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Exhibit 10.07
EMPLOYMENT AGREEMENT
AGREEMENT made as of the 23rd day of April 1999 (the "Effective Date"),
between XXXXX Online, Inc. with its principal office at 00 Xxxxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxxx ("Company"), and Xxx Xxx having an address at 000 Xxxxxxx
Xxxxxx, Xxxxx Xxxx, Xxxxxxxxxxx ("Employee").
W I T N E S S E T H:
WHEREAS, the Company operates an Internet financial information business;
and
WHEREAS, the Company desires to employ the Employee as President and Chief
Operating Officer and to be assured of his services as such on the terms and
conditions set forth herein; and
WHEREAS, the Employee is willing to accept such employment on such terms
and conditions.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements hereinafter set forth, the parties agree as follows:
1. Employment. The Company shall employ the Employee and the Employee
shall serve the Company, upon the terms and conditions hereinafter set forth.
2. Term. The term of the Employee's employment shall commence on the
Effective Date and unless terminated earlier or extended as provided below,
shall continue for a period of two years from the Effective Date (the
"Employment Term"). Upon the expiration of the initial employment term and on
each anniversary date thereafter, the employment of Employee shall be renewed
and extended for an additional year unless either party provides written notice
to the other party, of his or its, as the case may be, desire to terminate this
Agreement at least thirty (30)
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days prior to the renewal date.
3. Duties. During the Employment Term, the Employee shall have such
duties, functions, authority and responsibilities normally associated with the
positions and offices of President and Chief Operating Officer. During the
Employment Term, the Employee shall devote his full attention and business time
to the business and affairs of the Company and the Employee will use his best
efforts to perform faithfully and efficiently, and to discharge, the Employee's
responsibilities and duties under this Agreement. Notwithstanding the foregoing,
the Employee may devote such time to manage his personal affairs and to serve on
community, corporate, civic, professional or charitable boards or committees, so
long as such activities do not unreasonably interfere with the performance of
the Employee's duties and responsibilities under this Agreement.
4. Compensation and Employee Benefits.
(a) The Employee's base salary during the initial term of employment
shall be no less than $125,000 commencing on the Effective Date payable in
accordance with the Company's payroll practices as in effect from time to time.
The Employee's base salary will be reviewed annually by the Company's Board of
Directors (the "Board") to determine whether an increase is warranted or
appropriate. The Employee also will be entitled to be considered for awards each
year under the Company's then existing incentive bonus program, which may take
into account individual and Company-wide performance, or such other performance
criteria as the Board may from time to time apply.
(b) If the Employee remains employed with the Company on the second
anniversary of the Effective Date, the Company will pay to the Employee a
retention bonus (the "Retention Bonus") equal to two times the sum of (x) the
Employee's then applicable base salary
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and (y) the average of the last two year's cash bonuses paid by the Company to
the Employee.
5. Benefits. During the Employment Term, the Employee shall have the right
to participate in such health and disability insurance plans which the Company
may provide to its senior executive officers and for which the Employee is
eligible, the premiums of which shall be paid by the Company (e.g., long term
disability, life insurance and medical insurance for the Employee and his
dependents). During the Employment term, the Employee will be entitled four
weeks of paid vacation in accordance with the Company's policy. Such vacation
may be taken in the Employee's discretion with the prior approval of the
Company, and at such time or times as are not inconsistent with the reasonable
business needs of the Company.
6. Business Expenses. All reasonable travel, entertainment and other
expenses incident to the performance of the Employee's duties or the rendering
of services incurred on behalf of the Company by the Employee during the
Employment Term shall be paid by the Company.
7. Termination. Notwithstanding the provisions of Section 2 hereof, the
Employee's employment with the Company may be earlier terminated as follows:
(a) By action taken by the Board, the Employee may be discharged for
cause (as defined below), effective as of such time as the Board shall
determine. Upon discharge of the Employee pursuant to this Section 7(a), the
Company shall have no further obligation or duties to the Employee, except for
payment of base salary and bonus through the effective date of termination and
the Employee shall have no further obligations or duties to the Company, except
as provided in Section 8.
(b) In the event of (i) the death of the Employee or (ii) by action
of the Board in the event of the inability of the Employee, by reason of
physical or mental disability, to
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continue substantially to perform his duties hereunder for an aggregate period
of 180 days during the Employment Term, during which 180 day period salary and
any other benefits hereunder shall not be suspended or diminished. Upon any
termination of the Employee's employment under this Section 7(b), the Company
shall have no further obligations or duties to the Employee, and the Employee
shall have no further obligations or duties to the Company, except as provided
in Section 8.
