EXHIBIT 10.35
EMPLOYMENT AGREEMENT dated as of
December 10, 2003, between GREENFIELD
ONLINE, INC., a Delaware corporation (the
"Company"), and XXXXX XXXXX (the
"Executive").
The Company is engaged in the business (the "Subject Business") of
providing marketing research data collection services over the Internet. The
Executive has experience in the field of senior level corporate management,
which experience is valuable to the Subject Business and the Company and the
Company desires to employ and the Executive desires to be employed as the
Company's Senior Vice President Marketing and Strategy.
The Executive and the Company desire to enter into this Employment
Agreement to set forth the terms governing the Executive's employment as well as
to provide adequate and reasonable protection for the Company's legitimate
business interest of safeguarding its trade secrets, confidential information,
customer and employee relationships.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. INTENTIONALLY OMITTED.
SECTION 2. EMPLOYMENT.
The Company shall employ the Executive, and the Executive accepts
employment with the Company, as an employee-at-will upon the terms and
conditions set forth in this Agreement for the period beginning on the Effective
Date (as defined in Section 15(j)) and ending on the Termination Date determined
pursuant to Section 5(a) (the "Employment Period"). THIS IS NOT A CONTRACT OF
EMPLOYMENT. EXECUTIVE IS AN EMPLOYEE-AT-WILL AND MAY BE TERMINATED BY COMPANY AT
ANY TIME WITH OR WITHOUT CAUSE.
SECTION 3. BASE SALARY, BONUS AND BENEFITS.
(a) During the Employment Period, the Executive's base salary shall
be $160,000 per annum or such other rate as the Compensation Committee of the
Board (excluding the Executive if he should be a member of the Board or the
Compensation Committee at the time of such determination) may designate from
time to time (the "Base Salary"), which salary shall be reviewed by the
Compensation Committee on an annual basis and payable in such installments as is
customary for other senior executives of the Company. In addition, during the
Employment Period, the Executive shall be entitled to (i) participate in all
employee benefit programs and published bonus programs for which other senior
executives of the Company are generally eligible, (ii) be eligible to
participate in all insurance plans available generally to other senior
executives of the Company, and (iv) take 3 weeks of paid vacation annually. In
the case of any partial month during the Employment Period, reimbursements,
payments and other entitlements pursuant to this Section 3 shall be made or
provided to the Executive on a per diem basis.
(b) In addition to the Base Salary and benefits set forth in
paragraph (a) above, during the Employment Period the Executive shall be
entitled to receive performance bonuses in accordance with the terms enjoyed by
other members of the senior management team. For Fiscal Year 2004 at 100% of
plan, the Executive's performance bonus will be $90,000. In subsequent years of
the Employment Period the bonus plan will be determined within the first quarter
of each fiscal year.
(c) The Company shall reimburse Executive for reasonable relocation
expenses up to $15,000; provided such expenses are substantiated with adequate
receipts and such expenses are incurred on or before May 31, 2004.
(d) The Company will grant the Executive options (the "Options") to
purchase 750,000 shares of Common Stock, $.0001 par value with an exercise price
of $_____ per share, of the Company pursuant to the GREENFIELD ONLINE, INC.
AMENDED AND RESTATED 1999 STOCK OPTION PLAN (the "Option Plan"). The Options
will be evidenced by a Stock Option Agreement between the Executive and the
Company in a form and according to the terms identified in Exhibit __ attached
hereto. The Option Plan and the Stock Option Agreement will contain all of the
terms and conditions of the Executive's Options. As a condition to receipt of
the Options the Executive will be required to sign a Retained Shareholder
Joinder to the Company's Shareholders' Agreement dated as of May 17, 1999 as
Amended and Shareholder Joinder to the Company's Registration Rights Agreement
dated as of May 17, 1999, as amended.
(e) The Company shall reimburse the Executive for all reasonable
expenses incurred by him in the course of performing his duties under this
Agreement which are consistent with the Company's policies in effect from time
to time with respect to travel, entertainment and other business expenses,
subject to the Company's requirements with respect to reporting and
documentation of such expenses.
(f) The Company shall deduct from any payments to be made by it to
the Executive under this Agreement any amounts required to be withheld in
respect of any Federal, state or local income or other taxes.
SECTION 4. POSITION AND DUTIES.
