executive is bound.
4.4 Representations and Warranties of Employer. Employer
represents and warrants to Executive that, as of the date hereof and throughout
the term of this Agreement:
(a) It is not and will not in any way whatsoever be
contractually restricted or prohibited from entering into this Agreement
and performing its obligations herein contained; and
(b) Its execution of this Agreement, and its performance of
its obligations herein contained, do not and will not constitute a default
or an event that, with or without notice or lapse of time or both, would
be a default, breach or violation of any agreement, contract, instrument
or arrangement to which it is a party or by which it is bound.
4.5 Location. Executive shall be based at MOS's principal offices.
5. Compensation and Benefits.
5.1 Base Salary. Executive shall be entitled to a minimum annual
base salary ("Salary") of (i) $225,000 during Year 2001 and (ii) $250,000 during
Years 2002, 2003 and 2004. The Salary shall be paid in accordance with
Employer's normal payment schedule for executive employees. The Salary shall be
pro-rated for any Year which is less than twelve months.
5.2 Bonuses. (a) In each Year, Executive shall be entitled to
quarterly bonuses of a minimum of $6,250 and a maximum of $25,000. The actual
amounts of the quarterly bonuses in Year 2001 (which will only be payable with
respect to the last two fiscal quarters of such Year) will be based upon the
Employer' s EBITDA results and applicable bonus amounts for each such quarter as
set forth on Exhibit B hereto, and in Years 2002, 2003 and 2004 (which will only
be payable with respect to the first two fiscal quarters of such Year) will be
based upon Employer's achieving the applicable quarterly performance goals set
by the Board of Directors for each of such Years. All minimum quarterly bonuses
shall be paid on the last day of each fiscal quarter during each Year and any
additional quarterly bonuses shall be paid by Employer to Executive quarterly in
arrears within five (5) days after Employer's filing of the SEC Form 10Q
quarterly and SEC Form 10K annual periodic reports for each of such Years.
(b) Executive may be entitled to an annual bonus for
each Year as follows: Executive's annual bonus for Year 2001 shall be $12,500 if
Employer's consolidated revenues during its year ending December 31, 2001 are at
least $100 million; Executive's annual bonuses for Years 2002, 2003 and 2004
(which if earned will be pro-rated and paid as provided below) shall be up to
$25,000, the actual amount to depend upon Employer's achieving the annual
performance goals set by the Board of Directors for each of
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such Years. All annual bonuses will be paid by Employer to Executive within five
(5) days after the Employer's filing of its SEC 10-K annual report required to
be filed for each of such Years.
5.3 Other Benefits. Executive shall have the right to participate
in all Employer benefit plans which may be in effect for executive employees
from time to time, including, without limitation, group health and dental
insurance, group life insurance, disability insurance, and retirement, 401(K)
profit sharing and pension plans in accordance with the terms and conditions
thereof. If Employer does not have and maintain a long-term disability insurance
program satisfactory to Executive, Employer shall pay or reimburse Executive for
the annual premiums (not to exceed $5,000 per Year) on a disability income
insurance policy owned by and covering Executive.
5.4 Expenses. Employer shall pay or reimburse Executive for all
reasonable and necessary out-of-pocket expenses incurred by Executive in the
performance of his duties under this Agreement, subject to the presentment by
Executive of appropriate vouchers in accordance with Employer's normal policies
for expense verification.
5.5 Vacation. Executive shall be entitled to three weeks vacation
each Year during the term of this Agreement beginning with Year 2002. Any
vacation taken by Executive shall be taken at such time as is reasonably
convenient in relationship to the needs of the business of Employer. Vacation
time shall not accrue beyond the Year in question; provided, however, that any
vacation time not taken during any Year due to constraints imposed by Employer's
business requirements shall accrue beyond the Year in question.
