THESTREET.COM, INC. EMPLOYMENT AGREEMENT
XXXXXXXXX.XXX,
INC.
EMPLOYMENT
AGREEMENT (this “Employment Agreement"), dated as of August 2007, by and between
XxxXxxxxx.xxx, Inc., a Delaware corporation (the "Company" or "XxxXxxxxx.xxx''),
and Xxxxx Xxxxxx ("Xxxxxx").
WHEREAS,
the Company desires that Xxxxxx enter into this Employment Agreement, and
Xxxxxx
desires to enter into this Employment Agreement, on the terms and conditions
set
forth herein;
NOW
THEREFORE, the parties hereto agree as follows:
Section
1. Duties and Term.
The
Company agrees to employ Xxxxxx and Xxxxxx agrees to be so employed in the
position of Editor-in-Chief. Xxxxxx agrees to perform such duties, functions
and
responsibilities as are generally incident to such position (which shall
include
all of the Company’s editorial content, including multimedia, and such content
as is added to the Company’s business during the Term) reporting to and subject
to the direction of the Chief Executive Officer; for a period commencing
on
August 23, 2007 (the “Commencement Date") and ending on August 23, 2009, unless
sooner terminated in accordance with Section 4 hereof. The Employment Agreement
shall be renewed automatically for an additional one-year period unless the
Company or Xxxxxx gives notice to the other party hereto not less than ninety
(90) days prior to August 23, 2009 of its or his election not to re-new the
Employment Agreement, in which event the Employment Agreement shall ter-minate
on such date. The period of employment under this Employment Agreement, as
renewed or earlier terminated pursuant to Section 4 below, shall be referred
to
in this Employment Agreement as the “Term.” Xxxxxx agrees to perform faithfully
the duties assigned to him pursuant to this Employment Agreement to the best
of
his abilities and to devote all of his business time and attention to the
Company's business, Xxxxxx shall be subject to all 1aws, rules, regulations
and
policies as are from time to time applicable to employees of the Company
and of
which he has received written notice including XxxXxxxxx.xxx's Policy on
Investments, and will be required to comply fully with the provisions of
all
such written supervisory procedures and other relevant securities and
disciplinary policies relevant to his position with the Company.
Section
2. Compensation.
(a)
Annual
Salary.
As
compensation for his services hereunder, during the Term the Company shall
pay
to Xxxxxx a salary of not less than Two Hundred and Thirty-Five Thousand
Dollars
($235,000) per annum, payable in accordance with the Company's
standard payroll policies, and less all applicable federal, state and local
withholding
taxes (the "Annual Salary"). The Annual Salary shall be reviewed at least
annually during the Term at the end of each calendar year and may be increased
in the sole discretion
of the Company's Chief Executive Officer and the Compensation Committee of
the
Company's Board of Directors (the "Board"); taking into consideration both
the
Company's and Xxxxxx'x performance during the preceding year.
1
(b)
Bonus.
Except
as set forth in Section 4 hereof, in addition to the Annual Salary, Xxxxxx
shall
be entitled to receive additional bonus compensation under the Company's
2007
Performance Incentive Plan (the "Plan"), payable at year end or shortly
thereafter, which may be cash and/or equity compensation, for his employment
during each calendar year of the Term (the "Annual Bonus"). Xxxxxx'x Annual
Bonus will be calculated in accordance with the formulas specified in the
Agreement for Grant of Cash Performance Award Under 2007 Performance Incentive
Plan which is attached hereto as Exhibit
A and incorporated herein by reference.
Each
calendar year of the Term the Company will issue a new Agreement for Grant
of
Performance Based Award as determined by the Compensation Committee of the
Board
of Directors. Nothing contained in this paragraph shall deprive Xxxxxx any
rights otherwise specified in the Plan.
(c)
In
addition to the Annual Salary and the Annual Bonus, Xxxxxx may, in the
discretion of the Compensation Committee of the Company's Board of Directors,
be
granted awards under the Plan on an annual or other basis as compensation
for
the performance of his services hereunder.
