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EXHIBIT 10.13
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the Agreement) is being made as of the 15th day of October
1999 between DATA BROADCASTING CORPORATION, a Delaware corporation (the
Company), having its principal offices at 0000 Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx
00000, and XXXXXX X. XXXXX (the Executive), an individual residing at 000 Xxxx
Xxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000.
WITNESSETH:
WHEREAS, the Company desires to employ the Executive and the Executive
desires to be employed by the Company as its Executive Vice President and Chief
Financial Officer upon the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual premises and agreements
contained herein, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Nature of Employment; Term of Employment. The Company hereby
employs the Executive and the executive agrees to serve the Company, upon
the terms and conditions contained herein, for a term commencing no later
than November 30, 1999 (the Effective Date) and continuing until June 30,
2002 (the Employment Term); provided, however, that the Employment Term
shall be extended to June 30, 2003, if, prior to December 31, 2000, a
Change in Control (as defined in Section 8 of this Agreement) shall occur.
2. Duties and Powers as Employee. During the Employment Term, the
Executive shall be employed by the Company as its Executive Vice President
and Chief Financial Officer. The Executive shall be responsible for finance
and administration. The Executive shall be based in the New York
Metropolitan Area. The Executive agrees to devote his full time and efforts
to the performance of his duties under this Agreement. In the performance
of his duties, the Executive shall be subject to the direction of and shall
report to the Chief Executive Officer of the Company. The Executive shall
be available to travel as the needs of the business require.
3. Compensation.
(a) As compensation for his services hereunder, the Company shall pay
the Executive, during the Employment Terms, a base salary (the Base Salary)
payable in equal semi-monthly installments at the minimum annual rate of
$300,000 through June 30, 2001 and $325,000 for the period July 1, 2001
through the expiration of the Employment Term. Such payments shall be
subject to withholding of all taxes payable
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with respect thereto and deductions for insurance contributions and the
like. Additionally, the Executive shall participate in the present or
future employee benefit plans of the Company provided that he meets the
eligibility requirements therefor.
(b) In addition to the Base Salary provided herein Executive is
eligible for a performance bonus payment (the Bonus), on an annual basis,
in a sum equal to up to 100% of the Executive's Base Salary paid for the
fiscal year then ended. The Company and Executive acknowledge that the
expected Bonus in each fiscal year is 50% of Base Salary paid (the Target
Bonus). One half of the Bonus shall be determined in the absolute and sole
discretion of the Compensation Committee of the Board of Directors of the
Company based upon an evaluation of the performance of the Executive and
the Company during the previous fiscal year. One half of such Bonus shall
be based upon financial criteria established at the commencement of each
fiscal year during the Employment Term. For the Company's fiscal year ended
June 30, 2000, such Bonus shall be no less than 50% of the Base Salary paid
to the Executive during such fiscal year. To the extent that the Company
determines to pay the Bonus to the Executive, the Bonus shall be paid to
the Executive within ninety (90) days after the end of the Company's fiscal
year notwithstanding that such date may be after the expiration of the
Employment Term.
(c) Effective as of the date of this Agreement, the Company shall
issue to the Executive a non-qualified stock option to acquire 120,000
shares of common stock of the Company. In addition, effective upon the
first anniversary of the date of this Agreement, the Company shall issue to
the Executive a non-qualified stock option to acquire 60,000 shares of
common stock of the Company. Each such option shall vest over a period of
three years and shall have an exercise price equal to the market price on
the date of grant.
(d) In the event the Executive's present employer requests him to
repay a loan given to him in connection with his relocation to the New York
Metropolitan Area, the Company shall pay the Executive a one time starting
bonus equal to the amount of such loan, but no greater than $25,000.
4. Expenses; Vacations. The Executive shall be entitled to
reimbursement for reasonable travel and other out-of-pocket expenses
necessarily incurred in the performance of his duties hereunder, upon
submission and approval of written statements and bills in accordance with
the then regular procedures of the Company. The Executive shall be entitled
to reasonable vacation time in accordance with then regular procedures of
the Company governing executives as determined form time to time by the
Company's Board of Directors but in no event less than twenty days per
year.
5. Representations and Warranties of Employee. The Executive
represents and warrants to the Company that (a) he is under no contractual
or other restriction or obligation which is inconsistent with the execution
of this Agreement, the performance of his duties hereunder, or the other
rights of the Company hereunder; and (b) he is under no physical or mental
disability that, with or without reasonable accommodation, would hinder his
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performance of duties under this Agreement.
