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EXHIBIT 10.5
EMPLOYMENT AGREEMENT
AGREEMENT made this 29th day of January, 1997, by and between
ORGANIC ONLINE, INC., a Delaware corporation (the "Company"), and XXXXXXX XXXXX
(the "EXECUTIVE").
WITNESSETH:
WHEREAS, entering into this Agreement is a condition of closing
under a certain Stock Purchase Agreement of even date herewith (the "PURCHASE
AGREEMENT") pursuant to which Omnicom Group Inc. ("OMNICOM") acquired 20.1% of
the shares of Series A Preferred Stock of the Company, and, in certain
circumstances as set forth under a Shareholders Agreement of even date herewith
(the "SHAREHOLDERS AGREEMENT"), the right to acquire additional shares of
capital stock of the Company; and
WHEREAS, the Company wishes to ensure the continued employment
of the Executive with the Company and the Executive wishes to accept such
employment upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and other good
and valuable consideration, receipt of which is hereby acknowledged, the parties
hereto agree as follows:
1. EMPLOYMENT
The Company agrees to employ the Executive during the Term
specified in Section 2, and the Executive agrees to accept such employment, upon
the terms and conditions hereinafter set forth.
2. TERM
(a) Subject to section 6 below and the other terms and
conditions of this Agreement, the Executive's employment by the Company shall be
for a term commencing on the date hereof and expiring on the close of business
on December 31, 1999 (the "INITIAL TERM");
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provided, however, that the term of the Executive's employment by the Company
shall continue thereafter unless and until either party shall give to the other
90 days advance written notice ("NOTICE OF TERMINATION") of expiration of the
term (the Initial Term and the period, if any, thereafter, during which the
Executive's employment shall continue are collectively referred to as the
"TERM"). Any notice of Termination given under this Section 2(a) shall specify
the date of expiration (which may not be earlier than December 31, 1999) and may
be given at any time on or after September 30, 1999. The Company shall have the
right during any such 90 day notice period to relieve the Executive of his
offices, duties and responsibilities and to place him on a paid leave-of-absence
status, provided that during such notice period the Executive shall remain an
employee of the Company and shall continue to receive his salary compensation
and other benefits as provided in this Agreement. The effective date of the
termination of the Executive's employment with the Company, regardless of the
reason therefor, is referred to in this Agreement as the "DATE OF TERMINATION".
(b) Upon termination of the employment of the Executive with the
Company pursuant to a Notice of Termination under Section 2(a) above, the
Company shall pay the Executive, subject to appropriate offsets, as permitted by
applicable law, for debts or money owed by the Executive to the Company or
another company within the group of companies directly or indirectly owned by
Holdings (collectively, "OFFSETS"), his salary compensation and any unused
accrued vacation only through, and any unpaid reimbursement expenses outstanding
as of, the Date of Termination. Any benefits to which the Executive or his
beneficiaries may be entitled under the plans and programs described in Sections
5(b) and (c) below, or any other applicable plans and programs, shall be
determined as of the Date of Termination in accordance with the terms of such
plans and programs. Except as provided in this Section 2(b), in connection with
the Executive's termination of employment pursuant to Section 2(a), the Company
shall have no further liability to the Executive or the Executive's heirs,
beneficiaries or estate for damages, compensation, benefits, severance,
indemnities or other amount of whatever nature.
3. DUTIES AND RESPONSIBILITIES
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(a) During the Term, the Executive shall have the title of
President of the Company. The Executive shall report to the Chief Executive
Officer the Company, at such times and in such detail as he shall reasonably
require.
(b) In his position as President of the Company, the Executive
shall perform such executive and managerial duties and responsibilities
customary to his office as are reasonably necessary to the operations of the
Company and as may be assigned to him from time to time by or under authority of
the Chief Executive Officer of the Company, consistent with his position as
designated in Section 3(a) above.
(c) The Executive shall use his best efforts to ensure that the
Company and its subsidiaries, if any, comply on a timely basis with all
budgetary and reporting requirements reasonably requested by the Board of
Directors of the Company (the "Board"). In no event will the Executive without
the approval of the Board incur obligations on behalf of the Company other than
in the ordinary course of business or enter into any transaction on behalf of
the Company not in the ordinary course of business. In addition, as long as the
provisions of the Shareholders Agreement are operative, the Executive shall not
cause the Company to take any of the actions listed in Article III without such
actions being properly authorized by the Board and/or the shareholders of the
Company, as the case may be.
