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EXHIBIT 10.32
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement"), is made by and
between YELLOWBRIX, INC., a Delaware corporation, having its principal office
at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Company"), and ▇▇▇▇▇ ▇▇▇▇▇ ("Executive").
The parties hereto agree as follows:
1. Employment, Duties and Acceptance.
(a) The Company hereby employs Executive for the Term (as defined below)
and Executive agrees to be employed by and render services to the Company for
the Term, as Chief Business Officer and to perform such duties commensurate
with such office as he shall reasonably be directed by his direct supervisor
to perform. Executive shall report directly to the Chief Executive Officer of
the Company, or, such other person as may be designated from time to time by
the Chief Executive Officer of the Company.
(b) Executive agrees to devote his entire working business time,
attention and energies to the performance of the business of the Company, and
Executive shall not, directly or indirectly, alone or as a member of any
partnership or other organization, or as an officer, director or employee of
any other corporation, partnership or other organization, be actively engaged
in or concerned with any other duties or pursuits which are contrary to the
best interests of the Company, except those duties or pursuits specifically
authorized by his direct supervisor and except those duties or pursuits on
behalf of organizations that are unrelated to the Company's business, including
without limitation organizations that are focused on charitable, educational,
scientific, literary, community or family related matters.
(c) The principal place of employment of Executive hereunder shall at all
times be in the greater Washington, D.C. metropolitan area, or other locations
mutually acceptable to Executive and the Company. Executive understands and
agrees that he may be required to travel from time to time from the Company's
current principal office in Alexandria, Virginia, to other locations for
business reasons.
(d) Executive hereby accepts such employment and agrees to render the
services described above and abide by the terms of this Agreement.
2. Term of Employment.
Subject to the terms and conditions of this Agreement, including Section 8
hereof, Executive's employment under this Agreement will be deemed to have
commenced on November 1, 2000 (the "Commencement Date") and shall continue
until his employment is terminated as set forth in Section 8 of this Agreement
or ending on the third anniversary of the Commencement Date. The period of
employment shall be referred to as the "Term." The Term shall automatically be
renewed for an additional one-year period commencing on the second
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anniversary of the Commencement Date, unless either the Company or the
Executive gives the other at least 60 days written notice prior to the
expiration of the Term of its desire to terminate this Agreement.
3. Compensation and Benefits.
(a) As compensation for services to be rendered under this Agreement,
Company agrees to pay Executive during the Term a base salary at an annual rate
of One-Hundred and Eighty Thousand and 00/100 Dollars ($180,000.00) ("Base
Salary"), to be paid on a semi-monthly basis. From time to time, the Executive
Committee or the Board of Directors shall consider, in its sole and absolute
discretion, any appropriate adjustments to Executive's Base Salary.
(b) In addition to the Base Salary, Executive will be eligible to earn
incentive bonus compensation (commencing with the Company's fiscal year ending
December 31, 2000) based on terms agreed to (including the existing monthly
commission plan and any future amendments thereto) by Executive and the Company
(the "Incentive Bonus"), subject to the terms and conditions of this
paragraph. Within 30 days after the end of each fiscal year during the Term in
which services are rendered hereunder, the Company will grant and pay Executive
any earned Incentive Bonus. Each annual Incentive Bonus will be earned and
payable based on the Company's fiscal year-end. Therefore, if the Commencement
Date or Termination Date (as defined herein) of this Agreement occurs during
the Company's fiscal year, the earned Incentive Bonus for the first and last
years of the Term of this Agreement will be prorated based upon the number of
days the Executive rendered services during such year. Executive shall be
deemed to have earned all or a portion of his Incentive Bonus, if he achieves
specific, written annual performance objectives developed and agreed upon by
Executive and his direct supervisor after the Commencement Date and prior to
the end of each fiscal year.
(c) From time to time, the Executive Committee of the Company shall
consider, in its sole and absolute discretion, the extent to which Executive
shall be entitled to receive any additional bonus payments from the Company for
services rendered under this Agreement, which bonus payments may consist of any
combination of cash, securities, stock options or other consideration in amounts
and subject to terms and conditions determined by the Executive Committee.
