SYMPOSIUM CORPORATION
EMPLOYMENT AGREEMENT
This Employment Agreement (this "AGREEMENT") is made and entered into
as of September 21, 1999, by and between Symposium Corporation, a Delaware
corporation (the "COMPANY"), and Xxx X. Xxxxxxx ("EMPLOYEE").
1. ENGAGEMENT AND RESPONSIBILITIES
(a) Upon the terms and subject to the conditions set forth in this
Agreement, the Company hereby employs Employee as an officer of the Company.
Employee hereby accepts such employment. Employee shall have the title of Chief
Financial Officer, but may have any executive officer title determined by the
Board of Directors provided that Employee always has a title which is no less
senior than Chief Financial Officer.
(b) Employee agrees to devote all of Employee's business time, energy
and efforts to the business of the Company and will use Employee's best efforts
and abilities faithfully and diligently to promote the Company's business
interests. Employee's duties and responsibilities shall be those incident to
those which are normally and customarily vested in such office(s) of a
corporation. In addition, Employee's duties shall include those duties and
services for the Company and its affiliates as the Board shall, in its sole and
absolute discretion, from time to time reasonably direct which are not
inconsistent with Employee's position described in Section 1(a).
(c) For so long as Employee is employed by the Company, Employee shall
not, directly or indirectly, either as an employee, employer, consultant, agent,
investor, principal, partner, stockholder (except as the holder of less than 5%
of the issued and outstanding stock of a publicly held corporation), corporate
officer or director, or in any other individual or representative capacity,
engage or participate in any business that is in competition in any manner
whatsoever with the business of the Company Group, as such businesses are now or
hereafter conducted.
2. DEFINITIONS
"BENEFITS TERMINATION DATE" shall mean: (i) two months following the
Date of Termination if Employee's employment with the Company terminates on or
prior to March 31, 2000; and (ii) six months following the Date of Termination
if Employee's employment with the Company terminates after March 31, 2000;
provided, however, that if any Person acquires more than fifty percent of the
outstanding voting securities of the Company, from and after the date of such
acquisition the Benefits Termination Date shall mean one year from the Date of
Termination.
"BOARD" shall mean the Board of Directors of the Company.
"COMPANY GROUP" shall mean the Company and each Person that the Company
directly or indirectly Controls.
"CONTROL" shall mean, with respect to any Person, (i) the beneficial
ownership of more than 50% of the outstanding voting securities of such Person,
or (ii) the power, directly or indirectly, by proxy, voting trust or otherwise,
to elect a majority of the outstanding directors, trustees or other managing
persons of such Person.
"DISABILITY," with respect to Employee, shall mean that, for physical
or mental reasons, Employee is unable to perform the essential functions of
Employee's duties under this Agreement for 60 consecutive days, or 90 days
during any one six month period. Employee agrees to submit to a reasonable
number of examinations by a medical doctor advising the Company as to whether
Employee shall have suffered a disability and Employee hereby authorizes the
disclosure and release to the Company and its agents and representatives all
supporting medical records. If Employee is not legally competent, Employee's
legal guardian or duly authorized attorney-in-fact will act in Employee's stead
for the purposes of submitting Employee to the examinations, and providing the
authorization of disclosure.
"FOR CAUSE" shall mean, in the context of a basis for termination of
Employee's employment with the Company, that:
(a) Employee breaches any obligation, duty or agreement under this
Agreement, which breach is not cured or corrected within 15 days of written
notice thereof from the Company (except for breaches of Sections 1(c), 6 or 7 of
this Agreement, which cannot be cured and for which the Company need not give
any opportunity to cure); or
(b) Employee commits any act of fraud, embezzlement, breach of
fiduciary duty or trust against the Company Group; or
(c) Employee is indicted for, or convicted of, or pleads guilty or nolo
contendere with respect to, theft, fraud, a crime involving moral turpitude, or
a felony under federal or applicable state law; or
(d) Employee commits any act of personal conduct that, in the
reasonable opinion of the Board, gives rise to any member of the Company Group
of a material risk of liability under federal or applicable state law for
discrimination or sexual or other forms of harassment or other similar
liabilities to subordinate employees; or
(e) Employee commits continued and repeated substantive violations of
specific written directions of the Board, which directions are consistent with
this Agreement and Employee's position as a senior or executive officer, or
continued and repeated substantive failure to perform duties assigned by or
pursuant to this Agreement.
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"FULL START DATE" shall mean earlier of: (i) the date specified by the
Company as the "Full Start Date", and (ii) the date the Company has raised not
less than $10 million in one or a series of equity financings after the date
hereof.
"PERSON" shall mean an individual or a partnership, corporation, trust,
association, limited liability company, governmental authority or other entity.
3. COMPENSATION AND BENEFITS
For so long as Employee shall be employed by the Company, Employee
shall receive the compensation and benefits set forth in this Section 3.