Section
3.
Benefits:
Expense Reimbursement.
During
the Term, Xxxxxx shall be eligible to participate in any group insurance,
accident, sickness and hospitalization insurance, and any other employee
benefit
plans of the Company in effect during the Term and available to the Company's
executive officers, and Xxxxxx shall have the right to reimbursement upon
proper
accounting, of reasonable expenses and disbursements incurred by him in the
course of his duties hereunder. In addition. during each year of the Term,
Xxxxxx shall be entitled to four (4) weeks of paid vacation and personal
and
sick days in accordance with the Company’s policy or customary practices
applicable to executive officers.
Section
4.
Employment
Termination.
(a)
At
any time during the Term, and except as otherwise provided in Sec-tions 4(b)
and
4(c) hereof the Company shall only have the right to terminate this Em-ployment
Agreement and Xxxxxx’x employment with the Company hereunder, upon written
notice to Xxxxxx, in the event Xxxxxx engages in conduct which constitutes
“Cause." For purposes of this Employment Agreement, Cause shall mean (i)
Xxxxxx'x willful misconduct or gross negligence in the performance of his
obligations under this Employment Agreement, (ii) dishonesty or misappropriation
by Xxxxxx relating to the Company or any of its funds, properties, or other
assets, (iii) unexcused, repeated or prolonged absence from work by Xxxxxx
(other than as a result of, or in connection with, a disability or other
permitted cause), (iv) any unauthorized disclosure by Xxxxxx of confidential
or
proprietary information of the Company, which is reasonably likely to result
in
material harm to the Company, (v) a conviction of Xxxxxx (including entry
of a
guilty or nolo contendere plea) involving fraud, dishonesty, moral turpitude,
or
involving a violation of federal or state securities laws or (vi) other breach
by Xxxxxx of this Employment Agreement and such failure or breach is not
cured,
to the extent cure is possible, by Xxxxxx within thirty (30) days after receipt
of written notice thereof from the Company to Xxxxxx or, if cure is not
practicable within such period, if Xxxxxx does not commence such cure and
complete the same in a reasonable time. If this Employment Agreement and
Xxxxxx'x employment with the Company hereunder is terminated for Cause, or
if
Xxxxxx voluntarily resigns from the Company without Good Reason during the
Term,
the Company shall pay Xxxxxx an amount equal to all earned but unpaid portions
of the Annual Salary, unused vacation days and any amounts equal to the short
term bonus compensation awards under the Plan that were calculated and
communicated as final to Xxxxxx through the date of termination, and following
any such termination, Xxxxxx shall not be entitled to receive any other
compensation or benefits from the Company hereunder.
(b)
This
Employment Agreement and Xxxxxx'x employment with the Company hereunder may
also
be terminated by the Company without Cause, or by Xxxxxx upon the occurrence
of
an event constituting Good Reason. For purposes of this Employment Agreement,
"Good Reason" shall mean (i) the failure of the Company to cure a material
adverse change made by it in Xxxxxx'x functions, duties or responsibilities
in
his positions with the Company as provided in this Employment Agreement,
or (ii)
a reduction in the Annual Salary during the Term, or (iii) the failure of
the
Company to cure any other material breach of this Employment Agreement, or
(iv)
in connection with the occurrence of a Change of Control, there is a significant
reduction of Xxxxxx'x authority, duties or responsibilities relative to his
authority, duties or responsibilities in effect immediately prior to such
reduction; provided.
however,
that the
foregoing provision shall not include a reduction in duties or responsibilities
solely by virtue of the Company being acquired and made part of a larger
entity
(as, for example, if Xxxxxx is not appointed as Editor-in-Chief of the acquiring
corporation, but continues to have a substantially similar scope and level
of
responsibility over the affairs of the Company following such Change of
Control), or (v) Xxxxxx'x relocation by the Company or a successor thereto
to a
location more than fifty (50) miles from either the Company's current
headquarters or Xxxxxx'x home address in Brooklyn, New York, provided
that, in
the
case of (i), (ii), or (iii) above, the Company has failed to cure the event
constituting Good Reason within thirty (30) days following written notice
thereof from Xxxxxx.