6. Non-Competition. The Executive agrees that he will not (a) during
the period he is employed under this Agreement engage in, or otherwise
directly or indirectly be employed by, or act as a consultant or lender to,
be a director, officer, employee, owner, or partner of, any other business
or organization that is or shall then be competing with the Company, and
(b) for a period of two (2) years after he ceases to be employed by the
Company under this Agreement, directly or indirectly compete with or be
engaged in the same business as the Company, or be employed by, or act as
consultant or lender to, or be a director, officer, employee, owner, or
partner of, any business or organization which at the time of such
cessation, competes with or is engages in the same business as the Company,
except that in each case the provisions of this Section 6 will not be
deemed breached merely because the Executive owns not more than five
percent (5.0%) of the outstanding common stock of a corporation, if, at the
time of its acquisition by the Executive, such stock is listed on a
national securities exchange, is reported on NASDAQ, or is regularly traded
in the over-the-counter market by a member of national securities exchange.
7. Confidential Information. All confidential information which the
Executive may now possess, may obtain during the Employment Term, or may
create prior to the end of the period he is employed by the Company under
this Agreement, relating to the business of the Company or of any customer
or supplier of the Company shall not be published, disclosed, or made
accessible by him to any other person, form, or corporation during the
Employment Term or any time thereafter without the prior written consent of
the Company. The Executive shall return all tangible evidence of such
confidential information to the Company prior to or at the termination of
his employment.
8. Termination; Change in Control.
(a) Termination for Cause. Notwithstanding anything herein contained,
if on or after the date hereof and prior to the end of the Employment Term,
the Executive is terminated For Cause (as defined below), then the Company
shall have the right to give notice of termination of Executive's services
hereunder as of a date to be specified in such notice, and this Agreement
shall terminate on the date so specified. Termination For Cause shall mean
the Executive shall (i) be convicted of a felony crime, (ii) commit any act
or omit to take any action in bad faith and to the detriment of the
Company, (iii) commit an act or moral turpitude, (iv) commit an act of
fraud against the Company, or (v) materially breach any term of this
Agreement and fail to correct such breach within thirty (30) days after
commission thereof.
(b) Disability. In the event that the Executive shall be physically
or mentally incapacitated or disabled or otherwise unable fully to
discharge his duties hereunder, with or without reasonable accommodation,
for a period of six months, then this Agreement shall terminate upon 90
days written notice to the Executive.
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(c) Death. In the event that the Executive shall die, then this
Agreement shall terminate on the date of the Executive's death.
(d) Change in Control.
(i) For purposes of this Agreement, a Change in Control shall be
deemed to have occurred if:
(A) any person, as such term is used in Section 13(d) and 14(d)
of the Securities Exchange Act of 1934, as amended (the Exchange Act)
(other than (1) the Executive or Xxxxx X. Xxxxxxx or Xxxx X. Xxxxxxxxxxx;
(2) any trustee or other fiduciary holding securities under an employee
benefit plan of the Company or (3) any corporation owned, directly or
indirectly, by the stockholders of the Company in substantially the same
proportion as their ownership of Shares), is or becomes the beneficial
owner (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 50% or more of the
combines voting power of the Company's then outstanding voting securities;
(B) individuals who at the Effective Date constitute the Board,
and any new director whole election by the Board or nomination for election
by the Board or nomination for election by the Company's stockholders was
approved by a vote of at least two-thirds (2/3) of the directors then still
in office who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved, cease for
any reason to constitute at least a majority thereof;
(C) the stockholders of the Company approve a merger or
consolidation of the company with any other corporation, other than (1) a
merger or consolidation that would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving or parent entity outstanding immediately after
such merger or consolidation of (2) a merger or consolidation effect to
implement a re-capitalization of the Company (or similar transaction) in
which no person as hereinabove defined) acquires 50% or more of the
combined voting power of the Company's then outstanding securities;
(D) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by
the Company of all or substantially all of the Company's assets (or any
transaction having a similar effect).
(e) Effect of Termination or Change in Control.
(i) In the event that this Agreement is terminated pursuant to
Section 8(a), then the Executive shall be entitled to receive only
his Base Salary at the rate provided in Section 3 to the date on
which termination shall take effect.
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(ii) In the event that this Agreement is terminated by the
Company pursuant to Section 8(b) or 8(c), then the Executive, or the
Executive's beneficiary (as the case may be), shall be entitled to receive
his Base Salary at the rate provided in Section 3 to the date on which
termination shall take together with a lump sum distribution (with no
present value adjustment) equal to the Base Salary at the rate provided in
Section 3 for a period of six months. In such event then the Executive's
issued but unvested options shall vent immediately upon such termination.