5.6 Automobile. Executive shall be reimbursed for 80% of his
monthly automobile lease or purchase payments and other expenses incidental to
the operation of such automobile, subject to a maximum reimbursement of $1,000
per month (which maximum amount will increase by 5% on each July 1 after the
Commencement Date) and to his presentment of appropriate vouchers and
documentation in accordance with Employer's normal policies for expense and
business use verification.
5.7 Life Insurance. Employer shall provide Executive with
additional term life insurance coverage of $1,000,000, provided Executive can
pass a standard physical. Such coverage shall be provided by the same insurer as
provides the coverage under Employer's group life insurance plan, or another
carrier acceptable to Executive.
5.8 Stock Options. On the Commencement Date, Employer will grant
to Executive the stock options described in Exhibit C hereto.
6. Restrictive Covenants.
6.1 Certain Definitions. For purposes of this Section 6, the
following terms shall have the following meanings:
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"Competitive Activity" means any activity conducted in the
Restricted Area which directly competes with Employer's magazine business or
which provides services to any entity or person that directly competes with
Employer's magazine business, whether as a proprietor, partner, shareholder,
owner, member, employer, employee, independent contractor, venturer or
otherwise.
"Competitor" means any Person, other than Employer, which at
any time during the Restriction Period engages in any Competitive Activity.
"Confidential Information" means all information of or
relating to Employer, its business or practice, which is not generally known or
available to the public (whether or not in written or tangible form) including,
without limitation, customer lists, supplier lists, processes, know-how, trade
secrets, pricing policies and other confidential business information.
"Confidential Materials" means any and all documents, records,
reports, lists, notes, plans, materials, programs, software, disks, diskettes,
recordings, manuals, correspondence, memoranda, magnetic media or any other
tangible media (including, without limitation, copies or reproductions of any of
the foregoing) in which any Confidential Information may be contained.
"Employer" means Employer and its Subsidiaries, whether now or
in the future.
"Person" means an individual, proprietorship, partnership,
joint venture, corporation, limited liability company, association, trust,
estate, unincorporated organization, a government or any branch, subdivision,
department or agency thereof, or any other entity.
"Personnel" means any and all employees, contractors, agents,
vendors, suppliers, consultants or other Persons rendering or providing goods or
services to Employer for compensation in any form, whether employed by or
independent of Employer.
"Restricted Area" means the United States, Canada, and their
respective territories and possessions, except that the Restricted Area shall be
worldwide with respect to any Competitive Activity involving the Internet, the
World Wide Web, telemarketing, telephony or other electronic or similar media.
"Restriction Period" means the period of time, commencing on
the date hereof and expiring two (2) years after the termination of Executive's
employment with Employer pursuant to this Agreement, voluntarily or
involuntarily, for any reason whatsoever, subject to extension pursuant to
Section 6.6 below.
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6.2 Confidentiality.
(a) Confidential Information. Subject to Section 6.2(c):
(1) Duty to Maintain Confidentiality. Executive shall
maintain in strict confidence and duly safeguard to the best of his
ability any and all Confidential Information.
(2) Covenant Not to Disclose, Use or Exploit.
Executive shall not, directly or indirectly, disclose, divulge or
otherwise communicate to anyone or use or otherwise exploit for the
benefit of anyone, other than Employer, any Confidential Information.
(3) Confidential Materials. All Confidential
Information and Confidential Materials are and shall remain the exclusive
property of Employer and no Confidential Materials may be copied or
otherwise reproduced, removed from the premises of Employer or entrusted
to any Person (other than Employer or the Personnel entitled to such
materials) without prior written permission from Employer.
(b) Survival of Covenants. Notwithstanding anything herein
to the contrary, the covenants set forth in this Section 6.2 shall
survive the termination of this Agreement and any other agreement
among any or all of the parties hereto (regardless of the reason for
such termination), unless terminated by a written instrument that
expressly terminates by specific reference the covenants set forth
in this Section 6.2.