2
In
the
event that Xxxxxx'x employment is terminated by the Company without Cause,
or by
Xxxxxx with Good Reason, then the Company shall pay or provide to Xxxxxx,
as his
sole
and
exclusive remedy hereunder, upon delivery by Xxxxxx to the Company of a
customary release, including a non-defamation provision, (A) an amount equal
to
all earned but unpaid portions of the Annual Salary, unused vacation days
and
any amounts equal to the short term bonus compensation awards under the Plan
that were calculated and communicated as final to Xxxxxx through the date
of
termination, (B) group life, disability, sickness, hospitalization and accident
insurance benefits equivalent to those to which Xxxxxx would have been entitled
if he had continued working for the Company for the greater of the balance
of
the Term or an additional twelve (12) month period, and (C) the Annual Salary
to
the same extent to which Xxxxxx would have been entitled if he had continued
working for the Company for the greater of the balance of the Term and an
additional twelve (12) month period. Notwithstanding the provisions of Section
1
above, the “balance of the Term” as used in this paragraph shall mean the
original Term as renewed or extended without regard to the termination provided
for herein.
The
benefits continuation and salary payments provided for above shall be contingent
upon
Xxxxxx'x continued compliance with Sections 5 and 6 hereof and, after the
twelfth (12) month of the severance period shall be reduced, if any severance
payments remain by the corresponding benefits amounts and amounts of cash
compensation and any publicly traded or freely tradable securities compensation
(including, without limitation, securities that will become freely tradable
after a restrictive or vesting period) actually received by Xxxxxx after
the
twelfth (12) month of the severance period. Additionally, the benefits
continuation provided for in (B) above shall terminate upon Xxxxxx'x becoming
eligible for corresponding benefits in connection with new employment. Except
as
set forth above, Xxxxxx shall not be entitled to receive any other compensation
or benefits from the Company hereunder.
(c)
This
Employment Agreement and Xxxxxx'x employment with the Company hereunder shall
terminate immediately and automatically upon (i) the death or Disability
(as
defined below) of Xxxxxx, (ii) the liquidation or dissolution of the Company
or
other shutdown of the business then conducted by the Company, or (iii) the
expiration of the Term. For purposes of this Employment Agreement, "Disability"
shall mean physical or mental incapacity of a nature which prevents Xxxxxx,
in
the good faith and reasonable judgment of the Company's Board of Directors,
from
performing his duties under this Employment Agreement for a period of 90
consecutive days or 150 days during any year with each year under this
Employment Agreement commencing on each anniversary of the date hereof. If
this
Employment Agreement and Xxxxxx'x employment with the Company hereunder is
terminated on account of (i) or (ii) above, then the Company shall pay Xxxxxx,
or his estate, conservator or designated beneficiary, as the case may be,
an
amount equal to (A) all earned but unpaid portions of the Annual Salary,
unused
vacation days and any amounts equal to the short term bonus compensation
awards
under the Plan that were calculated and communicated as final to Xxxxxx through
the date of termination, and following any such termination, neither Xxxxxx,
nor
his estate, conservator or designated beneficiary, as the case may be, shall
be
entitled to receive any other compensation or benefits from the Company
hereunder.
3
(d)
Upon
the termination of this Employment Agreement pursuant to Section 4 hereof
the
Company shall have no further obligations under this Employment Agreement;
provided,
however, that
Sections 5 through 8 hereof shall survive and remain in full force and
effect.