(d) The Company shall pay or reimburse Executive for all reasonable and
necessary travel, entertainment and other business expenses actually incurred
or paid by him in the performance of services for the Company under this
Agreement, upon presentation of expense statements of vouchers and such other
supporting information as the Company may reasonably require of Executive in
accordance with the expense reimbursement policy of the Company.
(e) Executive shall be eligible to participate in any medical, dental,
and vision insurance plans, short-term disability, long-term disability, and
group life/accidental death and disability insurance coverage, employee benefit
plans, and any other welfare benefit or "fringe" benefit plans currently
offered by the Company to its executives and employees. The Company
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reserves the right to revise the coverage and benefits at any time and/or
require employee contributions relating to such coverage or plans. The terms
and conditions of any insurance coverage and benefits provided to or on behalf
of the Company's employees shall be subject to terms and conditions and the
policies and procedures set forth in the Company's Employee Handbook
(incorporated herein by reference).
(f) Executive shall be entitled to three weeks paid vacation per year
(after six months of continuous employment), in accordance with the vacation
policy of the Company as set forth in the Company's Employee Handbook. In
addition, Executive shall be entitled to one week of sick leave per year, in
accordance with the sick leave policy of the Company as set forth in the
Company's Employee Handbook.
(g) Executive shall be entitled to indemnification for liability arising
pursuant to work performed within the scope of his employment with the
Company. This indemnification provision shall be governed by and limited to
the indemnification provisions of the Company's Bylaws or Articles of
Incorporation.
4. Stock Options; Parachute Payments.
(a) As additional compensation for services to be rendered under this
Agreement, Executive is entitled to participate in the Company's Amended 1998
Stock Option Plan, as amended ("1998 Plan"), pursuant to which the Company has
already granted stock options to purchase 230,000 shares of common stock of the
Company, par value $.001 per share ("Common Stock") at an exercise price of
$3.72 per share. The foregoing options shall be subject to the terms and
conditions of the 1998 Plan and stock option agreements previously executed by
Executive and the Company.
(b) Notwithstanding any other provision of this Agreement or of any other
agreement, contract, or understanding heretofore or hereafter entered into by
Executive with the Company, or any subsidiary or Affiliate thereof, except an
agreement, contract, or understanding hereafter entered into that expressly
modifies or excludes application of this paragraph (an "Other Agreement"), and
notwithstanding any formal or informal plan or other arrangement for the direct
or indirect provision of compensation to Executive (including groups or classes
of beneficiaries of which Executive is a member), whether or not such
compensation is deferred, is in cash, or is in the form of a benefit to or for
Executive (a "Benefit Arrangement"), if Executive is a "disqualified
individual," as defined in Section 280G(c) of the Internal Revenue code of
1986, as amended, any option held by Executive and any right to receive any
other option, payment, stock, stock appreciation right, or other benefit under
this Agreement, the 1998 Plan or any Other Agreement or Benefit Arrangement
shall not become exercisable of vested (i) to the extent that such right to
exercise, vesting, payment, or benefit, taking into account all other
rights, payments, or benefits to or for Executive under this Agreement, all
Other Agreements, and all Benefit Arrangements, would cause any payment or
benefit to Executive under this Agreement, the 1998 Plan or the 2000 Plan to be
considered a "parachute payment" within the meaning of Section 280G(b)(2) of the
Code as then in effect (a "Parachute Payment") and (ii) if, as a result of
receiving a Parachute Payment, the aggregate after-tax amounts received by
Executive from the Company under this Agreement, all
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Other Agreements, and all Benefit Arrangements would be less than the maximum
