Exhibit 10.4
------------
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is entered into by Switchboard
Incorporated, a Delaware corporation (the "Company"), and Xxxx Xxxxxxxx(the
"Executive"; and together with the Company, the "Parties") as of this 19th day
of March, 2004.
The Company desires to continue to employ the Executive, and the Executive
desires to continue to be employed by the Company. In consideration of the
mutual covenants and promises contained in this Agreement, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the Parties, the Parties agree as follows:
1. Term of Employment. The Company hereby agrees to employ the Executive,
------------------
and the Executive hereby accepts employment with the Company, upon the terms set
forth in this Agreement, for the period commencing on the date of this Agreement
and until terminated in accordance with the provisions of Section 5 of this
Agreement (such period, the "Employment Period").
2. Title; Capacity. The Executive shall serve as President and Chief
---------------
Executive Officer or in such other position as the Company's Board of Directors
(the "Board") may determine from time to time. The Executive shall be based at
the Company's headquarters in Westborough, Massachusetts or such place or places
in the continental United States as the Board shall determine. The Executive
shall be subject to the supervision of, and shall have such authority as is
delegated to the Executive by, the Board.
The Executive hereby accepts such employment and agrees to undertake the
duties and responsibilities inherent in such position and such other duties and
responsibilities as the Board shall from time to time reasonably assign to the
Executive. The Executive agrees to devote his entire business time, attention
and energies to the business and interests of the Company during the Employment
Period. The Executive agrees to abide by the rules, regulations, instructions,
personnel practices and policies of the Company and any changes therein which
may be adopted from time to time by the Company.
3. Compensation and Benefits.
-------------------------
3.1 Salary; Bonus. During the Employment Period, the Company shall pay
-------------
the Executive, in periodic installments in accordance with the Company's
customary payroll practices, a base salary of $9,615.38 bi-weekly (equivalent to
an annual salary of $250,000. Such salary shall be subject to adjustment
thereafter as determined by the Board (such salary, as adjusted, the "Base
Salary"). During the Employment Period, the Executive shall be eligible to
receive an annual bonus, in the discretion of the Board (such bonus, the
"Bonus"), in the event the Executive meets the criteria for payment of the
Bonus, if any, established by the Board, in its discretion. The amount of any
such Bonus shall be determined by the Board, in its discretion.
3.2 Benefits. The Executive shall be entitled to participate in all
--------
benefit programs (other than bonus programs which are addressed in Section 3.1
of this Agreement) that the Company establishes and makes available to its
employees, if any, to the extent that the Executive's position, tenure, salary,
age, health and other qualifications make him eligible to participate. During
the Employment Period, provided that the Executive qualifies for such insurance,
the Executive shall also be eligible to receive term life insurance coverage in
an amount equal to five times the Executive's annual base salary (or $250,000 as
of the date of this Agreement), with the Company to pay all applicable premiums.
Any increases in the amount of life insurance, based upon upward adjustments in
the Executive's base salary, are subject to the Company's ability to obtain
additional coverage at reasonable rates.
3.3 Reimbursement of Expenses. The Company shall reimburse the
-------------------------
Executive for all reasonable and documented travel, entertainment and other
expenses incurred or paid by the Executive in connection with, or related to,
the performance of his duties, responsibilities or services under this
Agreement, in accordance with policies and procedures, and subject to
limitations, adopted by the Company from time to time.
3.4 Withholding. All salary, bonus and other compensation payable to
-----------
the Executive shall be subject to applicable withholding taxes.
4. Change in Control.
-----------------
4.1 Stock Options.
-------------
(a) Upon a Change in Control (as defined in Section 4.2(a) of this
Agreement), 50% of the unvested portion (determined before giving effect to any
vesting acceleration related to such Change in Control provided for under the
terms of the specific agreements or awards underlying such stock options or
restricted stock or the terms of any stock plans associated with such stock
options or restricted stock) of any outstanding stock options and restricted
stock granted by the Company to the Executive, other than those options set
forth on Schedule 4.1 to this Agreement (the "Excluded Options"), shall vest and
------------
become exercisable in full effective immediately prior to the Change in Control.