(c) In the event that there is a change of control of the Company
(as defined below), and the Agreement is terminated by either the Employee or
the Company for whatever reason within one year of such a change of control, the
Company shall pay to the Employee, in addition to accrued salary and benefits
payable to the Employee through the date of termination of employment, (i) the
Retention Bonus and (ii) a severance payment from the Company equal to two times
the sum of (x) the Employee's then applicable base salary and (y) the average of
the last two year's cash bonuses paid by the Company to the Employee. In
addition, all stock options and other awards under the Company's 1996 and 1999
stock option plans shall immediately vest and remain exercisable for the a
period of the lesser of (i) the original term of the stock option and (ii) five
years.
(d) For purposes of this Agreement, the Company shall have "cause"
to terminate the Employee's employment under this Agreement upon (i) the failure
by the Employee to substantially perform his duties under this Agreement, (ii)
the engaging by the Employee in criminal misconduct (including embezzlement and
criminal fraud) which is materially injurious to the Company, monetarily or
otherwise, (iii) the conviction of the Employee of a felony, or (iv) gross
negligence on the part of the Employee. The Company shall give written notice to
the Employee, which notice shall specify the grounds for the proposed
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termination and the Employee shall be given thirty (30) days to cure if the
grounds arise under clauses (i) or (iv) above.
(e) For purposes of this Agreement, a "change of control of the
Company" shall mean the occurrence of (i) the acquisition by an individual,
entity, or group of the beneficial ownership of 50% or more (other than by Marc
and Xxxxx Xxxxxxxxxx and their affiliates) of (1) the outstanding common stock,
or (2) the combined voting power of the Company's voting securities; provided,
however, that the following acquisitions will not constitute a "change of
control": (x) any acquisition by any employee benefit plan of the Company or any
affiliate or (y) any acquisition by any corporation if, immediately following
such acquisition, more than 50% of the outstanding common stock and the
outstanding voting securities of such corporation is beneficially owned by all
or substantially all of those who, immediately prior to such acquisition, were
the beneficial owners of the common stock and the Company's voting securities
(in substantially similar proportions as their ownership of such Company
securities immediately prior thereto); or (ii) the approval by the Company's
stockholders of a reorganization, merger or consolidation, other than one with
respect to which all or substantially all of those who were the beneficial
owners, immediately prior to such reorganization, merger or consolidation, of
the Common Stock and the Company's voting securities beneficially own,
immediately after such transaction, more than 50% of the outstanding common
stock and voting securities of the corporation resulting from such transaction
(in substantially the same proportions as their ownership, immediately prior
thereto, of the Common Stock and the Company's voting securities); or (iii) the
approval by the Company's stockholders of the sale or other disposition of all
or substantially all of the assets of the Company, other than to a subsidiary of
the Company
8. Confidentiality; Noncompetition.
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(a) The Company and the Employee acknowledge that the services to be
performed by the Employee under this Agreement are unique and extraordinary and,
as a result of such employment, the Employee will be in possession of
confidential information relating to the business practices of the Company. The
term "confidential information" shall mean any and all information (oral or
written) relating to the Company or any of its affiliates, or any of their
respective activities, other than such information which can be shown by the
Employee to be in the public domain (such information not being deemed to be in
the public domain merely because it is embraced by more general information
which is in the public domain) other than as the result of breach of the
provisions of this Section 8(a), including, but not limited to, information
relating to: trade secrets, proprietary information, personnel lists, financial
information, research projects, services used, pricing, customers, customer
lists and prospects, product sourcing, marketing and selling and servicing. The
Employee agrees that he will not, during his employment or subsequent to the
termination of employment, directly or indirectly, use, communicate, disclose or
disseminate to any person, firm or corporation any confidential information
regarding the clients, customers or business practices of the Company acquired
by the Employee during his employment by Company, without the prior written
consent of Company; provided, however, that the Employee understands that
Employee will be prohibited from misappropriating any trade secret at any time
during or after the termination of employment. At no time during the Employment
Term, or thereafter shall the Employee directly or indirectly, disparage the
commercial, business or financial reputation of the Company.
(b) In consideration of Company's hiring Employee, the payment by
the Company to the Employee as described below and for other good and valuable
consideration,
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the Employee hereby agrees that he shall not, during the Employment Term and for
a period of one (1) year following such employment (the "Restrictive Period"),
directly or indirectly, take any action which constitutes an interference with
or a disruption of any of the Company's business activities.