after-tax amount that could be received by the Grantee without causing any such
payment or benefit to be considered a Parachute Payment. In the event that the
receipt of any such right to exercise, vesting, payment, or benefit under this
Agreement, the 1998 Plan or the 2000 Plan, in conjunction with all other rights,
payments, or benefits to or for Executive under any Other Agreement or any
Benefit Arrangement would cause Executive to be considered to have received a
Parachute Payment under This Agreement, the 1998 Plan or the 2000 Plan that
would have the effect of decreasing the after-tax amount received by Executive
as described in clause (ii) of the preceding sentence, then Executive shall
have the right, in the Executive's sole discretion, to designate those rights,
payments, or benefits under this Agreement, any Other Agreements, and any
Benefit Arrangements that should be reduced or eliminated so as to avoid having
the payment or benefit to Executive under this Agreement, the 1998 Plan or the
2000 Plan be deemed to be a Parachute Payment.
5. Confidentiality
(a) Executive shall not, while an employee of the Company, or for a
period of four (4) years following termination of this Agreement, directly
or indirectly, disclose or permit to be known, other than (i) as is
reasonably required in the regular course of his duties, including
disclosures to the Company's advisors and consultants, (ii) as required by
law (in which case Executive shall give the Company prior written notice of
such required disclosure) or (iii) with the prior written consent of the
Company's Chief Financial Officer or the Chief Executive Officer, to any
person, firm or corporation any confidential information relating to the
Company's business or activities, which information is not in the public
domain, or generally known in this industry, and, in either case, is a trade
secret of the Company, in any form acquired by Executive during the course
of, or as an incident to, his employment with the Company or any predecessor
to the Company's business or the rendering of services hereunder, and
relating to the Company, any subsidiaries or other Affiliates (as defined
below) thereof, any client, investor, corporate partner or joint venturer of
the Company or any of its subsidiaries, or any corporation, partnership or
other entity owned or controlled, directly or indirectly, by the Company,
any subsidiaries or other Affiliates thereof or, to the knowledge of
Executive, any of the other persons or entities listed above, or in which
the Company, any subsidiaries or other Affiliates thereof or, to the
knowledge of Executive, any of the other persons or entities listed above,
has a beneficial interest. Such information may include, but shall not be
limited to, business or legal affairs, business plans, financial statements,
projections or forecasts, proprietary technology, research and development
data, know-how, internally developed market studies and forecasts, Company
competitive analyses, Company pricing policies, Company employee lists,
Company personnel policies, contracts or the substance of agreements with
Company customers, suppliers and others, Company customer lists and any
other documents embodying such confidential information. This
confidentiality obligation shall not apply to any information which becomes
publicly available, was generally known in the industry or was known to the
recipient other than pursuant to a breach of this Section 5 by Executive.
(b) All information and documents embodying trade secrets of the
Company and any subsidiaries or other Affiliates thereof as described above
shall be the exclusive property of the Company, and, upon termination of
Executive's employment with the Company, all documents,
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records, reports, writings and other similar documents containing confidential
information, including copies thereof in written form or in any other for of
media, then in Executive's possession or control shall be returned to and left
with the Company.
6. Noncompetition; Nonintervention
(a) Executive shall not during the Term and for a one-year period
after the Termination Date (the "Restricted Period"), directly or indirectly, as
owner, partner, joint venturer, stockholder, employee, broker, agent, principal,
trustee, corporate officer, director, licensor, or in any capacity whatsoever
engage in, become financially interested in, be employed by, render any
consultation or business advice with respect to, or have any connection with any
business which is in direct competition with the Company in the Company's Field
of Interest (as defined below) anywhere in the United States, so long as and to
the extent that the loyal and complete fulfillment of the duties Executive would
be required to undertake in such circumstances would call upon Executive to
reveal, to make judgments on or otherwise to use Confidential Information of the
Company to which Executive had access by reason of his employment by Company.
Without limiting the foregoing, Executive may own any securities of any
corporation which is engaged in such business and is publicly owned and traded
but in an amount not to exceed at any one time five percent (5%) of any class of
stock or securities of such company. Notwithstanding the foregoing, in the event
the Severance Payment defined in Section 8(d) is less than twelve months, the
Restricted Period described herein will be the longer of six months or the
time-period covered by the Severance Payment.
(b) For purposes hereof, "direct competition" shall mean any business
that is engaged in selling the same or substantially similar services or
products as the Company is selling or has plans to sell during the Term of this
Agreement.
(c) During the Restricted Period, Executive shall not, whether for his
own account or for the account of any other individual, partnership, firm,
corporation or other business organization other than the Company, directly or
indirectly solicit, endeavor to entice away from, the Company or its
Affiliates, or otherwise directly interfere with the relationship of the
Company or its Affiliates, with any person who, to the actual knowledge of
Executive, is employed by the Company or its Affiliates or who is, or was within
the then most recent twelve-month period, a customer or client, of the Company,
its predecessors or any of its Affiliates. The placement of any general
classified or "help wanted" advertisements and/or general solicitations to the
public at large shall not constitute a violation of this Section 6 unless
Executive's name is contained in such advertisements or solicitations.