(a) During the Employment Period, the Executive shall initially
serve as Senior Vice President Marketing and Strategy, and shall report to the
President and CEO. The Executive shall perform his duties at the Company's
Wilton, CT offices. The Executive acknowledges and agrees that he owes a
fiduciary duty of loyalty to the Company to discharge his duties and otherwise
act in a manner consistent with the best interests of the Company and its
Subsidiaries.
(b) During the Employment Period, the Executive shall devote his
best efforts and full working time, attention and energies to the performance of
his duties and responsibilities under this Agreement (except for vacations to
which he is entitled pursuant to Section 3(a) and except for illness or
incapacity). During the Employment Period, the Executive shall not engage in any
business activity which, in the reasonable judgment of the Board (excluding the
Executive if he should be a member of the Board at the time of such
determination), conflicts with the
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duties of the Executive hereunder, whether or not such activity is pursued for
gain, profit or other pecuniary advantage.
SECTION 5. TERMINATION.
(a) Termination Date. The Executive's employment under this
Agreement shall terminate upon the earliest to occur (the date of such
occurrence being the "Termination Date") of (i) the effective date of the
Executive's resignation (a "Resignation"), (ii) the Executive's death or
Disability (an "Involuntary Termination"), (iv) the effective date of a
termination of the Executive's employment for Cause by the Board or the
President of the Company (a "Termination for Cause"), and (v) the effective date
of a termination of the Executive's employment by the Board for reasons that do
not constitute Cause (a "Termination Without Cause"). The effective date of a
Resignation shall be as determined under Section 5(b); the effective date of an
Involuntary Termination shall be the date of death or, in the event of a
Disability, the date specified in a notice delivered to the Executive by the
Company; and the effective date of a Termination for Cause or a Termination
Without Cause shall be the date specified in a notice delivered to the Executive
by the Company of such termination.
(b) Resignation. The Executive shall give the Company at least 30
days' prior written notice of a Resignation, with the effective date of such
Resignation specified therein. The Company may, in its discretion, accelerate
the effective date of the Resignation.
SECTION 6. EFFECT OF TERMINATION; SEVERANCE.
(a) In the event of a Termination Without Cause, the Executive or
his beneficiaries or estate shall have the right to receive the following:
(i) the unpaid portion of the Base Salary, computed on a pro
rata basis to the Termination Date;
(ii) the unpaid portion of the Base Salary for the period
beginning on the Termination Date and ending thirty (30) days from the
Termination Date., payable in the same amounts and at the same intervals
as the Base Salary was paid immediately prior to the Termination Date;
provided, however, that in the event of a breach by the Executive of
Section 7, 8, 9 or 10 on or after the Termination Date, the provisions of
Section 12 shall apply;
(iii) reimbursement for any expenses for which the Executive
shall not have been previously reimbursed, as provided in Section 3(c);
and
(iv) the portion of any bonus payable in accordance with
Section 3(b) for the calendar year in which such termination occurs, pro
rated through the date of such termination on a per diem basis.
(b) In the event of a Termination for Cause, an Involuntary
Termination or a Resignation, the Executive or his beneficiaries or estate shall
have the right to receive the following:
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(i) the unpaid portion of the Base Salary, computed on a pro
rata basis to the Termination Date; and
(ii) reimbursement for any expenses for which the Executive
shall not have been previously reimbursed, as provided in Section 3(c).
(c) Upon any termination, neither the Executive nor his
beneficiaries or estate shall have any further rights under this Agreement or
any rights arising out of this Agreement other than as provided in Sections 6(a)
and (b) above.
SECTION 7. NONDISCLOSURE AND NONUSE OF CONFIDENTIAL INFORMATION.
The Executive will not disclose or use at any time, either during
the Employment Period and for a period of five years thereafter, any
Confidential Information of which the Executive is or becomes aware, whether or
not such information is developed by him, except to the extent that such
disclosure or use is directly related to and required by the Executive's
performance of duties assigned to the Executive by the Company.
SECTION 8. INVENTIONS AND PATENTS.
The Executive agrees that all Work Product belongs to the Company.
The Executive will promptly disclose such Work Product to the Board and perform
all actions reasonably requested by the Board (whether during or after the
Employment Period) to establish and confirm such ownership (including, without
limitation, the execution and delivery of assignments, consents, powers of
attorney and other instruments) and to provide reasonable assistance to the
Company in connection with the prosecution of any applications for patents,
trademarks, trade names, service marks or reissues thereof or in the prosecution
or defense of interferences relating to any Work Product.
SECTION 9. NON-COMPETE, NON-SOLICITATION, NON-DISPARAGEMENT.