Section
5. Non-Competition. Except
in
the event of a termination of Xxxxxx'x employment hereunder by the Company
without Cause or by Xxxxxx for Good Reason:
(a)
Xxxxxx hereby agrees that, during the period from the Commencement Date through
the end of the first twelve (12) months after the cessation of Xxxxxx'x
employment with the Company, he will not engage in "Competition" with the
Company. For
purposes of this Employment Agreement, Competition by Xxxxxx shall mean Xxxxxx’x
engaging in, or otherwise directly or indirectly being employed by or acting
as
a consultant or lender to, or being a director, officer, employee, principal,
agent, stockholder, member, owner or partner of, or permitting his name to
be
used in connection with the activities of any other business or organization
anywhere in the United States, or
in any
other geographic area in which the Company operates or with respect to
which
the
Company provides financial news and commentary coverage (or from which such
other business or organization provides financial news and commentary coverage
of the United States), which engages
in a business that competes with any business in which the Company or any
subsidiary is engaged (a
“Competing Business”);
provided
however, that,
notwithstanding the foregoing, it shall not be a violation of this Section
5(a)
for Xxxxxx to become the registered or beneficial Owner of up to three percent
(3%) of any class of the capital stock of a competing corporation registered
under the Securities Exchange Act of 1934, as amended, provided that Xxxxxx
does
not otherwise participate in the business of such corporation.
(b)
Xxxxxx hereby agrees that, during the period from the Commencement Date through
the end of the first twelve (12) months after the cessation of Xxxxxx'x
employment with the Company, he will not solicit for employment or hire,
in any
business enterprise or activity, any person who was employed by the Company
during the Term.
Section
6. Confidentiality and Intellectual Property.
(a)
Except as otherwise provided in this Employment Agreement, at all times during
and after the Term, Xxxxxx shall keep secret and retain in strictest confidence,
any and all confidential information relating to the Company, and shall use
such
confidential information only in furtherance of the performance by him of
his
duties to the Company and not for personal benefit or the benefit of any
interest adverse to the Company's interests. For purposes of this Employment
Agreement, "confidential information" shall mean any information, including,
without limitation, plans, specifications, models, samples, data, customer
lists
and customer information, computer programs and documentation, and other
technical and/or business information, in whatever form, tangible or intangible,
that can be communicated by whatever means available at such time, that relates
to the Company’s current business or future business contemplated during the
Term, or that relates to the products or services offered or contemplated
during
the Term to be offered by the Company or the development thereof and any
information received from others that the Company is obligated to treat as
confidential or proprietary provided
that such
confidential information shall not include any information that (a) has become
generally available to the public other than as a result of a disclosure
by
Xxxxxx, or (b) was available to or became known to Xxxxxx prior to the
disclosure of such information on a non-confidential basis without, to Xxxxxx’x
knowledge, breach of any duty of confidentiality from any party to the Company,
and shall not disclose such confidential information to any Person other
than
the Company, except as may be required by law or court or administrative
order
(in which event Xxxxxx shall so notify the Company as
promptly
as practicable). Upon termination of the Term for any reason, Xxxxxx shall
return to the Company all copies, reproductions and summaries of confidential
information in his possession and erase the same from all media in his
possession, and, if the Company so requests, shall certify in writing that
he
has done so. All confidential information is and shall remain the property
of
the Company as applicable (or, in the case of information that the Company
received from a third party which it is obligated to treat as confidential,
then
the property of such third party).
4
(b)
All
Intellectual Property (as hereinafter defined) and Technology (as hereinafter
defined) created, developed, obtained or conceived of by Xxxxxx during the
Term,
and
all business opportunities presented to Xxxxxx during the Term, shall be
owned
by and belong exclusively to the Company, provided that they reasonably and
principally relate to any of the business of the Company on the date of such
creation, development, obtaining or conception, and Xxxxxx shall (i) promptly
disclose any such Intellectual Property, Technology or business opportunity
to
the Company, and (ii) execute and deliver to the Company, without additional
compensation, such instruments as the Company may require from time to time
to
evidence its ownership of any such Intellectual Property, Technology or business
opportunity. For purposes of this Employment Agreement, the term "Intellectual
Property" means and includes any and all trademarks, trade names, service
marks,
service names, patents, copyrights, and applications therefore, and the term
"Technology” means and includes any and all trade secrets, proprietary
information, inventions, discoveries, know-how, formulae, processes and
procedures.