7. Injunction and Enforceability of Covenants.
(a) If Executive commits a breach, or threatens to commit a breach, of
any of the provisions of Sections 5, 6 or 9 hereof, the Company shall have the
right and remedy to have the provisions of this Agreement specifically enforced
by any court having equity jurisdiction, it being acknowledged and agreed that
any such breach or threatened breach will cause irreparable
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injury to the Company and that money damages will not provide an adequate remedy
to the Company.
(b) If any of the covenants contained in Section 5, 6 or 9 hereof,
or any part thereof, 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.
(c) If any of the covenants contained in Sections 5, 6 or 9 hereof,
or any part thereof, is held to be unenforceable because of the scope or
duration of such provision or the area covered thereby, the parties agree that
the court making such determination shall have the power to reduce the scope,
duration and/or area of such provision to the least extent possible to render
them enforceable and, in its reduced form, such provision shall then be
enforceable.
(d) The parties hereto intend to and hereby confer jurisdiction to
enforce the covenants contained in Sections 5, 6 or 9 hereof upon the courts of
any state within the geographical scope of such covenants having appropriate
personal and subject matter jurisdiction over the parties. In the event that the
courts of any one or more of such states shall hold any such covenant wholly
unenforceable by reason of the breadth of such scope or otherwise, it is the
intention of the parties hereto that such determination not bar or in any way
affect the Company's right to the relief provided above in the courts of any
other states within the geographical scope of such other covenants having
appropriate personal and subject matter jurisdiction over the parties, as to
breaches of such covenants in such other respective jurisdictions, the above
covenants as they relate to each state being, for this purpose, severable into
diverse and independent covenants.
8. Termination of Employment.
(a) The Company may terminate this Agreement upon written notice to
Executive for any reason or if Executive acts, or fails to act, in a manner that
provides Cause for termination. For purposes of this Agreement, the term "Cause"
means: (i) the willful or continual neglect by Executive of his duties or
obligations hereunder (other than breaches of the covenants set forth in
Sections 5, 6 and 9 hereof which events are governed by clause (vi) below),
provided that such neglect remains uncured for a period of fifteen (15) days
after written notice describing the same is given to Executive, and provided
further that isolated or insubstantial failures shall not constitute Cause
hereunder; (ii) Executive's conviction (which is not subject to further appeal)
of any felony or crime of moral turpitude or any crime or offense involving
money or other property of the Company or any subsidiaries or other Affiliates
thereof, (iii) Executive's performance of any act or failure to act which, if
Executive were prosecuted and convicted therefore, would constitute a crime
or offense either involving money or property of the Company or any subsidiaries
or other Affiliates thereof or constituting a felony in the jurisdiction
involved; (iv) any attempt by Executive to improperly secure any personal profit
in connection with the business of the Company or any subsidiaries or other
Affiliates thereof; (v) chronic alcoholism or the use of illegal drugs; (vi) the
commission of an act that the Company in good faith belief believes constitutes
sexual harassment; or (vii) any breach by Executive of the terms of Sections 5,
6 or 9 hereof, provided such breach continues uncured for ten (10) days after
written notice of
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such breach is given by the Company to Executive. All determinations of Cause
under subparagraphs (i), (ii), (iv), (v), (vi) and (vii) of this Section 8(a)(l)
shall be made by either the Chief Executive Officer or the Compensation
Committee; or
(b) Executive may terminate this Agreement upon written notice to the
Company for any reason or for Good Reason.
(1) For purposes of this Agreement, the term "Good Reason" means: (i)
Executive's resignation within thirty (30) days after his discovery
of any material breach of this Agreement by the Company which is not
cured within thirty (30) days after written notice thereof from
Executive; (ii) a material diminution of Executive's
responsibilities, title, authority or status not the result of the
conduct of Executive which is not cured within thirty (30) days
after written notice from Executive; (iii) Executive is required to
change his primary work location from the Washington, D.C.
metropolitan area; and (iv) the completion of a Change of Control
Transaction where Executive suffers a material diminution of his
responsibilities, title, authority and status not the result of the
conduct of Executive after such Transaction as compared with the
responsibilities, title, authority and status Executive had with the
Company before such Transaction. Notwithstanding the foregoing, in
no event shall Good Reason include the inability of Executive and
the Company to agree on the applicable Incentive Bonus.