(d) The Executive's employment by the Company shall be full-time
and exclusive, and during the Term, the Executive agrees that he will (i) devote
substantially all of his business time and attention, his best efforts, and all
his skill and ability to. promote the interests of the Company; (ii) carry out
his duties in a competent and professional manner; (iii) work with other
employees of the Company in a competent and professional manner; and (iv)
generally promote the interests of the Company and its clients. Notwithstanding
the foregoing, the Executive shall be permitted to engage in other business or
charitable activities (as an active participant or a passive investor), provided
that such activities are not rendered for a company which transacts business
with the Company or engages in business competitive with that conducted by the
Company (or, if such company does transact business with the Company or does
engage in a competitive business, either it is a publicly held corporation and
the
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Executive's participation is limited to owning less than 1/4 of 1% of its
outstanding shares) and further provided that such activities (individually or
collectively) do not materially interfere with the performance of his duties or
responsibilities under this Agreement.
(e) The Executive's services hereunder shall be performed at the
offices of the Company in San Francisco, California (or such other location to
which the primary office of the Company shall be moved), subject to necessary
travel requirements of his position and duties hereunder.
4. COMPENSATION
(a) As compensation for his services hereunder and in
consideration of his agreement not to compete as set forth in Section 8 below,
during the Term, the Company shall pay the Executive, in accordance with its
normal payroll practices, direct salary compensation at an annual rate of
$80,000. The Executive's annual rate of salary compensation may be increased
(but not decreased) by or under the authority of the Chief Executive Officer of
the Company in accordance with the salary review policy of the Company as in
effect from time to time.
(b) In addition to the salary compensation provided for under
clause (a) above, during the Term the Executive shall be eligible to receive
discretionary bonus compensation in an amount determined by the Board.
(c) During the Term, the Executive shall be eligible to
participate in and receive awards under the Company's 1997 Stock Option Plan (or
any other compensation plan hereafter adopted by the Company), in the discretion
of the Board (or any compensation committee thereof).
5. EXPENSES; FRINGE BENEFITS
(a) In addition to the compensation provided for under Section
4, the Company agrees to pay or to reimburse the Executive during the Term for
all reasonable, ordinary and necessary vouchered business or entertainment
expenses incurred in the performance of his services hereunder in accordance
with the policy of the Company as from time to time in effect. The Executive, as
a condition precedent to obtaining such payment or
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reimbursement, shall provide to the Company any and all statements, bills or
receipts evidencing the travel or out-of-pocket expenses for which the Executive
seeks payment or reimbursement, and any other information or materials, as the
Company may from time to time reasonably require.
(b) During the Term, the Executive and, to the extent eligible,
his dependents, shall be entitled to participate in and receive all benefits
under any welfare benefit plans and programs provided by the Company (including
without limitation, medical, dental, disability, group life (including
accidental death and dismemberment) and business travel insurance plans and
programs) applicable generally to the employees of the Company.
(c) During the Term, the Executive shall be entitled to
participate in all retirement plans and programs (including without limitation
any profit sharing/401(k) plan) applicable generally to the employees of the
Company, subject, however, to generally applicable eligibility and other
provisions of the various plans and programs in effect from time to time. In
addition, during the Term, the Executive shall be entitled to receive fringe
benefits and perquisites in accordance with the plans, practices, programs and
policies of the Company from time to time in effect and available generally to
the senior executives of the Company.
(d) The Executive shall be entitled to __ weeks paid vacation
during each calendar year of the Term, to be taken at such time(s) as shall not,
in the reasonable judgment of the Chief Executive Officer of the Company,
materially interfere with the Executive's fulfillment of his duties hereunder,
and shall be entitled to as many holidays, sick days and personal days as are in
accordance with the policy of the Company then in effect for its senior
executives generally, upon such terms as may be generally applicable to senior
executives of the Company.
(e) Notwithstanding anything to the contrary contained above,
the Company shall be entitled to terminate or reduce any employee benefit or
perquisite enjoyed by the Executive pursuant to the provisions of Section 5(b),
(c) or (d) above if such reductiori is part of an across-the-board reduction
applicable to all executive officers of the Company.