Section
7.
Covenants
Reasonable.
The
parties acknowledge that the restrictions contained in Sections 5 and 6 hereof
are a reasonable and necessary protection of the immediate interests of the
Company, and any violation of these restrictions would cause substantial
injury
to the Company and that the Company would not have entered into this Employment
Agreement, without receiving the additional consideration offered by Xxxxxx
in
binding himself to any of these restrictions. In the event of a breach or
threatened breach by Xxxxxx of any of these restrictions, the Company shall
be
entitled to apply to any court of competent jurisdiction for an injunction
restraining Xxxxxx from such breach or threatened breach; provided
however. that
the
right to apply for an injunction shall not be construed as prohibiting the
Company from pursuing any other available remedies for such breach or threatened
breach.
Section
8. No Third Party Beneficiary.
This
Employment Agreement is not intended and shall not be construed to confer
any
rights or remedies hereunder upon any Person, other than the parties hereto
or
their
permitted assigns. "Person" shall mean an individual, corporation, partnership,
limited liability company, limited liability partnership, association; trust
or
other unincorporated organization or entity.
Section
9.
Notices.
Unless
otherwise provided herein, any notice; exercise of rights or other communication
required or permitted to be given hereunder shall be in writing and shall
be
given by overnight delivery service such as
Federal
Express, telecopy (or like transmission) or personal delivery against receipt,
or mailed by regjstered or certified mail (return receipt requested), to
the
party to whom it is given at such party's address set forth below such party's
name on the signature page or such other address as such party may hereafter
specify by notice to the other party hereto. Any notice or other communication
shall be deemed to have been given as of the date so personally delivered
or
transmitted by telecopy or like transmission or on the next business day
when
sent by overnight delivery service.
Section
10. Representations.
The
Company hereby represents and warrants that the execution and delivery of
this
Employment Agreement and the performance by the Company of its obligations
hereunder have been duly authorized by all necessary corporate action of
the
Company.
Section
11. Amendment.
This
Employment Agreement may be amended only by a written agreement signed by
the
parties hereto.
5
Section
12. Assignment, Delegation
and
Binding
Effect.
Neither
party may assign any of its rights or delegate any performance under this
Employment Agreement without the prior written consent of the other, provided,
however, that, subject to the following paragraph, the Company may assign
this
Employment Agreement without Xxxxxx'x prior written consent (i) in connection
with any merger, consolidation, any sale of all or substantially all of the
Company's assets or any other transaction in which more than fifty percent
(50%)
of the Company's voting securities are transferred; or (ii) to any subsidiary,
affiliate, joint venture, partnership or limited liability company in which
the
Company has a majority interest. Any purported assignment of rights or
delegation of per-formance in violation of this Section is void. None of
Xxxxxx'x rights under this Employment Agreement shall be subject to any
encumbrances or the claims of Xxxxxx'x creditors.
This
Employment Agreement shall bind and benefit the Company and any successor
organization which shall succeed to the Company by merger or consolidation
or
operation of law, or by acquisition of all or substantially all of the assets
of
the Company (provided that a successor by way of acquisition of assets shall
have undertaken in writing to assume the obligations of the Company
hereunder).
Section
13. Governing Law.
This
Employment Agreement shall be governed by and construed in accordance with
the
internal laws of the State of New York applicable to contracts to be performed
wholly within the state and without regard to its conflict of laws
provisions.
Section
14. Severabi1ity.
If
any
provision of this Employment Agreement, including those contained in Sections
5
and 6 hereof, shall for any reason be held invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions hereof
shall not be affected or impaired thereby. Moreover, if any one or more of
the
provisions of this Employment Agreement, including those contained in Sections
5
and 6 hereof, shall be held to be excessively broad as to duration, activity
or
subject, such provisions shall be construed by limiting and reducing them
so as
to be enforceable to the maximum extent allowable by applicable law. To the
extent permitted by applicable law, each party hereto waives any provision
of
law that renders any provision of this Employment Agreement invalid, illegal
or
unenforceable in any way.