(2) For purposes of this Agreement, a "Change of Control Transaction"
shall be deemed to have occurred in the event any of the following
occurs with respect to the Company:
(A) the direct sale or exchange by the stockholders of the Company
of all or substantially all of the stock of the Company, where the
stockholders of the Company before such sale or exchange do not
retain, directly or indirectly, at least a majority of the
beneficial interests in the voting stock of the acquiring entity
after such sale or exchange;
(B) a merger or consolidation in which the Company is not the
surviving corporation, other than a merger or consolidation with a
wholly-owned subsidiary, reincorporation of the Company in a
different jurisdiction from its current state of incorporation or
other transaction in which there is no substantial change in the
stock ownership of the Company;
(C) a merger or consolidation in which the Company is the surviving
corporation, where the stockholders of the Company before such
merger or consolidation do not retain, directly or indirectly, at
least a majority of the voting stock of the successor entity after
such merger or consolidation;
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(D) the sale, exchange, or transfer of all or substantially all of
the assets of the Company to an unrelated third party; or
(E) a liquidation or dissolution of the Company, other than pursuant
to bankruptcy or insolvency of the Company.
(c) This Agreement shall immediately terminate upon the occurrence of any of
the following:
(1) Executive's death, provided, however, that Executive's legal
representatives shall be entitled to receive Executive's salary through
the last day of the month in which his death occurs; or
(2) Executive's Disability, provided, however, that notwithstanding
Executive's disability, the Company shall continue to pay Executive his
Base Salary through the date on which Disability is finally determined.
For purposes of this Agreement, "Disability" means a physical or mental
condition which, for a continuous period of at least six (6) months has
or will prevent Executive from performing his duties on a full-time
basis and in a professional and consistent manner. Any dispute as to the
Executive's Disability shall be referred to and resolved by a licensed
physician selected and approved by the Company and the Executive.
(d) If this Agreement is terminated by Executive without Good Reason, then
the termination will be effective fourteen (14) days after the date of delivery
of written notice of termination. If this Agreement is terminated by the
Company without Cause or by Executive with Good Reason, then the termination
will be effective fourteen (14) days after the date of delivery of written
notice of termination. If this Agreement is terminated by the Company with
Cause, termination will be effective as of the date of notice of termination. If
this Agreement is terminated by the Company with Cause or by the Executive
without Good Reason, then the Executive shall be entitled to receive his Base
Salary and his fringe benefits and benefits hereunder only through the effective
date of termination. If this Agreement is terminated by the Company without
Cause or by Executive with Good Reason, then Executive shall be entitled to
receive (i) his Base Salary and his life insurance, medical insurance and
disability insurance benefits, if any, for the lesser of one year or the
remainder of the Term from the effective date of termination and (ii) his
prorated Incentive Bonus and any other bonuses granted by the Company for the
remainder of such calendar year (collectively, subsections (i) and (ii), the
"Severance Payment"), with such Severance Payment payable over time in
accordance with normal payroll and Company practices. If this Agreement is
terminated due to death, then the Severance Payment will be continued through
the next full twelve month period following the month in which the Executive
died. If this Agreement is terminated due to Disability, then the Severance
Payment will be continued until the last day of the twelve month period
following Disability; provided, however, that the Base Salary shall be reduced
by the amount of any disability income
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payments made to Executive during such twelve month period from any insurance or
other policies provided by the Company.
(e) If, after a Change of Control Transaction, this Agreement is
terminated by the Company without Cause or by the Executive with Good Reason,
then in addition to receiving the Severance Payment, all of Executive's options,
including the options described in Section 4 above, shall immediately become
vested in accordance with their terms.
(f) In the event Executive's employment is terminated at the end of the
Term upon expiration of this Agreement (including any renewals of the Term under
this Agreement), Executive shall, in the sole and absolute discretion of the
Company, become an employee terminable "at will" by the Company, unless a new
employment agreement or amendment, modification or extension to this Agreement
is agreed upon by the parties. If Executive becomes an employee "at will" of
the Company, he shall remain subject to the Company's policies and procedures
applicable to such employees at that time.