6. TERMINATION
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(a) The Company, by direction of its Chief Executive Officer,
shall be entitled to terminate the Term and to discharge the Executive for
"CAUSE" effective upon the giving of written notice which notice shall in each
case refer to this Section 6 and set out in detail the Company's determination
of "cause". The term "CAUSE" shall be limited to the following grounds:
(i) The Executive's repeated failure or refusal to
materially perform his duties and responsibilities as set forth
in Section 3 hereof, or the failure of the Executive to devote
substantially all of his business time and attention exclusively
to the business and affairs of the Company in accordance with
the terms hereof, in each case if such failure or refusal is not
cured within 10 days after written notice thereof to the
Executive by the Company;
(ii) The willful misappropriation of the funds or
property Company;
(iii) Use of alcohol or illegal drugs, interfering with
the performance of the Executive's obligations under this
Agreement, continuing after written warning;
(iv) Conviction in a court of law of, or entering a plea
of guilty or no contest to, any felony or any crime involving
moral turpitude, dishonesty or theft;
(v) The commission in bad faith by the Executive of any
act which injures or could reasonably be expected to injure the
reputation, business or business relationships of the Company,
including without limitation, a willful or intentional breach of
the provisions of Section 8 of this Agreement; and
(vi) Any material breach (not covered by any of the
clauses (i) through (v)) of any term, provision or condition of
this Agreement, if such breach is not cured within 30 days after
written notice thereof to the Executive by the Company.
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Upon the termination of the employment of the Executive with the Company (x)
pursuant to this Section 6(a) or (y) by virtue of a resignation by the Executive
other than pursuant to Section 2(a) above, the Company shall pay the Executive,
subject to any Offsets, his salary compensation and any unused accrued vacation
only through, and any unpaid reimbursable expenses outstanding as of, the Date
of Termination. Any benefits to which the Executive or his beneficiaries may be
entitled under the plans and programs described in Sections 5(b) and (c) above,
or any other applicable plans and programs, shall be determined as of the Date
of Termination in accordance with the terms of such plans and programs. Except
as provided in this Section 6(a), in connection with the Executive's termination
by the Company for cause, the Company shall have no further liability to the
Executive or the Executive's heirs, beneficiaries or estate for damages,
compensation, benefits, severance, indemnities or other amount of whatever
nature.
(b) In the event of a termination without cause by the Company
excluding a termination by the Company under Section 2(a) above (a "WRONGFUL
TERMINATION"), as liquidated damages, the Executive shall be entitled to
continue to receive from the Company, subject to any Offsets, for so long as the
Executive is not in breach of his obligations to the Company under Section 8
hereof, (i) his then applicable salary compensation when otherwise payable
through the minimum remaining Term reduced by any income earned from subsequent
employment, and (ii) any unpaid reimbursable expenses outstanding, and any
unused accrued vacation, as of the Date of Termination. Any benefits to which
Executive or his beneficiaries may be entitled under the plans and programs
described in Sections 5(b) and (c) above, or any other applicable plans and
programs, shall be determined as of the Date of Termination in accordance with
the terms of such plans and programs. In connection with a Wrongful Termination,
except as provided in this Section 6(b), (x) the Company shall have no further
liability to the Executive or the Executive's heirs, beneficiaries or estate for
damages, compensation, benefits, severance, indemnities or other amount of
whatever nature and (y) the Executive shall be under no obligation to mitigate
his damages or to seek other employment; provided that, as indicated in this
Section 6(c), any income earned by the Executive from subsequent employment
shall reduce payments by the Company under Section 6(c)(i). From time to time,
upon the Company's reasonable request, the Executive shall provide the Company
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written verification of amounts earned from subsequent employment. In the event
the Executive fails to supply such information, the obligations of the Company
to the Executive under this Section 6(c) shall terminate.