(c) Permitted Activities. If Executive receives a request or
demand for Confidential Information (whether pursuant to a discovery
request, subpoena or otherwise), Executive shall promptly give
Employer written notice thereof and shall fully cooperate and assist
Employer in whatever efforts Employer may make to resist or limit
disclosure or to obtain a protective order or other appropriate
remedy to limit or prohibit further disclosure or use of such
Confidential Information. If Executive complies with the preceding
sentence but nonetheless becomes legally compelled to disclose
Confidential Information, Executive shall disclose only that portion
of the Confidential Information that he is legally compelled to
disclose.
6.3 Covenant not to Compete. During the Restriction Period,
Executive shall not, directly or indirectly, whether as a sole practitioner,
owner, partner, shareholder, investor, employee, employer, venturer, independent
contractor, consultant or other participant, (i) own, manage, invest in or
acquire any economic stake or interest in any Person involved in a Competitive
Activity, (ii) derive economic benefit from or with respect to any Competitive
Activity by any Person or (iii) otherwise engage or participate in any manner
whatsoever in any Competitive Activity; provided, however, this Section 6.3
shall not restrict Executive from owning less than 2% of the publicly traded
debt or equity securities issued by a corporation or other entity or from having
any other passive investment that creates no conflict
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of loyalty or interest with any duty owed to Employer. Executive shall be deemed
to have derived economic benefit in violation of this Section 6.3 if, among
other things, any of his compensation or income is in any way related to any
Competitive Activity conducted by any Person. Further, during the Restriction
Period Executive shall not directly or indirectly advance, cooperate in or help
or aid any Competitor in the conduct of any Competitive Activity.
6.4 Covenant not to Interfere. During the Restriction Period,
Executive shall not, directly or indirectly, recruit, solicit or otherwise
induce or influence any Personnel of Employer to discontinue, reduce the extent
of, discourage the development of or otherwise harm such Personnel's
relationship or commitment to Employer. Conduct prohibited under this Section
6.4 shall include, without limitation, employing, seeking to employ or causing,
aiding, inducing or influencing a Competitor to employ or seek to employ any
Personnel of Employer.
6.5 Equitable Relief. Each of the parties acknowledges that the
provisions and restrictions of this Section 6 are reasonable and necessary for
the protection of the legitimate interests of Employer. Each of the parties
further acknowledges that the provisions and restrictions of this Section 6 are
unique and that any breach or threatened breach of any of such provisions or
restrictions will provide Employer with no adequate remedy at law, and the
result will be irreparable harm to Employer. Therefore, the parties hereto agree
that upon a breach or threatened breach of the provisions or restrictions of
this Section 6, Employer shall be entitled, in addition to any other rights and
remedies which may be available to it, to institute and maintain proceedings at
law or in equity, to recover damages, to obtain an equitable accounting of all
earnings, profits or other benefits resulting from such breach or threatened
breach and to obtain specific performance or a temporary and permanent
injunction.
6.6 Full Restriction Period. If Executive violates any restrictive
covenant contained herein and Employer institutes action for equitable relief,
Employer, as a result of the time involved in obtaining such relief, shall not
be deprived of the benefit of the full Restriction Period. Accordingly, the
Restriction Period shall be deemed to have the duration specified in Section
6.1, computed from and commencing on the date on which relief is granted by a
final order from which there is no appeal, but reduced, if applicable, by the
length of time between the date the Restriction Period commenced and the date of
the first violation of any restrictive covenant by Executive.
6.7 Equitable Accounting. Employer shall have the right to demand
and receive equitable accounting with respect to any consideration received by
Executive in connection with activities in breach of the restrictive covenants
herein, and Employer shall be entitled to payment from Executive of such
consideration on demand.
6.8 Prior Breaches. Neither the expiration of the Restriction
Period nor the termination of the status of any customer of Employer or
Personnel as such (whether or not due to a breach hereof by Executive) shall
preclude, limit or otherwise affect the rights and
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remedies of Employer against Executive based upon any breach hereof during the
Restriction Period or before such status of Customer or Personnel terminated.