(g) Upon any termination of Executive's employment hereunder for any
reason, with or without Cause or Good Reason, whether by the Company or by
Executive, Executive shall be deemed to have resigned from all positions as an
officer and employee of the Company or any subsidiaries or other Affiliates
thereof.
(h) The date on which Executive's employment with the Company terminates
hereunder is referred to as the "Termination Date."
9. Inventions Discovered by Executive.
Executive shall promptly disclose to the Company any invention,
improvement, discovery, process, formula or method or other intellectual
property, whether or not patentable, whether or not copyrightable, in the
Company's Field of Interest (collectively, "Inventions") made, conceived or
first reduced to practice by Executive, either alone or jointly with others,
while performing service hereunder. The term "Inventions" shall not include
Executive's listing of names, addresses, telephone numbers and email addresses,
or any other work product, developed by Executive prior to commencing employment
with the Company. Executive hereby assigns to the Company, without any further
consideration due from Company to Executive, all of his right, title and
interest in and to any such Inventions. During and after the Term, Executive
shall execute any documents necessary to perfect the assignment of such
Inventions to the Company and to enable the Company to apply for, obtain and
enforce patents and/or copyrights in any and all countries on such Inventions.
Executive hereby irrevocably designates the Company's Chief Financial Officer or
the President and Chief Executive Officer as Executive's agent and
attorney-in-fact to execute and file any such document and to do all lawful acts
necessary to apply for and obtain patents and/or copyrights and to enforce the
Company's rights under this Section 9. Any Invention relating to the business of
the Company and disclosed by Executive within one year following the termination
of his employment with the Company shall be deemed to fall within the provisions
of this Section 9 unless proved to have been first
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conceived and made following such termination. This Section 9 shall survive the
termination of this Agreement.
10. Other Representations and Agreements of Executive.
(a) Executive represents and warrants that he is free to enter into
this Agreement and to perform the duties required hereunder and that there are
no employment contracts or understandings, restrictive covenants or other
restrictions, whether written or oral, preventing the performance of his
duties hereunder.
(b) Executive agrees to submit to a medical examination or tests and
to cooperate and supply such other information and documents as may be
reasonably required by the Company in connection with its obtaining or
providing any type of insurance as the Company shall determine from time to
time.
11. Definitions.
As used herein, the following terms have the following meanings:
(a) "Affiliate" means and includes any person, corporation or other
entity controlling, controlled by or under common control with the entity in
question;
(b) "Company's Field of Interest" means: (i) only while Executive is
an employee of the Company, the actual businesses of the Company as conducted
and as publicly announced (e.g., in speeches, on the Company's or partners'
Web sites, in press releases or in materials that are disseminated without
requiring the execution of a confidentiality agreement) to be conducted as of
the Commencement Date and throughout the Term and any business determined from
time to time by the Company in its good faith and reasonable business judgment
to be competitive with the business of the Company, and receiving or planning
to receive a significant portion of its revenue from a line of business that
is competitive with the business of the Company, and which is disclosed to
Executive; or (ii) only after the Executive is no longer an employee of the
Company, the actual business of the Company as conducted and as publicly
announced to be conducted as of Executive's last date of employment with the
Company. The parties acknowledge that the Company's Field of Interest may
change during the Term and they further acknowledge and agree that the intent
of the provisions in Sections 5 and 6 hereof are not intended to prevent
Executive from working in the Internet field in general upon his termination
from employment with the Company, but, rather, to prohibit him from working
with, for or on behalf of the Company's competitors.
12. Arbitration.
Any controversy or claim arising out of or relating to this Agreement or
the breach thereof (other than disputes with respect to alleged violations of
the covenants contained in Sections 5, 6 and 9 hereof and the Company's pursuit
of the remedies described in Section 7
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hereof in connection therewith) shall first be handled by non-binding
mediation conducted by a third party mutually agreeable to the parties. If
such controversy or claim cannot be settled by non-binding mediation, the
parties agree to submit such controversy or claim to binding arbitration in
the City of Alexandria, in accordance with the rules then existing of the
American Arbitration Association (three arbitrators, one chosen by the
Company, one chosen by Executive and one agreed upon by both parties), and
judgment upon the award rendered may be entered in any court having
jurisdiction thereof. The parties shall be free to pursue any remedy before
the arbitration tribunal that they shall be otherwise permitted to pursue in a
court of competent jurisdiction. The award of the arbitrators shall be final
and binding.