7. DISABILITY; DEATH
(a) In the event the Executive shall be unable to perform his
duties hereunder by virtue of illness or physical or mental incapacity or
disability (from any cause or causes whatsoever) in substantially the manner and
to the extent required hereunder prior to the commencement of such disability
(all such causes being herein referred to as "DISABILITY") and the Executive
shall fail to perform such duties for periods aggregating 180 days, whether or
not continuous, in any continuous period of 270 days, the Company shall have the
right to terminate the Executive's employment hereunder as at the end of any
calendar month during the continuance of such disability upon at least 30 days'
prior written notice to him, which notice shall refer to this Section. In the
event of the Executive's death, the Executive's employment shall terminate on
the date of such death.
(b) In the event the Executive's employment terminates pursuant
to Section 7(a), the Executive, or in the case of his death, the Executive's
estate, shall be entitled to, receive when otherwise payable, subject to any
Offsets, (i) all salary compensation earned but unpaid as of the Date of
Termination and (ii) any unpaid reimbursable expenses outstanding, and any
unused accrued vacation, as of such date. Any benefits to which the Executive or
his beneficiaries may be entitled under the plans and programs described in
Sections 5(b) and (c) above, or any other applicable plans and programs, shall
be determined as of the Date of Termination in accordance with the terms of such
plans and programs. In the event of the Executive's termination due to
disability or death, except as provided in this Section 7(b), the Company shall
have no further liability to the Executive or the Executive's heirs,
beneficiaries or estate for damages, compensation, benefits, severance,
indemnities or other amounts of whatever nature.
8. NON-COMPETITION AND PROTECTION OF CONFIDENTIAL INFORMATION
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(a) The Executive agrees that his services hereunder are of a
special, unique, extraordinary and intellectual character, and his position with
the Company places him in a position of confidence and trust with the clients
and employees of the Company. The Executive acknowledges that the rendering of
services to the clients of the Company necessarily requires the disclosure to
the Executive of confidential information and trade secrets of the Company (such
as without limitation, proprietary software programs, marketing plans, media
plans, budgets, corporate policies, client preferences and policies, and
identity of appropriate personnel of clients with sufficient authority to
influence a shift in suppliers). The parties hereto agree that in the course of
the Executive's employment with the Company, the Executive has and will continue
to develop a personal relationship with the clients of the Company and a
knowledge of those clients' affairs and requirements, and that the relationship
of the Company with its established clientele will therefore be placed in the
Executive's hands in confidence and trust. The Executive consequently agrees
that it is reasonable and necessary for the protection of the trade secrets,
goodwill and business of the Company that the Executive make the covenants
contained herein. Accordingly, the Executive agrees that while he is in the
employ of the Company and for a two year period after the Date of Termination,
he shall not, except on behalf of the Company, directly or indirectly, and
regardless of the reason for his ceasing to be employed by the Company:
(i) attempt in any manner to solicit from any client
business of the type performed by the Company or to persuade any
client to cease to do business or to reduce the amount of
business which any such client has customarily done or is
reasonably expected to do with the Company, whether or not the
relationship between the Company and such client was originally
established in whole or in part through his efforts; or
(ii) employ as an employee or retain as an exclusive
consultant any person who is then or at any time during the
preceding twelve months was an employee of or exclusive
consultant to the Company or the Company, or persuade or attempt
to persuade any employee of or exclusive consultant to the
Company to
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leave the employ of the Company or to become employed as an
employee or retained as a consultant by anyone other than the
Company; or
(iii) render to or for any client any services of the
type rendered by the Company.
As used in this Section 8, the term "CLIENT" shall mean (1) anyone who is a
client of the Company on the Date of Termination or, if the Executive's
employment shall not have terminated, at the time of the alleged prohibited
conduct (the "DETERMINATION DATE"); (2) anyone who was a client of the Company
at any time during the two year period immediately preceding the Determination
Date; and (3) any prospective clients to whom the Company had made a new
business presentation (or similar offering of services) at any time during the
one year period immediately preceding the Determination Date.