6.9 Noncircumvention of Covenants. Executive acknowledges and
agrees that, for purposes of this Agreement, an action shall be considered to
have been taken by Executive "indirectly" if taken by or through (a) any member
of his family (whether a close or distant relation by blood, marriage or
adoption), (b) any Person owned or controlled, solely or with others, directly
or indirectly by Executive or a member of his family, (c) any Person of which he
is an owner, partner, employer, employee, trustee, independent contractor or
agent, (d) any employees, partners, owners or independent contractors of any
such Person or (e) any other one or more representatives or intermediaries, it
being the intention of the parties that Executive shall not directly or
indirectly circumvent any restrictive covenant contained herein or the intent
thereof.
6.10 Notice of Restrictions. During the Restriction Period,
Executive shall notify each prospective employer, partner or co-venturer of the
restrictions contained in this Agreement. Employer is hereby authorized to
contact any of such Persons for the purpose of providing notice of such
restrictions.
6.11 Reduction of Restrictions by Court Action. Each of the
provisions hereof including, without limitation, the periods of time, geographic
areas and types and scopes of duties of, and restrictions on the activities of,
the parties hereto specified herein are and are intended to be divisible, and if
any portion thereof (including any sentence, clause or word) shall be held
contrary to law or invalid or unenforceable in any respect in any jurisdiction,
or as to one or more periods of time, areas or business activities or any part
thereof, the remaining provisions shall not be affected but shall remain in full
force and effect, and any such invalid or unenforceable provision shall be
deemed, without further action on the part of any party hereto or other Person,
modified and amended to the minimum extent necessary to render the same valid
and enforceable in such jurisdiction.
6.12 Fairness of Restrictions. Executive acknowledges and agrees
that (a) compliance with the restrictive covenants set forth herein would not
prevent him from earning a living that involves his training and skills without
relocating, but only from engaging in unfair competition with, misappropriating
a corporate opportunity of, or otherwise unfairly harming Employer and (b) the
restrictive covenants set forth herein are intended to provide a minimum level
of protection necessary to protect the legitimate interests of Employer. In
addition, the parties acknowledge that nothing herein is intended to or shall,
limit, replace or otherwise affect any other rights or remedies at law or in
equity for protection against unfair competition with, misappropriation of
corporate opportunities of, disclosure of confidential and proprietary
information of, or defamation of Employer, or for protection of any other rights
or interest of Employer.
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7. Indemnification.
7.1 Generally.
(a) Employer shall indemnify and hold harmless Executive to
the fullest extent lawful from and against, and Executive shall have
no liability to the Employer or its owners, parents, creditors
(past, present or future) or security holders for, any and all
Losses, Expenses and Claims related to or arising out of an
Indemnifiable Event, except that no indemnification shall be made in
respect of any Claims, Losses or Expenses arising out of an
otherwise Indemnifiable Event as to which Executive's actions or
conduct shall have finally been adjudicated to constitute gross
negligence or willful misconduct. The terms "Expenses", "Claims",
"Losses" and "Indemnifiable Event" shall have the meanings given
them in Section 7.7 below.
(b) Employer shall not settle any pending or threatened
Claim related to or arising out of an Indemnifiable Event (whether
or not Executive is a party to such Claim) unless such settlement
includes a provision unconditionally releasing Executive from and
holding Executive harmless from and against any and all Losses and
Expenses in respect of all Claims by any Person related to or
arising out of such Indemnifiable Event.
(c) Employer shall promptly advance to Executive all
Expenses as they are incurred by Executive in connection with
investigating, preparing or defending, or providing evidence in, any
pending or threatened Claim in respect of which indemnification may
be sought hereunder (whether or not Executive is a party to such
Claim) or in enforcing this Agreement. If Executive makes a claim
hereunder for payment (or advancement) of Expenses, such Expenses
shall be paid (or advanced) promptly even if Employer reserves the
right to obtain a refund thereof to the extent that such Expenses
were incurred in connection with a Loss, Expense or Claim as to
which there is a final judicial determination that Executive is not
entitled to indemnification pursuant to this Agreement.
