EMPLOYMENT AGREEMENT (the "Agreement"), dated as of November
18, 1996, by and between MEDIALINK WORLDWIDE INCORPORATED a Delaware
corporation with offices at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Corporation"), and XXXX XXXXXX, an individual residing at 0000 Xxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000 (the "Employee").
W I T N E S S E T H:
WHEREAS, the Corporation has filed a registration statement
("1996 Registration Statement") with the Securities and Exchange Commission
("SEC") and making a public offering of shares of its Common Stock;
WHEREAS, the Corporation desires to continue the services of
the Employee upon the terms and conditions hereinafter set forth; and
WHEREAS, the Employee desires to render services to the
Corporation upon the terms and conditions hereinafter set forth.
NOW, WHEREFORE, the parties mutually agree as follows:
Section 1. Effective Date. This Agreement shall become
effective only upon the consummation of the proposed public offering pursuant
to the 1996 Registration Statement. In the event for any reason whatsoever such
public offering is not consummated, then this Agreement shall be void and of no
legal force or effect.
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The date of the first closing of the public offering pursuant to the 1996
Registration Statement shall be the Effective Date.
Section 2. Employment. On the Effective Date the Corporation
employs the Employee and the Employee on the Effective Date accepts such
employment, as an executive of the Corporation, subject to the terms and
conditions set forth in this Agreement.
Section 3. Duties. The Employee shall be employed as Senior
Vice President of Sales. The Employee shall properly perform such duties as may
be assigned to him from time to time by the Corporation's Chief Executive
Officer or the Board of Directors of the Corporation as the case may be. During
the term of this Agreement, the Employee shall devote all of his available
business time to the performance of his duties hereunder.
Section 4. Term of Employment. The term of the Employee's
employment shall commence on the Effective Date and shall continue for two (2)
years or until terminated pursuant to Section 6 hereof.
Section 5. Compensation of Employee.
5.1. Compensation. The Corporation shall pay to the
Employee as annual compensation for his services hereunder a salary ("Salary")
in an amount equal to One Hundred Eight Thousand One Hundred Fifty ($108,150)
Dollars. The Salary shall be reviewed every January 1st for merit increases and
shall in all events be increased on the anniversary date of this Agreement by
the percentage increase, if any, in the Consumer Price Index, as defined herein,
for the most recent calendar
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month for which the Consumer Price Index has been published over the Consumer
Price Index for the same calendar month in the immediately preceding year. As
used herein, the "Consumer Price Index" shall mean the Consumer Price Index for
All Urban Consumers, New York - Northeastern New Jersey area (1982-84=100)
issued by the Bureau of Labor Statistics of the United States Department of
Labor; provided that in the event the Consumer Price Index shall hereafter be
converted to a different standard reference base or otherwise revised, the
determination of the salary increase shall be made with the use of such
conversion factor, formula or table for converting the Consumer Price Index as
may be published by the Bureau of Labor Statistics. The Salary shall be payable
bi-weekly less such deductions as shall be required to be withheld by
applicable law and regulations. The Employee shall be eligible to participate
in the Corporation's bonus plan. Such bonus shall be determined by the
Corporation's Compensation Committee. Notwithstanding the foregoing, the
minimum annual bonus potential shall be 25% of the Employee's Salary; provided,
however, that Employee shall only be entitled to receive such bonus in the
event the Company attains the annual goals set by the Compensation Committee.
The goals set by the Compensation Committee shall be consistent with the goals
set by the Compensation Committee in prior years.
5.2. Expenses. The Corporation shall pay or
reimburse the Employee for all reasonable and necessary business, travel or
other expenses incurred by him with the prior consent of the Corporation, upon
proper documentation
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thereof, which may be incurred by him in connection with the rendition of the
services contemplated hereunder.
5.3. Benefits. During the term of this
Agreement, the Employee shall be entitled to participate in such pension, profit
sharing, group insurance, option plans, hospitalization, group health benefit
plans and all other benefits and plans as the Corporation provides to its
employees. Provided that the Corporation files a registration statement on Form
S-1 covering the registration of shares of its Common Stock, $.01 par value
("Common Stock"), the Corporation intends to file a registration statement on
Form S-8 to register the shares of Common Stock underlying the stock options
granted pursuant to its option plans. In the event such registration statement
on Form S-8 is filed, the Corporation agrees to use its best efforts to keep
such registration statement on Form S-8 in full force and effect.