The Executive acknowledges and agrees with the Company that, during
the course of the Executive's employment with the Company, the Executive has had
and will continue to have the opportunity to develop relationships with existing
employees, customers and other business associates of the Company and its
Subsidiaries which relationships constitute goodwill of the Company, and the
Company would be irreparably damaged if the Executive were to take actions that
would damage or misappropriate such goodwill. Accordingly, the Executive agrees
as follows:
(a) The Executive acknowledges that the Company currently conducts
the Subject Business throughout the world (the "Territory"). Accordingly, during
the term hereof and until the first anniversary of the Termination Date (the
"Non-Compete Period"), the Executive shall not, directly or indirectly, enter
into, engage in, assist, give or lend funds to or otherwise finance, be employed
by or consult with, or have a financial or other interest in, any business which
competes or could, in the reasonable judgment of the Board, be deemed to be in
competition with, at the time in question, the Company within the Territory,
whether for or by himself or as an independent contractor, agent, stockholder,
partner or joint venturer for any other Person. To the extent that the covenant
provided for in this Section 9(a) may later be deemed by a court to
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be too broad to be enforced with respect to its duration or with respect to any
particular activity or geographic area, the court making such determination
shall have the power to reduce the duration or scope of the provision, and to
add or delete specific words or phrases to or from the provision. The provision
as modified shall then be enforced.
(b) Notwithstanding the foregoing, the aggregate ownership by the
Executive of no more than two percent (on a fully-diluted basis) of the
outstanding equity securities of any Person, which securities are traded on a
national or foreign securities exchange, quoted on the NASDAQ stock market or
other automated quotation system, and which Person competes with the Company (or
any part thereof) within the Territory, shall not be deemed to be a violation of
Section 9(a). In the event that any Person in which the Executive has any
financial or other interest directly or indirectly enters into a business during
the Non-Compete Period that competes with the Company within the Territory, the
Executive shall divest all of his interest (other than as permitted to be held
pursuant to the first sentence of this Section 8(b)) in such Person within 15
days after such Person enters into such business that competes with the Company
within the Territory.
(c) The Executive covenants and agrees that, during the period
commencing with the Effective Date and ending on the first anniversary of the
date on which the Executive ceases to be employed by the Company for any reason
whatsoever, the Executive will not, directly or indirectly, either for himself
or for any other Person (A) solicit any employee of the Company or any of its
Subsidiaries to terminate his or her employment with the Company or any of its
Subsidiaries or employ any such individual during his or her employment with the
Company or any of its Subsidiaries and for a period of one year after such
individual terminates his or her employment with the Company or any of its
Subsidiaries, (B) solicit any customer of the Company or any of its Subsidiaries
to purchase or distribute information, products or services of or on behalf of
the Executive or such other Person that are competitive with the information,
products or services provided by the Company or any of its Subsidiaries, or (c)
take any action that may cause injury to the relationships between the Company
or any of its Subsidiaries or any of their employees and any lessor, lessee,
vendor, supplier, customer, distributor, employee, consultant or other business
associate of the Company or any of its Subsidiaries as such relationship relates
to the Company's or any of its Subsidiaries' conduct of their business.
(d) The Executive understands that the foregoing restrictions may
limit his ability to earn a livelihood in a business which is competitive with
the business of the Company and any of its Subsidiaries, but he nevertheless
believes that he has received and will receive sufficient consideration and
other benefits as an employee of the Company and as otherwise provided hereunder
or as described in the recitals hereto to clearly justify such restrictions
which, in any event (given his education, skills and ability), the Executive
does not believe would prevent him from otherwise earning a living.
SECTION 10. DELIVERY OF MATERIALS UPON TERMINATION OF EMPLOYMENT.
The Executive shall deliver to the Company at the termination of the
Employment Period or at any time the Company may request all memoranda, notes,
plans, records, reports,
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computer tapes and software and other documents and data (and copies thereof)
relating to the Confidential Information, Work Product or the Subject Business
which he may then possess or have under his control regardless of the location
or form of such material and, if requested by the Company, will provide the
Company with written confirmation that all such materials have been delivered to
the Company.
SECTION 11. INSURANCE.
The Company may, for its own benefit, maintain "keyman" life and
disability insurance policies covering the Executive. The Executive will
cooperate with the Company and provide such information or other assistance as
the Company may reasonably request in connection with the Company obtaining and
maintaining such policies.
SECTION 12. ENFORCEMENT.