7.2 Indemnification for Additional Expenses. Employer shall
indemnify Executive against and reimburse for and advance to Executive any and
all Expenses that are incurred by Executive in connection with any Claim
asserted against or action brought by Executive for (a) indemnification of
Expenses by Employer under this Agreement or any other agreement or provision of
Employer's Certificate of Incorporation or By-laws now or hereafter in effect
relating to Claims for Indemnifiable Events or (b) recovery under any directors'
and officers' liability insurance policies.
7.3 Partial Indemnity. If Executive is entitled to indemnification
for a portion (but not all) of the Expenses and Losses relating to a Claim,
Employer shall indemnify Executive for such portion. To the extent Executive has
been successful (in whole or in part) on the merits or otherwise in defense of
any Claim relating to an Indemnifiable Event or in
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defense of any issue or matter therein, Executive shall be indemnified against
all Expenses incurred in connection therewith.
7.4 No Presumption. The termination of any Claim by judgment,
order, settlement, conviction or upon a plea of nolo contendere, or its
equivalent, shall not, of itself, create a presumption that Executive is not
entitled to indemnification hereunder.
7.5 Non-exclusivity. The rights of Executive hereunder shall be in
addition to any and all other rights Executive may have under Employer's By-laws
or Certificate of Incorporation, any vote by Employer's shareholders or
disinterested directors, or applicable law. Subject to the provisions of Section
7.1(a) hereof, to the extent that a change in applicable law permits or provides
greater indemnification than is afforded under Employer's By-laws or Certificate
of Incorporation and this Agreement, Executive shall enjoy by this Agreement the
greater benefits so afforded by that change.
7.6 Liability Insurance. If and to the extent that Employer from
time to time maintains an insurance policy or policies providing directors' and
officers' liability insurance (a "D&O Policy"), Executive shall be covered by
such policy or policies, in accordance with its or their terms, to the maximum
extent of the coverage available under such policy or policies for any officer
or director of Employer. If Employer fails or is unable to obtain or maintain a
D&O Policy providing at least $5 Million of aggregate coverage, Executive shall
have the right to terminate his employment hereunder, and the provisions of
Section 8.2(d) (and not 8.2(b)) shall apply to such termination.
7.7 Defined Terms.
(a) "Claims": any threatened, asserted, pending or completed
action (including shareholder actions), suit or proceeding, whether
civil, criminal, administrative or investigative, or any inquiry or
investigation (including discovery), whether conducted by Employer
or any other Person, that might lead or is threatened to lead to the
institution of any such action, suit or proceeding.
(b) "Expenses": all costs, expenses (including attorneys',
advisors' and expert witnesses' fees and expenses) and obligations
paid or incurred in connection with investigating, defending, being
a witness in or participating in (including on appeal), or preparing
to defend, be a witness in or participate in any Claim.
(c) "Indemnifiable Event": any omission, event or occurrence
related to or in any way connected with or arising out of the fact
that Executive is or was a director, officer, employee, agent or
fiduciary of Employer, or is or was serving at the request of
Employer as a director, officer, employee, trustee, agent or
fiduciary of another corporation, partnership, joint venture,
employee benefit plan, trust or other enterprise, or by reason of
anything done or not done by Executive in any such capacity. For
purposes of this Agreement, Employer
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agrees that Executive's service on behalf of or with respect to any
parent, subsidiary or affiliate of Employer shall be deemed to be at
the request of Employer.
(d) "Losses": any judgments, liabilities, debts, excise
taxes, fines, penalties and amounts paid or required to be paid in
settlement.