Section 6. Termination.
6.1. Termination of Employment. This Agreement
shall terminate upon the death, Disability, as hereinafter defined, termination
of employment of the Employee For Cause, as hereinafter defined, termination of
the employment of Employee without cause or because Employee wrongfully leaves
his employment hereunder.
6.2. Termination For Cause. In the event of a
termination For Cause or because Employee wrongfully leaves his employment
hereunder, the Corporation shall pay Employee all accrued and unpaid Salary and
vacation through the date of termination.
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6.3. Termination Without Cause. In the event of
a termination without cause, the Employee shall be entitled to continue to
participate in the hospitalization, group health benefit and disability plans of
the Corporation on the same terms and conditions as immediately prior to his
termination and shall receive his Salary, both for a period equal to the earlier
of (i) the date the Employee commences employment elsewhere; (ii) six (6)
months; or (iii) the date the term would have expired pursuant to Section 3 of
this Agreement had the Employee not been terminated.
6.4. Termination Upon Death. In the event of a
termination upon the death of Employee, the Corporation shall pay to the
Employee, any person designated by the Employee in writing or if no such person
is designated, to his estate, as the case may be, the Salary which would
otherwise be payable to the Employee for a period of six (6) months from the
date of such death. In the event of a termination upon the death of Employee,
the Corporation shall pay for a period of six (6) months after such death, on
behalf of the Employee's surviving dependents, the COBRA insurance premiums of
such dependents.
6.5. Termination Upon Disability. In the event
of a termination upon the Disability of Employee, the Corporation shall pay to
the Employee or any person designated by the Employee, (i) during the first
month immediately after the termination of employment due to such Disability,
the Salary which would otherwise by payable to the Employee and (ii) during the
second and third months immediately after the termination of employment due to
such Disability, the difference between the
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Salary which would otherwise be payable to the Employee and the disability
insurance payments received by Employee for such period.
6.6. Definition of "For Cause". As used herein,
the term "For Cause" shall mean (i) Employee's indictment, plea or conviction in
a court of law of any crime or offense involving willful misappropriation of
money or other property or any other crime involving moral turpitude which
constitutes felony, whether or not involving the Corporation; or (ii)
disobedience of a directive, other than a directive to relocate to an office of
the Corporation more than fifty (50) miles from the office where Executive is
employed pursuant to this Agreement, from the Chief Executive Officer or Board
of Directors of the Corporation consistent with Employee's duties hereunder or
(iii) breach of his responsibilities under this Agreement.
Section 7. Disability
7.1. Definition. In the event the Employee is
mentally or physically incapable or unable to perform his regular and customary
duties of employment with the Corporation for a period of seventy-five (75) days
in any one hundred twenty (120) day period during the term, the Employee shall
be deemed to be suffering from a "Disability".
7.2. Payment During Disability. In the event the
Employee is unable to perform his duties hereunder by reason of a disability,
which disability does not constitute a Disability, the Corporation shall
continue to pay the Employee his Salary and benefits during the continuance of
such disability.
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Section 8. Vacations and Personal Days. The Employee shall be
entitled to vacation and personal days in accordance with Corporation policy.
The Employee's Salary shall be paid in full during his vacation and personal
days. The Employee shall take his vacation at such time or times as the
Employee and the Corporation shall determine is mutually convenient.
Section 9. Disclosure of Confidential Information.
(a) The Employee hereby acknowledges
that the principal business of the Corporation is the production of video and
audio public relations materials for distribution to news media and the
distribution by satellite or other means to television and radio stations and
news media services; distribution of public relations text, audio and video to
news media and the general public via satellite, cassette, wire or other means;
distribution of press releases by mail and facsimile; the maintenance of
databases of media contacts for and on behalf of clients; analysis and written
appraisal of public relations and public affairs campaigns as determined
through press clipping review, either on paper, video or audio tape or
electronic database searches and such other businesses as the Corporation may
conduct from time to time (the "Business"). Employee acknowledges that he will
be acquiring confidential information concerning the Corporation and the
Business and that, among other things, his knowledge of the Business will be
enhanced through his employment by the Corporation. Employee acknowledges that
such information is of great value to the Corporation, is the sole property of
the Corporation, and has been and will be acquired by him in confidence. In
consideration of the obligations
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undertaken by the Corporation herein, Employee will not, at any time, during or
after the term of this Agreement, reveal, divulge or make known to any person,
any information which is treated as confidential by the Corporation and not
otherwise in the public domain or previously known to him.