(b) The Executive also agrees that he will not at any time
(whether during the Term or after termination of this Agreement), disclose to
anyone any confidential, information or trade secret of the Company, or any
client of the Company, or utilize such confidential information or trade secret
for his own benefit, or for the benefit of third parties and all memoranda,
notes, records or other documents compiled by him or made available to him
during the Term pertaining to the business of the Company or its clients shall
be the property of the Company and shall be delivered to the Company on the
termination of his employment or at any other time, upon request. The term
"confidential information or trade secret" does not include information which
(i) becomes generally available to the public other than by breach of this
provision or (ii) the Executive learns from a third party who is not under an
obligation of confidence to the Company. In the event that the Executive becomes
legally required to disclose any confidential information or trade secret, he
will provide the Company with prompt notice thereof so that the Company may seek
a protective order or other appropriate remedy and/or waive compliance with the
provisions of this Section 8(b). In the event that such protective order or
other remedy is not obtained, or the Company waives compliance with the
provisions of this Section 8(b), the Executive will furnish only that portion of
the confidential information or trade secret which is legally required and will
exercise his best efforts to obtain a protective order or
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other reliable assurance that confidential treatment will be accorded the
confidential information or trade secret.
(c) If the Executive commits a breach, or is about to commit a
breach, of any of the provisions of Sections 8(a) or (b) above, the Company
shall have the right to have the provisions of this Agreement specifically
enforced by any court having equity jurisdiction without being required to post
bond or other security and without having to prove the inadequacy of the
available remedies at law, it being acknowledged and agreed that any such breach
or threatened breach will cause irreparable injury to the Company and that money
damages will not provide an adequate remedy to the Company. In addition, the
Company may take all such other actions and remedies available to it under law
or in equity and shall be entitled to such damages as it can show it has
sustained by reason of such breach.
(d) The parties acknowledge that the type and periods of
restriction imposed in the provisions of Sections 8(a) and (b) above are fair
and reasonable and are reasonably required for the protection of the Company and
the goodwill associated with the business of the Company (including without
limitation the business acquired pursuant to the Purchase Agreement); and that
the time, scope, geographic area and other provisions of this Section 8 have
been specifically negotiated by sophisticated commercial parties and are given
as an integral part of the transactions contemplated by the Purchase Agreement,
it being understood that the clients of the Company may be serviced from any
location and accordingly it is reasonable that the restrictive covenants set
forth herein are not limited by narrow geographic area but generally by the
location of such clients and potential clients. The Executive specifically
acknowledges that his being restricted from servicing clients and prospective
clients as contemplated by this Agreement will not prevent him from being
employed or earning a livelihood in the type of business conducted by the
Company. If any of the covenants in Sections 8(a) or (b) above, or any part
thereof, is hereafter construed to be invalid or unenforceable, the same shall
riot affect the remainder of the covenant or covenants, which shall be given
full effect, without regard to the Invalid portions. If any of the covenants
contained in Sections 8(a) or (b), or any part thereof, is held to be
unenforceable because of the 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
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duration and/or areas of such provision and, in its reduced form, such provision
shall then be enforceable. The parties hereto intend to and hereby confer
jurisdiction to enforce the covenants contained in Sections 8(a) and (b) above
upon the courts of any state or other jurisdiction within the geographical scope
of such covenants in which a breach or alleged breach of a covenant contained in
Section 8(a) or (b) has been alleged to have occurred. In the event that the
courts of any one or more of such states or other jurisdictions shall hold such
covenants 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 right of the Company to the relief provided above
in the courts of any other states or other jurisdictions within the geographical
scope of such covenants, as to breaches of such covenants in such other
respective states or other jurisdictions, the above covenants as they relate to
each state or other jurisdiction being, for this purpose, severable into diverse
and independent covenants.
9. INTELLECTUAL PROPERTY
During the Term, the Executive will disclose to the Company all
ideas, inventions and business plans developed by him during such period which
relate directly or indirectly to the business of the Company, including without
limitation, any design, logo, slogan or campaign or any process, operation,
product or improvement which may be patentable or copyrightable. The Executive
agrees that all patents, licenses, copyrights, tradenames, trademarks, service
marks, advertising campaigns, promotional" campaigns, designs, logos, slogans
and business plans developed or created by the Executive in the course of his
employment hereunder, either individually or in collaboration with others, will
be deemed works for hire and the sole and absolute property of the Company. The
Executive agrees, that at the Company's request, he will take all steps
necessary to secure the rights thereto to the Company by patent, copyright or
otherwise. The Executive acknowledges and agrees that the Company has hereby
notified the Executive that the assignment provided for in this Section 9 does
not apply to any invention which qualifies fully for exemption for assignment
under the provisions of Section 2870 of the California Labor Code, a copy of
which is attached hereto as Exhibit A.