8. Termination.
8.1 Bases for Termination. The employment relationship created
under this Agreement between Employer and Executive shall terminate prior to the
expiration of the initial term of this Agreement or any extension thereof only
upon the occurrence of any one of the following events (provided, however, that
the giving of notice provided for below shall not create a presumption that the
event has in fact occurred):
(a) The death of Executive;
(b) Executive shall become Permanently Disabled (for
purposes of this subsection (b), "Permanently Disabled" shall have
the meaning as set forth in Section 8.5 hereof);
(c) Immediately upon delivery to Executive by Employer of
written notice of termination for Cause;
(d) Thirty (30) days after delivery to Employer by Executive
of written notice of Executive's voluntary and unilateral
termination of this Agreement without Good Reason;
(e) Immediately upon delivery to Employer by Executive of
written notice of termination for breach of this Agreement by
Employer, which notice shall specify such alleged breach and may be
given (i) 20 days after Employer has failed to make any payment to
Executive hereunder when due, provided the payment has not been made
within such 20 day period, (ii) after Employer has failed to perform
or has otherwise breached any non-monetary provision of this
Agreement, which failure or breach is not capable of being cured
within 30 days or (iii) after Employer has failed to perform or
otherwise breached any nonmonetary provision of this Agreement,
which failure or breach is capable of being cured within 30 days and
which failure or breach has not been cured within 30 days after
notice of such failure or breach is given by Executive to Employer.
Employer's breach of this Agreement shall include (but shall not be
limited to) the following: (i) Employer's attempted assignment to
Executive of any duties inconsistent with his status of Senior Vice
President-Operations of Employer or attempted adverse alteration in
the nature or status of Executive's responsibilities from those in
effect upon commencement of his employment hereunder; (ii)
Employer's attempted reduction in Executive's Salary or Bonus; (iii)
Employer's requiring Executive to be based anywhere other than MOS's
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principal executive offices; (iv) the failure by Employer to
continue in effect any compensation plan in which Executive is
participating which is material to Executive's total compensation;
(v) the failure by Employer to continue to provide Executive with
benefits substantially identical to those provided to Executive
under this Agreement; or (vi) the failure by Employer to obtain a
satisfactory agreement from any successor to assume and agree to
perform this Agreement;
(f) Immediately upon delivery to Employer by Executive of
written notice of termination after the occurrence of a Change of
Control;
(g) Immediately upon delivery to Executive by Employer of
written notice of termination without Cause; or
(h) Immediately upon delivery to Employer by Executive of
written notice of termination for Good Reason.
Notwithstanding any termination of employment, Executive, in consideration of
his employment hereunder to the date of such termination and the payment by
Employer of the compensation payable hereunder, agrees to remain bound by the
provisions of Sections 6 and 8.3 hereof for the periods (except that if
termination is pursuant to clauses (e) or (g) above, the periods under Sections
6.3 and 6.4 shall be limited to the remainder of the Term), geographic area and
scope specified therein, and Employer, in consideration of its receipt of
Executive's services hereunder to the date of such termination, agrees to remain
bound by the provisions of Section 8.2 hereof.
8.2 Effect of Termination.
(a) If Executive's employment is terminated pursuant to
clauses (a) or (b) of Section 8.1 hereof, Executive shall be
entitled to receive his Salary pro-rated through the effective date
of such termination (which shall be the date of death or the date
Executive becomes Permanently Disabled), which pro-rated Salary
shall be paid to Executive within 15 days of such effective date,
and any Bonus payable for the Year during which such termination
occurred pro-rated through the effective date of such termination,
which pro-rated Bonus shall be paid on the next scheduled bonus
payment date. Executive shall also be entitled to reimbursement for
all Expenses incurred by Executive prior to such effective date, to
the extent that such expenses have not been previously reimbursed by
Employer, which Expenses shall be paid to Executive within 15 days
after Executive (or his representative) submits to Employer
appropriate documentation as required hereunder.