13. Notices.
All notices, requests, consents and other communications required or
permitted to be given hereunder shall be in writing and shall be deemed to
have been duly given if sent by private overnight courier service, registered
or certified mail, postage prepaid (return receipt requested and received), by
facsimile accompanied by facsimile machine-generated confirmation or delivered
personally, as follows (or to such other address as either party shall
designate by notice in writing to the other in accordance herewith):
If to the Company:
YellowBrix, Inc.
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Attention: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Executive:
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Telephone:
Fax:
14. Withholding.
All payments of Base Salary, Incentive Bonus and other compensation
required to be made by the Company to Executive under this Agreement shall be
subject to withholding taxes, employment taxes, and other payroll deductions
in accordance with the policy of the Company and applicable law.
15. Successors and Assigns.
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(a) This Agreement shall be binding upon and shall inure to the
benefit of the Company, its successors and assigns, and the Company shall
require any successor or assign to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform if no such succession or assignment had taken place. The
term "Company" as used herein shall include such successors and assigns. The
term "successors and assigns" as used herein shall mean a corporation or other
entity acquiring all or substantially all of the assets and business of the
Company (including the rights and obligations arising under this Agreement)
whether by operation of law or otherwise.
(b) This Agreement and all rights under this Agreement are personal
to Executive and shall not be assignable other than by will or the laws of
intestacy. All of Executive's rights under this Agreement shall inure to the
benefit of his heirs, personal representatives, designees or other legal
representatives, as the case may be.
16. General.
(a) This Agreement shall be governed by and construed and enforced in
accordance with the laws of the Commonwealth of Virginia, other than the
choice of law provisions thereof.
(b) This Agreement sets forth the entire agreement and understanding
of the parties relating to the subject matter hereof and supersedes all prior
agreements, arrangements and understandings, written or oral, relating to the
subject matter hereof, provided, however, that the terms and conditions of the
Stock Option Agreement shall continue to remain in full force and effect. No
representation, promise or inducement has been made by either party that is
not embodied in this Agreement or the Stock Option Agreement, and neither party
shall be bound by or liable for any alleged representation, promise or
inducement not so set forth.
(c) This Agreement may be amended, modified, superseded, canceled,
renewed or extended, and the terms or covenants hereof may be waived, only by
a written instrument executed by the parties hereto, or in the case of a
waiver, by the party waiving compliance. The failure or delay of a party at
any time or times to require performance of any provision hereof shall in no
manner affect the right at a later time to enforce the same. No waiver by a
party of the breach of any term or covenant contained in this Agreement,
whether by conduct or otherwise, or any one or more or continuing waivers of
any such breach, shall constitute a waiver of the breach of any other term or
covenant contained in this Agreement.
(d) Should any provision of this Agreement be held by an arbitration
tribunal or court to be invalid or unenforceable, such invalid or
unenforceable provision shall not render the entire Agreement invalid or
unenforceable, and this Agreement and each individual provision hereof shall
be enforceable and valid to the fullest extent permitted by law.
(e) The headings in this Agreement are for convenience of reference
only and shall not control or affect the meaning or construction of this
Agreement.
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(f) This Agreement may be signed in any number of counterparts and by
facsimile, each of which shall be an original, with the same effect as if the
signatures were upon the same instrument. This Agreement shall become effective
when each party shall have received counterparts signed by the other party.
(g) Sections 5, 6, 7, 9, 12, 13 and 16 will survive the termination
of this Agreement.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
by its duly authorized officer, and Executive has executed this Agreement as of
the day and year first above written.
[▇▇▇▇▇ ▇▇▇▇▇ SIG]
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Executive Signature
Name: ▇▇▇▇▇ ▇▇▇▇▇
YellowBrix, Inc.
By:
----------------------
Name:
Title:
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