The Executive, or the Executive's beneficiary (as the case may be), shall
have the right to exercise any stock option for a period of one year
following the date of termination, but in no event beyond the expiration
date of any such option.
(iii) In the event that this Agreement is terminated by the
Company for any reason other than pursuant to Section 8(a), (b) or (c),
then the Executive, or the Executive's beneficiary (as the case may be),
shall be entitled to receive his Base Salary at the rate provided in
Section 3 to the date on which termination shall take effect together with
a lump sum distribution (with no present value adjustment) equal to the
Base Salary and Target Bonus at the rate provided in Section 3 for a period
of the greater of one year or the balance of the Employment Term. In the
case of a Change in Control, any of the Executive's issued but unvested
options shall vest immediately upon such Change in Control. The Executive,
or the Executive's beneficiary (as the case may be), shall have the right
to exercise any stock option for a period of one year following the date of
termination, but in no event beyond the expiration date of any such option.
In addition, in such case the two (2) year period described in Section 6(b)
of this Agreement shall be reduced to one (1) year.
(f) Nothing contained in this Section 8 shall be deemed to limit
any other right the Company may have to terminate Employee's employment
hereunder upon any ground permitted by law.
9. Change of Control.
In the event of a future disposition of (or including) the properties
and business of the Company, substantially as an entirety, by merger,
consolidation, sale of assets, or otherwise, the Company shall assign this
letter and all of its rights and obligations hereunder to the acquiring or
surviving corporation, such corporation shall assume in writing all of the
obligations of the Company, and the Company (in the event and so long as it
remains in business as an independent going enterprise) shall remain liable
for the performance of its obligations hereunder in the vent of an
unjustified failure of the acquiring corporation to perform its obligations
under this letter.
10. Survival. The covenants, agreements, representations, and
warranties contained in or made pursuant to this Agreement shall survive
the Executive's
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termination of employment, irrespective of any investigation made by or on
behalf of any party.
11. Modification. This Agreement sets forth the entire understanding
of the parties with respect to the subject matter hereof, terminates and
supersedes all existing agreements (written, oral or otherwise) between
them concerning such subject matter, and may be modified only by a written
instrument duly executive by each party. The Executive acknowledges that no
other representations, oral or written, have been made regarding the
subject matter hereof, other than those explicitly provided herein. The
Executive further acknowledges that he has not relied on any oral or
written representations not explicitly contained herein in executing this
Agreement.
12. Notices. Any notice or other communication required or permitted
to be given hereunder shall be in writing and shall be mailed by certified
mail, return receipt requested, or delivered against receipt to the party
to whom it is to be given at the address of such party set forth in the
preamble to this Agreement (or to such other address as the party shall
have furnished in writing in accordance with the provisions of this Section
12). In the case of a notice to the Company, a copy of such notice (which
copy shall not constitute notice) shall be delivered to Camhy Karlinsky &
Xxxxx LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attn. Xxxx X.
Annex, Esq. Notice to the estate of the Executive shall be sufficient if
addressed to the Executive as provided in this Section 12. Any notice or
other communication given by certified mail shall be deemed given at the
time of certification thereof, except for a notice changing a party's
address which shall be deemed given at the time of receipt thereof.
13. Waiver. Any waiver by either party of a breach of any provision
of this Agreement shall not operate as or be construed to be a waiver of
any other breach of such provision or of any breach of any other provision
of this Agreement. The failure of a party to insist upon strict adherence
to any term of this Agreement on one or more occasions shall not be
considered a waiver or deprive that party of the right thereafter to insist
upon strict adherence to that term or any other term of this Agreement. Any
waiver must be in writing.
14. Binding Effect. The Executive's rights and obligations under this
Agreement shall not be transferable by assignment or otherwise, such rights
shall not be subject to encumbrance or the claims of the Executive's
creditors, an any attempt to do any of the foregoing shall be void. The
provisions of this Agreement shall be binding upon and inure to the benefit
of the Executive and his heirs and personal representatives, shall be
binding upon and inure to the benefit of the Company and its successors and
those who are its assigns under Section 9.
15. Headings. The headings in this Agreement are solely for the
convenience of reference and shall be given no effect in the construction
or interpretations of this Agreement.
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16. Counterparts: Governing Law. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. It shall be
governed by, and construed in accordance with, the laws of the State of Wyoming,
without giving effect to the rules governing the conflicts of laws.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first written above.
DATA BROADCASTING CORPORATION
BY:/s/ Xxxx X. Xxxxxxxxx
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NAME: XXXX X. XXXXXXXXX
TITLE: PRESIDENT
/s/ Xxxxxx X. Xxxxx
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XXXXXX X. XXXXX