(b) If Executive's employment is terminated pursuant to
clauses (c) or (d) of Section 8.1 hereof, Executive shall be
entitled to receive his Salary pro-rated through the effective date
of such termination, which pro-rated Salary shall be paid to
Executive within 15 days of such effective date. Executive shall
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also be entitled to reimbursement for Expenses incurred by Executive
prior to such effective date, to the extent that such expenses have
not been previously reimbursed by Employer), which Expenses shall be
paid to Executive within 15 days after Executive submits to Employer
appropriate documentation as required hereunder.
(c) If Executive's employment is terminated pursuant to
clauses (e), (g) or (h) of Section 8.1 hereof, (i) Employer shall
(x) continue to pay to Executive his Salary in effect as of the date
immediately prior to the effective date of such termination, and
shall continue to provide all payments and benefits contemplated by
Section 5 hereof for the remainder of the Term, and (y) reimburse
Executive for all Expenses incurred prior to such effective date, to
the extent that such Expenses have not been previously reimbursed by
Employer, which Expenses shall be paid to Executive within 15 days
after Executive submits to Employer appropriate documentation as
required hereunder, (ii) all unvested Options shall immediately
become fully vested and exercisable and (iii) Executive shall be
entitled to receive all guaranteed Bonuses payable for the remaining
Years of the Term, and (iv) Executive shall have all other rights
and remedies available to him at law or in equity arising out of
Employer's breach.
(d) If Executive's employment is terminated pursuant to
clause (f) of Section 8.1 hereof, (i) Employer shall pay to
Executive all payments required under clause (a) of this Section
8.2, (ii) Employer shall also pay to Executive, within 30 days of
such termination, a severance payment of $200,000 and (iii) all
unvested Options shall immediately become fully vested and
exercisable.
8.3 Surrender of Records and Property. Upon termination of his
employment with Employer, Executive shall promptly deliver to Employer all
records, manuals, books, blank forms, documents, letters, memoranda, notes,
notebooks, reports, data, tables, calculations and copies thereof, which are the
property of Employer or which relate in any way to the business, products,
practices or techniques of Employer, and all other property, trade secrets and
confidential information of Employer, including, without limitation, all
documents which in whole or in part contain any trade secrets or confidential
information of Employer, which in any of these cases are in his possession or
under his control.
8.4 No Mitigation. 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, nor shall the amount of any payment
provided for under this Agreement be reduced by any compensation earned by
Executive as a result of employment by another employer, or otherwise.
8.5 Permanently Disabled. For purposes of Section 8.1(b) hereof,
Executive shall be "Permanently Disabled" when Executive is unable to continue
his normal duties of employment, by reason of a medically determined physical or
mental impairment, for a
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continuous period of nineteen (19) consecutive weeks or for any twenty-six (26)
weeks within a fifty-two (52) week period (or such longer period, not to exceed
thirty-eight (38) weeks, if Executive's disability insurance policy requires a
benefit waiting period longer than such six month period).
9. Miscellaneous.
9.1 Governing Law. THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER THE LAWS OF DELAWARE AND FOR ALL PURPOSES SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF SAID STATE APPLICABLE TO CONTRACTS MADE AND TO BE
PERFORMED WITHIN SAID STATE.
9.2 Entire Agreement. This Agreement (together with the exhibits
attached hereto, which hereby are incorporated by reference) contains the entire
agreement of the parties hereto relating to the employment of Executive by
Employer and the other matters discussed herein and supersedes all prior
agreements and understandings with respect to such subject matter, and the
parties hereto have made no agreements, representations or warranties relating
to the subject matter of this Agreement which are not set forth herein.
9.3 Withholding Taxes. Employer may withhold from any compensation
or other benefits payable under this Agreement all federal, state, city or other
taxes as shall be required pursuant to any law or governmental regulation or
ruling.
9.4 Supplements and Amendments. This Agreement may be supplemented
or amended only upon the written consent of each of the parties hereto.