10. ENFORCEABILITY
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The failure of any party at any time to require performance by
another party of any provision hereunder shall in no way affect the right of
that party thereafter to enforce the same, nor shall it affect any other party's
right to enforce the same, or to enforce any of the other provisions in this
Agreement; nor shall the waiver by any party of the breach of any provision
hereof be taken or held to be a waiver of any subsequent breach of such
provision or as a waiver of the provision itself.
11. ASSIGNMENT
This Agreement is a personal contract and the Executive's rights
and obligations hereunder may not be sold, transferred, assigned, pledged or
hypothecated by the Executive. The rights and obligations of the Company
hereunder shall be binding upon and run in favor of the successors and assigns
of the Company; provided, however, the Company may not assign or transfer its
rights under this Agreement except in connection with a merger or consolidation
(whether or not the Company is the continuing entity), or the sale or
liquidation of all or substantially all the assets of the Company and such
assignee or transferee assumes the liabilities, obligations and duties of the
Company as contained in this Agreement, either contractually or as a matter of
law.
12. MODIFICATION
This Agreement may not be orally canceled, changed, modified or
amended, and no cancellation, change, modification or amendment shall be
effective or binding, unless in writing and signed by the parties to this
Agreement and approved by the President of Omnicom.
13. SEVERABILITY: SURVIVAL
In the event any provision or portion of this Agreement is
determined to be invalid or unenforceable for any reason, in whole or in part,
the remaining provisions of this Agreement shall nevertheless be binding upon
the parties with the same effect as though the invalid or unenforceable part had
been severed and deleted. The respective rights and obligations of the parties
hereunder shall survive the termination of the Executive's employment to the
extent necessary to the intended preservation of such rights and obligations.
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14. LIFE INSURANCE
The Executive agrees that the Company shall have the right to
obtain life insurance on the Executive's life, at the sole expense of the
Company and with the Company as the sole beneficiary thereof. The Executive
shall (a) cooperate fully in obtaining such life insurance, (b) sign any
necessary consents, applications and other related forms or documents and (c)
take any reasonably required medical examinations.
15. NOTICES
Any notice, request, instruction or other document to be given
hereunder by any party hereto to another party shall be in writing and shall be
deemed effective (a) upon personal delivery, if delivered by hand, or (b) three
days after the date of deposit in the mails, postage prepaid, if mailed by
certified or registered mail, or (c) on the next business day, if sent by
facsimile transmission (if receipt is electronically confirmed) or prepaid
overnight courier service, and in each case, addressed as follows:
If to the Executive:
Xxxxxxx Xxxxx
_______________________________
_______________________________
If to the Company. to:
Organic Online, Inc.
000 Xxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Director of Finance
Fax: 000-000-0000
with a copy to:
Xxxxxx Godward LLP
Xxx Xxxxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Fax: 000-000-0000
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Any party may change the address to which notices are to be sent by giving
notice of such change of address to the other party in the manner herein
provided for giving notice.
16. APPLICABLE LAW
This Agreement shall be governed by and construed in accord laws
of the State of California without regard to its conflict of laws principles.
17. NO CONFLICT
The Executive represents and warrants that he is not subject to
any agreement, instrument, order, judgment or decree of any kind, or any other
restrictive agreement of any character, which would prevent him from entering
into this Agreement or which would be breached by the Executive upon his
performance of his duties pursuant to this Agreement.
18. ENTIRE AGREEMENT
This Agreement represents the entire agreement between the
Company and the Executive with respect to the subject matter hereof, and all
prior agreements, plans and arrangements relating to the employment of the
Executive by the Company are nullified and superseded hereby. Notwithstanding
the foregoing, the Employee Proprietary Information and Inventions Agreement
executed by the Executive shall remain in full force and effect in accordance
with its terms.
19. HEADINGS
The headings contained in this Agreement are for reference
purposes only and shall not affect the meaning or interpretation of this
Agreement.
20. MISCELLANEOUS
(a) The Company may withhold from any amounts payable under this
Agreement such federal, state and local taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
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(b) Following the date hereof and regardless of any dispute that
may arise in the future, the Executive will not, and will use his best efforts
to cause his business associates to not, disparage, criticize or make statements
to the detriment of the Company, Omnicom, or any of their affiliates; and the
Company will not, and will use its best efforts to cause its affiliated
companies to not, disparage, criticize or make statements to the detriment of
the Executive.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
ORGANIC ONLINE, INC.