(a) SALARY. The Company shall pay Employee a salary at an annual rate
of $210,000. The Board may, but shall not be obligated to, increase Employee's
salary from time to time. The salary shall be payable in installments in the
same manner and at the same times the Company pays salaries to other executive
officers of the Company, but in no event less frequently than equal monthly
installments.
(b) BONUS. On or before January 31 of each calendar year, commencing
with the year 2000, the Board of Directors or the Chief Executive Officer of the
Company, following consultation with Employee, shall establish a bonus plan for
Employee for such year which will permit Employee to earn a bonus for such year
in an amount ranging from $20,000 to $40,000. The terms and conditions of the
bonus plan shall be within the sole and absolute discretion of the Board of
Directors and/or the Chief Executive Officer. The bonus plan may provide
objective and/or subjective criteria for earning a bonus.
(c) EXPENSE REIMBURSEMENT. Employee shall be entitled to reimbursement
from the Company for the reasonable out-of-pocket costs and expenses which
Employee incurs in connection with the performance of Employee's duties and
obligations under this Agreement in a manner consistent with the Company's
practices and policies therefor.
(d) EMPLOYEE BENEFIT PLANS. Employee shall be entitled to participate
in any pension, savings and group term life, medical, dental, disability, and
other group benefit plans that the Company makes available to its employees
generally.
(e) VACATION. Employee shall be entitled to paid vacation which accrues
at a rate of two weeks per year through September 30, 2000 and three weeks per
year thereafter. Vacation shall accrue in accordance with the Company's standard
vacation accrual policy.
(f) DISABILITY. In the event of any Disability, if Employee shall
receive payments as a result of such Disability under any disability plan
maintained by the Company or from any government agency, the Company shall be
entitled to deduct the amount of such payments received from base salary payable
to Employee during the period of such Disability.
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(g) WITHHOLDING. The Company may deduct from any compensation payable
to Employee (including payments made pursuant to Section 5 of this Agreement in
connection with or following termination of employment) amounts it believes are
required to be withheld under federal and state law, including applicable
federal, state and/or local income tax withholding, old-age and survivors' and
other social security payments, state disability and other insurance premiums
and payments.
4. TERM OF EMPLOYMENT
Employee's term of employment pursuant to this Agreement shall commence
as of the date hereof and shall terminate on the earliest to occur of the
following (the "DATE OF TERMINATION"):
(a) upon the date set forth in a written notice of termination from
Employee to the Company (which date shall at least 30 days after the delivery of
that notice if the notice is delivered after the Full Start Date); provided,
however, that in the event Employee delivers such notice to the Company, the
Company shall have the right to accelerate such termination by written notice
thereof to Employee (and such termination by the Company shall be deemed to be a
termination of employment pursuant to this Section 4(a), and not a termination
pursuant to Section 4(d) or 4(e) hereof);
(b) upon the death of Employee;
(c) upon delivery to Employee of written notice of termination by the
Company if Employee shall suffer a Disability;
(d) upon delivery to Employee of written notice of termination by the
Company For Cause; or
(e) upon delivery to Employee of written notice of termination by the
Company without cause.
5. SEVERANCE COMPENSATION
(a) If Employee's employment is terminated pursuant to Section 4(e) (by
the Company without cause) after the Full Start Date, the Company shall: (i)
until the Benefits Termination Date, continue to pay (A) pay to Employee salary
at the rate in effect on the Date of Termination; and (B) pay for Employee's
(and his immediate family's) participation in group medical, life, dental,
disability and similar plans to the extent permitted by the plan; and (ii) pay
to Employee a pro-rated share of any bonus which would have been earned by
Employee had Employee been employed the entire year, which bonus is directly
tied to, and calculated by reference to, the financial performance of the
Company for the year, all as set forth in the bonus plan adopted pursuant to
Section 3(b) of this Agreement..
(b) If Employee's employment is terminated for any reason other than by
the Company without cause after the Full Start Date, the Company shall pay to
Employee (or Employee's estate
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or beneficiary, as the case may be) any unpaid base salary through the Date of
Termination and any bonus for the year prior to the year in which the Date of
Termination occurs which has not been paid. Employee shall not be entitled to
any bonus for the year in which the Date of Termination occurs. All rights and
benefits which Employee or his estate may have under employee benefit plans in
which Employee shall be participating at the date of termination of employment
shall be determined in accordance with such plans.
(c) If Employee's employment is terminated by the Company pursuant to
Section 4(d) (by the Company For Cause), and subject to applicable law and
regulations, the Company shall be entitled to offset against any payments due
Employee any loss or damage which the Company shall suffer as a result of the
acts or omissions of Employee giving rise to termination under Section 4(d).