Because the Executive's services are unique and because the
Executive has access to Confidential Information and Work Product, the parties
hereto agree that money damages would be an inadequate remedy for any breach of
this Agreement. Therefore, in the event of a breach or threatened breach of this
Agreement, the Company or its successors or assigns may, in addition to other
rights and remedies existing in their favor, apply to any court of competent
jurisdiction for specific performance and/or injunctive or other relief in order
to enforce, or prevent any violations of, the provisions hereof (without posting
a bond or other security). In addition to the foregoing, and not in any way in
limitation thereof, or in limitation of any right or remedy otherwise available
to the Company, if the Executive violates any provision of the foregoing
Sections 7, 8, 9 or 10, any payments then or thereafter due from the Company to
the Executive pursuant to Section 6(a)(ii) shall be terminated forthwith and the
Company's obligation to pay and the Executive's right to receive such payments
shall terminate and be of no further force or effect, in each case without
limiting or affecting the Executive's obligations under such Sections 7, 8, 9 or
10or the Company's other rights and remedies available at law or equity.
SECTION 13. REPRESENTATIONS.
Each party hereby represents and warrants to the other party that
(a) the execution, delivery and performance of this Agreement by such party does
not and will not conflict with, breach, violate or cause a default under any
agreement, contract or instrument to which such party is a party or any
judgment, order or decree to which such party is subject, and (b) upon the
execution and delivery of this Agreement by such party, this Agreement will be a
valid and binding obligation of such party, enforceable in accordance with its
terms, except as enforcement hereof may be limited by any applicable bankruptcy,
reorganization, insolvency or other laws affecting creditors rights generally or
by general principles of equity. In addition, the Executive represents and
warrants to the Company that the Executive is not a party to or bound by any
employment agreement, consulting agreement, non-compete agreement,
confidentiality agreement or similar agreement with any other Person. The
Company and the Executive hereby terminate all existing employment or consulting
agreements between them, if any, to the extent such agreements may be in effect
after the date hereof.
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SECTION 14. DEFINITIONS.
"Board" shall mean the board of directors of the Company.
"Business Day" shall mean any day that is not a Saturday, Sunday, or
a day on which banking institutions in New York are not required to be open.
"Cause" shall mean (i) the Executive's material breach of any of the
terms of this Agreement; (ii) the conviction of or entry of a plea of nolo
contender to a crime involving fraud, theft or dishonesty by the Executive;
(iii) the Executive's willful and continuing disregard of lawful instructions of
the Board or superiors (if any) or has engaged in conduct in clear violation of
material policies of the Company; (iv) the continued use of alcohol or drugs by
the Executive to an extent that, in the good faith determination of the Board,
such use interferes in any manner with the performance of the Executive's duties
and responsibilities; or (v) the conviction of the Executive for violating any
Law constituting a felony (including the Foreign Corrupt Practices Act of 1977).
"Confidential Information" means information that is not generally
known to the public and that is used, developed or obtained by the Company or
any of its Subsidiaries in connection with the Subject Business, including, but
not limited to, (i) information, observations, procedures and data obtained by
the Executive while employed by the Company (including those obtained prior to
the date of this Agreement) concerning the business or affairs of the Company or
any of its Subsidiaries, (ii) products or services, (iii) costs and pricing
structures, (iv) analyses, (v) drawings, photographs and reports, (vi) computer
software, including operating systems, applications and program listings, (vii)
flow charts, manuals and documentation, (viii) data bases, (ix) accounting and
business methods, (x) inventions, devices, new developments, methods and
processes, whether patentable or unpatentable and whether or not reduced to
practice, (xi) customers and customer lists, (xii) other copyrightable works,
(xiii) all production methods, processes, technology and trade secrets, and
(xiv) all similar and related information in whatever form. Confidential
Information will not include any information that has been published in a form
generally available to the public prior to the date the Executive proposes to
disclose or use such information. Confidential Information will not be deemed to
have been published merely because individual portions of the information have
been separately published, but only if all material features comprising such
information have been published in combination.
"Disability" shall mean the physical or mental inability of the
Executive (i) to substantially perform all of his duties under this Agreement
for a period of 90 consecutive days or longer or for any 90 days in any period
of 365 consecutive days, or (ii) that, in the opinion of a physician selected by
the Board (excluding the Executive if the Executive is a member of the Board at
such time) is likely to prevent the Executive from substantially performing all
of his duties under this Agreement for more than 90 days in any period of 365
consecutive days.