9.5 Assignment. Except as expressly provided below, this Agreement
shall not be assignable, in whole or in part, by either party without the prior
written consent of the other party. Employer may, without the prior written
consent of Executive, assign its rights and obligations under this Agreement to
any other corporation, firm or other business entity with or into which Employer
may merge or consolidate, or to which Employer may sell or transfer all or
substantially all of its assets, or of which 50% or more of the equity
investment and of the voting control is owned, directly or indirectly, by, or is
under common ownership with, Employer; provided, however, that such assignment
may be made without Executive's prior written consent only if (a) such
assignment has a valid business purpose and is not for the purpose of avoiding
Employer's obligations hereunder or Executive's realization of the benefits of
this Agreement and (b) the assignee expressly assumes in writing all obligations
and liabilities to Executive hereunder. Employer will cause any purchaser of all
or substantially all of the assets of Employer, by agreement in form and
substance reasonably satisfactory to Executive, to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that Employer
would be required to perform it if no such purchase had taken place. This
Agreement shall be binding upon and inure to the benefit of Employer and their
respective successors and permitted assigns. This Agreement and all rights of
Executive hereunder shall inure to the benefit of and be enforceable by
Executive's heirs, personal or legal representatives and beneficiaries. If this
Agreement is terminated pursuant to clause (a)
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of Section 8.1 hereof, all amounts payable pursuant to clause (a) of Section 8.2
hereof shall be paid to Executive's designated beneficiaries or, if no such
beneficiaries have been designated, to Executive's estate.
9.6 No Waiver. No term or condition of this Agreement shall be
deemed to have been waived, nor shall there be any estoppel to enforce any
provisions of this Agreement, except by a statement in writing signed by the
party against whom enforcement of the waiver or estoppel is sought. Any written
waiver shall not be deemed a continuing waiver unless specifically stated, shall
operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future or as to any act
other than that specifically waived.
9.7 Severability. The provisions of this Agreement are severable,
and if any one or more provisions may be determined to be judicially
unenforceable and/or invalid by a court of competent jurisdiction, in whole or
in part, the remaining provisions shall nevertheless be binding, enforceable and
in full force and effect.
9.8 Titles and Headings. The titles and headings of the various
Sections of this Agreement are intended solely for convenience of reference and
not intended for any purpose whatsoever to explain, modify or place any
construction upon any of the provisions hereof.
9.9 Attorneys' Fees. In the event that any party hereto brings
suit against the other party, based upon or arising out of a breach or violation
of this Agreement, each party hereto agrees that the party who is successful on
the merits, upon final adjudication from which no further appeal can be taken or
is taken within the time allowed by law, shall be entitled to recover his or its
reasonable attorneys, fees and expenses from the party which is not successful.
9.10 Injunctive Relief. Executive agrees that it would be difficult
to compensate Employer fully for damages for any violation of the provisions of
Sections 6 and 8.3 hereof. Accordingly, Executive specifically agrees that
Employer shall be entitled to temporary and permanent injunctive relief to
enforce such provisions of this Agreement. This provision with respect to
injunctive relief shall not, however, diminish the right of Employer to claim
and recover damages in addition to injunctive relief.
9.11 Notices. For the purpose of this Agreement, notices and all
other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when hand delivered (which shall include
personal delivery and delivery by courier, messenger or overnight delivery
service) or mailed by certified mail, return receipt requested, postage prepaid,
addressed as follows:
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If to Executive: Mr. Xxx Xxxxxx
000 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
If to Employer: Cross Media Marketing Corporation
000 Xxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx, President
or to such other address of which either party gives notice to the other party
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
9.12 Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
CROSS MEDIA MARKETING CORPORATION
By: /s/Xxxxxxx Xxxxxxx
---------------------------------------
XXXXXXX XXXXXXX
WITNESS:
/s/ Xxx Xxxxxx
------------------------ ------------------------------------------
XXX XXXXXX
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