(d) Employee acknowledges that the Company has the right to terminate
Employee's employment without cause and that such termination shall not be a
breach of this Agreement or any other express or implied agreement between the
Company and Employee. Accordingly, in the event of such termination, Employee
shall be entitled only to those benefits specifically provided in this Section
5, and shall not have any other rights to any compensation or damages from the
Company for breach of contract.
(e) Employee acknowledges that in the event of termination of
Employee's employment for any reason, Employee (nor Employee's estate, heirs,
beneficiaries or others claiming through Employee) shall not be entitled to any
severance or other compensation from the Company except as specifically provided
in this Section 5. Without limitation on the generality of the foregoing, this
Section supersedes any plan or policy of the Company which provides for
severance to its officers or employees, and Employee shall not be entitled to
any benefits under any such plan or policy.
6. COVENANT NOT TO SOLICIT
From the date hereof until two years from the Date of Termination:
(a) Employee will not, directly or indirectly, influence or attempt to
influence any customer of the Company Group to reduce or discontinue its
purchases of any products or services from the Company Group or to divert such
purchases to any Person other than the Company Group.
(b) Employee will not, directly or indirectly, interfere with, disrupt
or attempt to disrupt the relationship, contractual or otherwise, between the
Company Group and any of its respective suppliers, principals, distributors,
lessors or licensors; and
(c) Employee will not, directly or indirectly, solicit any employee of
the Company Group to work for any Person.
7. CONFIDENTIALITY
Employee agrees not to disclose or use at any time (whether during or
after Employee's employment with the Company) for Employee's own benefit or
purposes
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or the benefit or purposes of any other Person any trade secrets, information,
data, or other confidential information relating to customers, development
programs, costs, marketing, trading, investment, sales activities, promotion,
credit and financial data, financial methods, plans, or the business and affairs
of the Company Group generally, PROVIDED that the foregoing shall not apply to
information which is not unique to the Company Group or which is generally known
to the industry or the public other than as a result of Employee's breach of
this covenant. Employee agrees that upon termination of his employment with the
Company for any reason, he will return to the Company immediately all memoranda,
books, papers, plans, information, letters and other data, and all copies
thereof or therefrom, in any way relating to the business of the Company Group
except that he may retain personal notes, notebooks, diaries, rolodexes and
addresses and phone numbers. Employee further agrees that he will not retain or
use for his account at any time any trade names, trademark or other proprietary
business designation used or owned in connection with the business of any member
of the Company Group.
8. MISCELLANEOUS
(a) NOTICES. All notices, requests, demands and other communications
(collectively, "NOTICES") given pursuant to this Agreement shall be in writing,
and shall be delivered by personal service, courier, facsimile transmission or
by United States first class, registered or certified mail, addressed to the
following addresses:
If to the Company, to:
Symposium Corporation
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chief Executive Officer and Board of Directors
If to Employee, to:
Employee's address as set forth on the books
and records of the Company
Any Notice, other than a Notice sent by registered or certified mail, shall be
effective when received; a Notice sent by registered or certified mail, postage
prepaid return receipt requested, shall be effective on the earlier of when
received or the third day following deposit in the United States mails. Any
party may from time to time change its address for further Notices hereunder by
giving notice to the other party in the manner prescribed in this Section.
(b) ENTIRE AGREEMENT. This Agreement contains the sole and entire
agreement and understanding of the parties with respect to the entire subject
matter of this Agreement, and any and all prior discussions, negotiations,
commitments and understandings, whether oral or otherwise, related to the
subject matter of this Agreement are hereby merged herein. No representations,
oral
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or otherwise, express or implied, other than those contained in this Agreement
have been relied upon by any party to this Agreement.
(c) SEVERABILITY. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason, in
whole or in part, the remaining provisions of this Agreement shall be unaffected
thereby and shall remain in full force and effect to the fullest extent
permitted by law.
(d) GOVERNING LAW. This Agreement has been made and entered into in the
State of New York and shall be construed in accordance with the laws of the
State of New York.
(e) CAPTIONS. The various captions of this Agreement are for reference
only and shall not be considered or referred to in resolving questions of
interpretation of this Agreement.
(f) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
(g) ATTORNEYS' FEES. If any action or proceeding is brought to enforce
or interpret any provision of this Agreement, the prevailing party shall be
entitled to recover as an element of its costs, and not its damages, its
reasonable attorneys' fees, costs and expenses. The prevailing party is the
party who is entitled to recover its costs in the action or proceeding. A party
not entitled to recover its costs may not recover attorneys' fees. No sum for
attorneys' fees shall be counted in calculating the amount of a judgment for
purposes of determining whether a party is entitled to recover its costs or
attorneys' fees.
In Witness Whereof, the parties have executed this Agreement as of the
date first above written.
Symposium Corporation
By: /S/ XXXXXX XXXXXXX
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Its Co-Chairman
By: /S/ XXX X. XXXXXXX
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Xxx X. Xxxxxxx