Section
15. Execution in Counterparts.
This
Employment Agreement may be executed in one or more counterparts, each of
which
shall be deemed to be an original and all of which shall constitute one
and
the same instrument.
Section
16. Entire Agreement.
This
Employment Agreement, together with Exhibit A, sets forth the entire agreement,
and supersedes all prior agreements and understandings, both written and
oral,
between the parties with respect to the subject matter hereof and
thereof.
Section
17. Titles and Headings.
Titles
and headings to Sections herein are for purposes of reference only, and shall
in
no way limit, define or otherwise affect the meaning or interpretation of
any of
the provisions of this Employment Agreement.
6
Section
18. Conflicts of Interest.
Xxxxxx
specifically covenants, warrants and represents to the Company that he has
the
full, complete and entire right and authority to enter into this Employment
Agreement that he has no agreement, duty, commitment or responsibility of
any
kind or nature whatsoever with any corporation, partnership, firm, company,
joint venture or other entity or other Person which would conflict in any
manner
whatsoever with any of his duties, obligations or responsibilities to the
Company pursuant to this Employment Agreement that he is not in possession
of
any document or other tangible property of any other Person of a confidential
or
proprietary nature which would conflict in any manner whatsoever with any
of his
duties, obligations or responsibilities to the Company pursuant to his
Employment Agreement, and that he is fully ready, willing and able to perform
each and all of his duties, obligations and responsibilities to the Company
pursuant to this Employment Agreement.
Section
19. Consent to Jurisdiction.
Xxxxxx
and the Company each hereby irrevocably submits to the jurisdiction of any
New
York State or Federal court sitting in the City of New York in any action
or
proceeding to enforce the provisions of this Employment Agreement; and waives
the defense of inconvenient forum to the maintenance of any such action or
proceeding.
Section
20. Section 409A.
(a)
Notwithstanding any provision of this Employment Agreement to the contrary,
if
Xxxxxx is a "specified employee" as defined under Section 409A ("Section
409A")
of the Internal Revenue Code of 1986, as amended or any regulations or Treasury
guidance promulgated thereunder, Xxxxxx shall not be entitled to any payments
upon a termination of his employment until the earlier of (i) the date which
is
six months after his termination of employment for any reason other than
death
or (it) the date of his death. The provisions of this Section 20(a) shall
only
apply if required to comply with Section 409A.
(b)
If any
provision of this Employment Agreement (or of any award of compensation,
including equity compensation or benefits) would cause Xxxxxx to incur any
additional tax or interest under Section 409A, the parties agree to negotiate
in
good faith to reform such provision in such manner as to maintain, to the
maximum extent practicable, the original intent and economic terms of the
applicable provision without violating the provisions of Section
409A.
7
IN
WITNESS WHEREOF, the undersigned have executed this Employment Agreement
as of
the date first written xxxxx.XX.
|
/s/
Xxxxx Xxxxxx
|
|
|
Xxxxx
Xxxxxx
|
|
|
000
Xxxxxxxxx Xxxxxx Xxxxx Xxx. #0
|
|
|
Xxxxxxxx,
XX 00000
|
|
|
XXXXXXXXX.XXX.
INC.
|
|
|
|
|
| By: | /s/ Xxxxxx X. Xxxxxx, Xx. |
|
Xxxxxx
X. Xxxxxx, Xx.
|
|
|
Chief
Executive Officer
|
|
|
00
Xxxx Xxxxxx
|
|
|
00xx Xxxxx
|
|
|
Xxx
Xxxx. XX 00000 Telephone
|
|
|
No.:
(000) 000-0000 Fax No.: (000)
000-0000
|
|