BY: /s/ XXXXXXXX XXXXXX
-----------------------------------
NAME: Xxxxxxxx Xxxxxx
TITLE: Chief Executive Officer
/s/ XXXXXXX XXXXX
---------------------------------------
XXXXXXX XXXXX
x x
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EXHIBIT A
TO EMPLOYMENT AGREEMENT
Labor Code Section 2870,
Employment agreements; assignment of rights
(a) Any provision in an employment agreement which provides that
an employee shall assign, or offer to assign, any of his or her rights in an
invention to his or her employer shall not apply to an invention that the
employee developed entirely on his or her own time without using the employer's
equipment, supplies, facilities, or trade secret information except for those
inventions that either:
(i) relate at the time of conception or reduction to practice of
the invention to the employer's business, or actual or
demonstrably anticipated research or development of the
employer; or
(ii) result from any work performed by the employee for the
employer.
(b) To the extent a provision in an employment agreement
purports to require an employee to assign an invention otherwise
excluded from being required to be(TM) assigned under
subdivision (a), the provision is against the public policy of
this state and is unenforceable.
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AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
THIS AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT ("Amendment") is entered
into by and between ORGANIC ONLINE, INC., a Delaware corporation (the
"Company"), and XXXXXXX XXXXX (the "Executive").
RECITALS
A. The Company and the Executive are parties to that certain Employment
Agreement dated December 29, 1997 (the "Original Agreement").
B. The Company and the Executive wish to amend the Original Agreement on
the terms set forth in this Amendment. Certain capitalized terms used in this
Amendment are defined in the Original Agreement.
AGREEMENT
The Company and the Executive, intending to be legally bound, agree as
follows:
SECTION 1. MODIFICATION OF ORIGINAL AGREEMENT. The fourth line of Section 4(a)
("Compensation") is hereby amended to delete "$80,000" and substitute
"$140,000" therefore.
SECTION 2. MISCELLANEOUS PROVISIONS.
2.1 REAFFIRMATION OF ORIGINAL AGREEMENT. The Original Agreement, as
amended by this AMENDMENT, shall continue in full force and effect.
2.2 GOVERNING LAW. This Amendment shall be construed in accordance with,
and governed in all respects by, the laws of the State of California (without
giving effect to principles of conflicts of law.)
2.3 HEADINGS. The underlined headings contained in this Amendment are
for convenience of reference only, shall not be deemed to be a part of this
Amendment and shall not be referred to in connection with the construction or
interpretation of this Amendment.
2.4 SEVERABILITY. In the event that any provision of this Amendment, or
the application of such provision to any party or set of circumstances, shall be
determined to be invalid, unlawful, void or unenforceable to any extent, the
remainder of this Amendment, and the application of such provision to Persons or
circumstances other than those as to which it is determined to be invalid,
unlawful, void or unenforceable, shall not be affected and shall continue to be
valid and enforceable to the fullest extent permitted by law.
19
2.5 COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which when so executed shall constitute an original copy
hereof, but all of which together shall constitute one agreement.
2.6 INTERPRETATION OF AMENDMENT.
(a) Each party hereto acknowledges that it has participated in
the drafting of this Amendment, and any applicable rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall not
be applied in connection with the construction or interpretation of this
Amendment.
(b) Whenever required by the context hereof, the singular number
shall include the plural, and vice versa; the masculine gender shall include the
feminine and neuter genders; and the neuter gender shall include the masculine
and feminine genders.
(c) As used in this Amendment, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, and shall be deemed to be followed by the words "without
limitation."
(d) References herein to "Sections" are intended to refer to
Sections of this Amendment.
The Company and the Executive have caused this Amendment to be executed
as of February 24, 1997.
the "Company"
ORGANIC ONLINE, INC.
a Delaware corporation
By: /s/ XXXXXXXX XXXXXX
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Xxxxxxxx Xxxxxx
Chief Executive Officer
the "Executive"
/s/ XXXXXXX XXXXX
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XXXXXXX XXXXX