The remaining 50% of the unvested portion of any outstanding stock options and
restricted stock granted by the Company to the Executive, other than the
Excluded Options, shall (i) continue to vest in accordance with the original
vesting schedule set forth in the specific agreements or awards underlying such
options or restricted stock, with 50% of the number of shares that would
otherwise have become vested on each subsequent vesting date in accordance with
the original schedule becoming vested on each subsequent vesting date, and (ii)
immediately vest and become exercisable in full if on or prior to the first
anniversary of the date of the Change in Control the Executive's employment with
the Company is terminated by the Executive pursuant to Section 5.2 of this
Agreement or by the Company pursuant to Section 5.4 of this Agreement.
(b) In the event that, pursuant to a Change in Control, any
outstanding stock options granted by the Company to the Executive are not
assumed, or substituted for, by the acquiring, succeeding or surviving person,
group or entity, as the case may be, or do not otherwise remain outstanding and
effective substantially in accordance with their terms as in effect prior to
such Change in Control (subject to appropriate adjustments and any accelerated
vesting pursuant to the terms of such stock options, their associated stock
plans or this Agreement), and if the Executive's employment with the Company is
terminated on or prior to the first anniversary of the date of the Change in
2
Control by the Executive pursuant to Section 5.2 of this Agreement or by the
Company pursuant to Section 5.4 of this Agreement, the Company shall pay to the
Executive a cash amount equal to the Unassumed Option Value (as defined in this
Section 4.1(b)) in one lump sum within fourteen (14) days following such
termination. The payment to the Executive of any Unassumed Option Value shall be
contingent upon the Executive's compliance with clauses (I) and (II) of the last
sentence of Section 6.2 of this Agreement. As used in this Agreement, "Unassumed
Option Value" means the amount by which (i) the product of (I) the highest per
share consideration received by the holders of the Company's common stock, $.01
par value per share (the "Common Stock"), for each share of Common Stock
surrendered pursuant to such Change in Control (the "Change in Control Amount")
multiplied by (II) the number of shares of Common Stock subject to all stock
options held by the Executive as of immediately prior to such Change in Control,
for which the Change in Control Amount exceeds the per share exercise price,
that remained unvested after taking into account any accelerated vesting
pursuant to the terms of such stock options, their associated stock plans and
this Agreement (the "Unvested Shares") exceeds (ii) the aggregate exercise price
under such stock options for such Unvested Shares. The fair market value of
consideration received by the holders of the Common Stock in calculating the
Change in Control Amount shall be determined based on the fair market value of
such consideration as of the date of the Change in Control.
4.2 Certain Definitions. As used in this Agreement, the following
-------------------
terms shall have the following respective meanings:
(a) "Change in Control" means an event or occurrence set forth in any
one or more of subsections (i) through (iv) below:
(i) any person, entity or group (other than the Company, ePresence,
Inc., any trustee or other fiduciary holding securities under an employee
benefit plan of the Company, or any corporation owned directly or indirectly by
the stockholders of the Company in substantially the same proportion as their
ownership of stock of the Company) is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Securities and Exchange of 1934, as amended),
directly or indirectly, of securities of the Company representing more than 50%
of the combined voting power of the Company's then outstanding voting
securities;
(ii) a merger or consolidation of the Company occurs following
which the beneficial holders of the voting securities of the Company outstanding
immediately prior thereto do not beneficially hold securities representing more
than 50% of the combined voting power of the voting securities of the surviving
entity that are outstanding immediately after such merger or consolidation;
(iii) there is a sale of all or substantially all of the assets of
the Company; or
(iv) the stockholders of the Company approve a complete liquidation
or dissolution of the Company.
(b) "Good Reason" shall mean (i) a material adverse change in the
Executive's authority, duties or compensation without the prior consent of the
3
Executive, (ii) a material breach by the Company of the terms of this Agreement,
which breach is not remedied by the Company within 30 business days following
written notice from the Executive to the Company notifying it of such breach or
(iii) the relocation of the Executive's place of work more than 35 miles from
Westborough, Massachusetts.