(b) The provisions of this Section 9
shall survive Employee's employment hereunder.
Section 10. Covenant Not To Compete.
(a) Employee recognizes that the
services to be performed by him hereunder are special, unique and extraordinary.
The parties confirm that it is reasonably necessary for the protection of the
Corporation that Employee agrees, and, accordingly, Employee does hereby agree,
that he will not, directly or indirectly, in the Territory, as hereinafter
defined, at any time during the Restricted Period, as hereinafter defined:
(i) engage in the Business for his
account or render any services which constitute engaging in
the Business, in any capacity to any entity; or become
interested in any entity engaged in the Business either on his
own behalf or as an officer, director, stockholder, partner,
principal, consultant, associate, employee, owner, agent,
creditor, independent contractor, or co-venturer of any third
party or in any other relationship or capacity; or
(ii) employ or engage, or cause to
authorize, directly or indirectly, to be employed or engaged,
for or on behalf of himself or
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any third party, any employee, representative or agent of the
Corporation; or
(iii) solicit, directly or
indirectly, on behalf of himself or any third party, any
client or vendor of the Corporation and its affiliates; or
(iv) have an interest as an owner,
lender, independent contractor, co-venturer, partner,
participant, associate or in any other capacity, render
services to or participate in the affairs of, any business
which is competitive with, or substantially similar to, the
Business of the Corporation and its affiliates as presently
conducted and as may be conducted by the Corporation during
the Restricted Period.
(b) If any of the restrictions contained
in this Section 10 shall be deemed to be unenforceable by
reason of the extent, duration or geographical scope thereof,
or otherwise, then after such restrictions have been reduced
so as to be enforceable, in its reduced form this Section
shall then be enforceable in the manner contemplated hereby.
(c) This Section 10 shall not be
construed to prevent Employee from owning, directly and indirectly, in the
aggregate, an amount not exceeding two percent (2%) of the issued and
outstanding voting securities of any class of any corporation whose voting
capital stock is traded on a national securities exchange or in the
over-the-counter market.
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(d) Notwithstanding anything to the
contrary set forth in this Section 10, (i) the Employee shall not be prohibited
from rendering services for news organizations, or public relations departments
or public relations agencies; (ii) the Employee may act as a news reporter or
manager for an entity whose primary function is journalism; (iii) the Employee
may act as a member of the internal public relations staff of any corporation or
entity who performs services for only that corporation or its affiliates,
including parent corporations, subsidiaries, and joint ventures; and/or (iv) the
Employee may act as an account executive or manager at a public relations agency
directly serving that agency's clients. Notwithstanding the prior sentence,
however, the Employee may not, render services, directly or indirectly, (i) for
any organization, department, or affiliate of such news organizations, corporate
public relations departments, or public relations agencies, whose primary
purpose is to provide the production and distribution of video or audio news
releases that are competitive with, or substantially similar to, the Business,
and (ii) for any organization, department, or affiliate of such news
organizations, corporate public relations departments, or public relations
agencies, whose primary purpose is to provide the research and analysis of
public relations and public affairs campaigns as determined through press
clipping review, either on paper, video or audio tape or electronic database
searches that are competitive with or substantially similar to the Business.
(e) The term "Restricted Period", as
used in this Section 10, shall mean (i) the term of this Agreement plus one (1)
year; (ii) in the event of a termination For Cause, two (2) years from the date
of termination; or (iii) in
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the event of a termination without cause, one (1) year from the date of
termination. Employee acknowledges that the Corporation markets its Business
worldwide and therefore, the term "Territory" as used herein shall mean the
entire world.
(f) The provisions of this Section 10
shall survive the termination of Employee's employment hereunder and until the
end of the Restricted Period as provided in Section 10 (e) hereof.
Section 11. Rights and Remedies Upon Breach of Sections
9 or 10.