"Subsidiary" of the Company means and includes (i) any corporation
more than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason
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of the happening of any contingency) is at the time owned by the Company or
indirectly through Subsidiaries and (ii) any partnership, association, joint
venture or other entity (other than a corporation) in which the Company directly
or indirectly through Subsidiaries, has more than a 50% equity interest at the
time.
"Work Product" shall mean all inventions, innovations, improvements,
technical information, systems, software developments, methods, designs,
analyses, drawings, reports, service marks, trademarks, tradenames, logos and
all similar or related information (whether patentable or unpatentable) which
relates to the Company's or any of its Subsidiaries' actual or anticipated
business, research and development or existing or future products or services
and which are conceived, developed or made by the Executive in connection with
or relating to (whether or not during usual business hours and whether or not
alone or in conjunction with any other Person) the Executive's position and
duties while employed by the Company (including those conceived, developed or
made prior to the date of this Agreement) together with all patent applications,
letters patent, trademark, tradename and service xxxx applications or
registrations, copyrights and reissues thereof that may be granted for or upon
any of the foregoing.
SECTION 15. GENERAL PROVISIONS.
(a) Severability. It is the desire and intent of the Parties hereto
that the provisions of this Agreement be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, if any particular provision of this
Agreement shall be adjudicated by a court of competent jurisdiction to be
invalid, prohibited or unenforceable for any reason, such provision, as to such
jurisdiction, shall be ineffective, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of this
Agreement or affecting the validity or enforceability of such provision in any
other jurisdiction. Notwithstanding the foregoing, if such provision could be
more narrowly drawn so as not to be invalid, prohibited or unenforceable in such
jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
(b) Notices. All notices, requests, demands, claims and other
communications hereunder shall be in writing and sufficient if (i) delivered
personally, (ii) delivered by certified United States Post Office mail, return
receipt requested, (iii) telecopied or (iv) sent to the recipient by a
nationally-recognized overnight courier service (charges prepaid) and addressed
to the intended recipient as set forth below:
(a) if to the Executive, to:
with a copy to:
(b) if to the Company, to:
Greenfield Online, Inc.
00 Xxxxx Xxxx
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Xxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx, President and CEO
Telecopier: (000) 000-0000
with copies to:
General Counsel
Greenfield Online, Inc.
00 Xxxxx Xxxx
Xxxxxx, Xxxxxxxxxxx 00000
Telecopier: (000) 000-0000
or such other address as the recipient party to who notice is to be given may
have furnished to the other party in writing in accordance herewith. Any such
communication shall deemed to have been delivered and received (a) in the case
of personal delivery, on the date of such delivery, (b) in the case of delivery
by mail, on the third Business Day following such mailing, (c) if telecopied, on
the date telecopied, and (d) in the case of delivery by nationally-recognized,
overnight courier, on the Business Day following dispatch.
(c) Entire Agreement. This Agreement and the documents expressly
referred to herein embody the complete agreement and understanding among the
parties and supersede and preempt any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related
to the subject matter hereof in any way.
(d) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
(e) Successors and Assigns. Except as otherwise provided herein,
this Agreement shall bind and inure to the benefit of and be enforceable by the
Executive and the Company and their respective successors, assigns, heirs,
representatives and estate, as the case may be; provided, however, that the
obligations of the Executive under this Agreement shall not be assigned without
the prior written consent of the Company.
(f) Amendment and Waiver. The provisions of this Agreement may be
amended and waived only with the prior written consent of the Company and the
Executive, and no course of conduct or failure or delay in enforcing the
provisions of this Agreement shall affect the validity, binding effect or
enforceability of this Agreement or any provision hereof.
(g) Governing Law/Venue. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of Connecticut
without giving effect to any choice or conflict of law provision or rule that
would cause the application of the laws of any jurisdiction other than the State
of Connecticut. The parties agree that any action to enforce the terms of this
Agreement shall be brought in State of Federal Court located in Fairfield County
Connecticut.
(h) Descriptive Headings; Nouns and Pronouns. Descriptive headings
are for convenience only and shall not control or affect the meaning or
construction of any provision of
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this Agreement. Whenever the context may require, any pronouns used herein shall
include the corresponding masculine, feminine or neuter forms, and the singular
form of nouns and pronouns shall include the plural and vice-versa.
(i) Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(j) Effectiveness. This Agreement shall become effective when
executed by both parties (the "Effective Date").
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first written above.
GREENFIELD ONLINE, INC EXECUTIVE
By: By:
-------------------------------- ---------------------------------
Name: Xxxxx Xxxxx
Title: Date:
Date:
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