(c) For purposes of clarification, but not of limitation, the
Employee hereby acknowledges and agrees that the provisions of subparagraph 8(b)
above shall serve as a prohibition against him, during the Restrictive Period :
(1) directly or indirectly, contacting, soliciting or directing any
person, firm, or corporation to contact or solicit, any of the Company's
customers, prospective customers, or business partners for the purpose of
selling or attempting to sell, any products and/or services that are the
same as or similar to the products and services provided by the Company to
its customers during the Restrictive Period. In addition, the Employee
will not disclose the identity of any such business partners, customers,
or prospective customers, or any part thereof, to any person, firm,
corporation, association, or other entity for any reason or purpose
whatsoever; and
(2) directly or indirectly, engaging or carrying on in any manner
(including, without limitation, as principal, shareholder, partner,
lender, agent, employee, consultant, or investor (other than a passive
investor with less than a five percent (5%) interest) trustee or through
the agency of any corporation, partnership, limited liability company, or
association) in any business that is in competition with the engaged in
any business in competition with the business of the Company; and
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(3) soliciting on his own behalf or on behalf of any other person,
the services of any person who is an employee of the Employer, and
soliciting any of the Employer's employees to terminate employment with
the Employer.(d) Upon the termination of the Employee's employment for any
reason whatsoever, all documents, records, notebooks, equipment, price
lists, specifications, programs, customer and prospective customer lists
and other materials which refer or relate to any aspect of the business of
the Company which are in the possession or under the control of the
Employee including all copies thereof, shall be promptly returned to the
Company.(e) The parties hereto hereby acknowledge and agree that (i) the
Company would be irreparably injured in the event of a breach by the
Employee of any of his obligations under this Section 8, (ii) monetary
damages would not be an adequate remedy for any such breach, and (iii) the
Company shall be entitled to injunctive relief, in addition to any other
remedy which it may have, in the event of any such breach .
(f) The rights and remedies enumerated in Section 8(e) shall be
independent of the other, and shall be enforceable, and all of such rights and
remedies shall be in addition to, and not in lieu of, any other rights and
remedies available to the Company under law or in equity.
(g) If any provision contained in this Section 8 is hereafter
construed to be invalid or unenforceable, the same shall not affect the
remainder of the covenant or covenants, which shall be given full effect,
without regard to the invalid portions.
(h) If any provision contained in this Section 8 is found to be
unenforceable by reason of the extent, duration or scope thereof, or otherwise,
then the court
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making such determination shall have the right to reduce such extent, duration,
scope or other provision and in its reduced form any such restriction shall
thereafter be enforceable as contemplated hereby.
(i) It is the intent of the parties hereto that the covenants
contained in this Section 8 shall be enforced to the fullest extent permissible
under the laws and public policies of each jurisdiction in which enforcement is
sought (the Employee hereby acknowledging that said restrictions are reasonably
necessary for the protection of the Company). Accordingly, it is hereby agreed
that if any of the provisions of this Section 8 shall be adjudicated to be
invalid or unenforceable for any reason whatsoever, said provision shall be
(only with respect to the operation thereof in the particular jurisdiction in
which such adjudication is made) construed by limiting and reducing it so as to
be enforceable to the extent permissible, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of said
provision in any other jurisdiction.
9. Prior Agreements. This Agreement cancels and supersedes any and all
prior agreements and understandings between the parties hereto respecting the
employment of Employee by the Company.
10. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be delivered personally or sent by
registered or certified mail, return receipt requested, to the other party
hereto at his or its address as set forth in the beginning of this Agreement.
Either party may change the address to which notices, requests, demands and
other communications hereunder shall be sent by sending written notice of such
change of address to the other party in the manner above provided.
11. Assignability and Binding Effect. This Agreement shall inure to the
benefit of
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and shall be binding upon the executors, administrators, successors and legal
representatives of Employee and shall inure to the benefit of and be binding
upon the Company and its successors and assigns. The Employee may not delegate
or assign his duties or rights under this Agreement.
12. Waiver. Waiver by either party hereto of any breach or default by the
other party in respect of any of the terms and conditions of this Agreement
shall not operate as a waiver of any other breach or default, whether similar to
or different from the breach or default waived.
13. Complete Understanding: Amendment and Termination. This Agreement
constitutes the complete understanding between the parties with respect to the
employment of Employee hereunder and no statement, representation, warranty or
covenant has been made by either party with respect thereto except as expressly
set froth herein. This Agreement shall not be altered, modified, amended or
terminated except by written instrument signed by each of the parties hereto
provided, however, that the waiver by either party hereto of compliance with any
provision hereof or of any breach or default by the other party hereto need be
signed only by the party waiving such provision, breach or default.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which taken together
shall constitute one and the same Agreement.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Connecticut.
16. Paragraph Headings. The paragraph headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
17. Execution of Agreement. Employee shall execute this Agreement no later
than
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April 30, 1999. In the event Employee does not execute this Agreement by said
date, the non-signing of the Agreement constitutes Employee's choice to
terminate his employment with the Company.
18. Consideration. Employee hereby acknowledges and agrees that the
employment opportunity encompassed in this Agreement is contingent upon the
execution of this Agreement and that such employment, in addition to the mutual
promises herein, constitutes adequate consideration for this Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
XXXXX ONLINE, INC.
By: /s/ Xxxxx Xxxxxxxxxx
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Its: Chief Executive Officer
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Date: April 23, 1999
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/s/ Xxx Xxx
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Xxx Xxx
Date: April 23, 1999
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