11.1. Return of Benefits. If the Employee
breaches, or threatens to commit a breach of, any of the provisions of Sections
9 or 10 (the "Restrictive Covenants"), the Corporation shall have the right and
remedy to require the Employee to account for and pay over to the Corporation
all compensation, profits, monies, accruals, increments or other benefits
(collectively, "Benefits") derived or received by him as the result of any
transactions constituting a breach of the Restrictive Covenants, and the
Employee shall account for and pay over such Benefits to the Corporation. In
addition, if the Employee breaches or threatens to commit a breach of any of the
Restrictive Covenants, (i) the Employee's unvested stock options shall
immediately lapse and (ii) the Corporation shall have the right to purchase from
the Employee the Employee's vested stock options for the book value of the
shares of Common Stock underlying such vested options less the exercise price of
such vested options. The Corporation may set off any amounts due to the
Corporation under this Section 11.1 against any amounts owed to the Employee by
the Corporation.
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11.2. Injunctive Relief. Employee acknowledges
that the services to be rendered under the provisions of this Agreement are of a
special, unique and extraordinary character and that it would be difficult or
impossible to replace such services. Accordingly, Employee agrees that any
breach or threatened breach by him of Sections 9 or 10 of this Agreement shall
entitle the Corporation, in addition to all other legal remedies available to
it, to apply to any court of competent jurisdiction to enjoin such breach or
threatened breach without posting a bond or showing special damages. The parties
understand and intend that each restriction agreed to by Employee hereinabove
shall be construed as separable and divisible from every other restriction, that
the unenforceability of any restriction shall not limit the enforceability, in
whole or in part, of any other restriction, and that one or more of all of such
restrictions may be enforced in whole or in part as the circumstances warrant.
In the event that any restriction in this Agreement is more restrictive than
permitted by law in the jurisdiction in which the Corporation seeks enforcement
thereof, such restriction shall be limited to the extent permitted by law.
Section 12. Miscellaneous.
12.1. Assignment. The Employee may not assign or
delegate any of his rights or duties under this Agreement.
12.2. Entire Agreement. This Agreement
constitutes and embodies the full and complete understanding and agreement of
the parties with respect to the Employee's employment by the Corporation,
supersedes all prior understandings and agreements, including employment
agreements, non-compete
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agreements and confidentiality agreements, if any, whether oral or written,
between the Employee and the Corporation and shall not be amended, modified or
changed except by an instrument in writing executed by the party to be charged.
The invalidity or partial invalidity of one or more provisions of this
Agreement shall not invalidate any other provision of this Agreement. No waiver
by either party of any provision or condition to be performed shall be deemed a
waiver of similar or dissimilar provisions or conditions at the same or any
prior or subsequent time.
12.3. Binding Effect. This Agreement shall inure
to the benefit of, be binding upon and enforceable against, the parties hereto
and their respective successors and permitted assigns.
12.4. Captions. The captions contained in this
Agreement are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
12.5. Notices. All notices, requests, demands and
other communications required or permitted to be given hereunder shall be in
writing and shall be deemed to have been duly given when personally delivered or
sent by certified mail, postage prepaid, or overnight delivery to the party at
the address set forth above or to such other address as either party may
hereafter give notice of in accordance with the provisions hereof.
12.6. Governing Law. This Agreement shall be
governed by and interpreted under the laws of the State of New York applicable
to contracts made and to be performed therein without giving effect to the
principles of conflict of laws
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thereof. Except in respect of any action commenced by a third party in another
jurisdiction, the parties hereto agree that any legal suit, action, or
proceeding against them arising out of or relating to this Agreement shall be
brought exclusively in the United States Federal Courts or New York County
Supreme Court, in the State of New York. The parties hereto hereby accept the
jurisdictions of such courts for the purpose of any such action or proceeding
and agree that venue for any action or proceeding brought in the State of New
York shall lie in the Southern District of New York or Supreme Court, New York
County, as the case may be. Each of the parties hereto hereby irrevocably
consents to the service of process in any action or proceeding in such courts
by the mailing thereof by United States registered or certified mail postage
prepaid at its address set forth herein.
12.7. Counterparts. This Agreement may be
executed simultaneously in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date set forth above.
MEDIALINK WORLDWIDE INCORPORATED
By:
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XXXX XXXXXX
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