(c) "Cause" shall mean the willful and repeated failure of the
Executive to perform substantially his duties, or action by the Executive
involving willful misfeasance, gross negligence or the commission of any
felonious action.
4.3 Taxes.
-----
(a) Notwithstanding any other provision of this Agreement, except as
set forth in Section 4.3(b) of this Agreement, in the event that the Company
undergoes a "Change in Ownership or Control" (as defined in Section 4.3(c)(i) of
this Agreement), the Company shall not be obligated to provide to the Executive
a portion of any "Contingent Compensation Payments" (as defined in Section
4.3(c)(ii) of this Agreement) that the Executive would otherwise be entitled to
receive to the extent necessary to eliminate any "excess parachute payments" (as
defined in Section 280G(b)(1) of the Internal Revenue Code of 1986, as amended
(the "Code")) for the Executive. For purposes of this Section 4.3, the
Contingent Compensation Payments so eliminated shall be referred to as the
"Eliminated Payments" and the aggregate amount (determined in accordance with
Proposed Treasury Regulation Section 1.280G-1, Q/A-30 or any successor
provision) of the Contingent Compensation Payments so eliminated shall be
referred to as the "Eliminated Amount."
(b) Notwithstanding the provisions of Section 4.3(a) of this
Agreement, no such reduction in Contingent Compensation Payments shall be made
if (i) the Eliminated Amount (computed without regard to this sentence) exceeds
(ii) 110% of the aggregate present value (determined in accordance with Proposed
Treasury Regulation Section 1.280G-1, Q/A-31 and Q/A-32 or any successor
provisions) of the amount of any additional taxes that would be incurred by the
Executive if the Eliminated Payments (determined without regard to this
sentence) were paid to him (including state and federal income taxes on the
Eliminated Payments, the excise tax imposed by Section 4999 of the Code payable
with respect to all of the Contingent Compensation Payments in excess of the
Executive's "base amount" (as defined in Section 280G(b)(3) of the Code) and any
withholding taxes). The override of such reduction in Contingent Compensation
Payments pursuant to this Section 4.3(b) shall be referred to as a "Section
4.3(b) Override." For purposes of this Section 4.3(b), if any federal or state
income taxes would be attributable to the receipt of any Eliminated Payment, the
amount of such taxes shall be computed by multiplying the amount of the
Eliminated Payment by the maximum combined federal and state income tax rate
provided by law.
(c) Certain Definitions. As used in this Section 4.3, the following
-------------------
terms shall have the following respective meanings:
(i) "Change in Ownership or Control" shall mean a change in the
ownership or effective control of the Company or in the ownership of a
substantial portion of the assets of the Company determined in accordance with
Section 280G(b)(2) of the Code.
4
(ii) "Contingent Compensation Payment" shall mean any payment (or
benefit) in the nature of compensation that is made or made available (under
this Agreement or otherwise) to a "disqualified individual" (as defined in
Section 280G(c) of the Code) and that is contingent (within the meaning of
Section 280G(b)(2)(A)(i) of the Code) on a Change in Ownership or Control of the
Company.
(d) Any payments or other benefits otherwise due to the Executive
following a Change in Ownership or Control that could reasonably be
characterized (as determined by the Company) as Contingent Compensation Payments
(the "Potential Payments") shall not be made until the dates provided for in
this Section 4.3(d). Within thirty (30) days after each date on which the
Executive first becomes entitled to receive (whether or not then due) a
Contingent Compensation Payment relating to such Change in Ownership or Control,
the Company shall determine and notify the Executive (with reasonable detail
regarding the basis for its determinations) (i) which Potential Payments
constitute Contingent Compensation Payments, (ii) the Eliminated Amount and
(iii) whether the Section 4.3(b) Override is applicable. Within thirty (30) days
after delivery of such notice to the Executive, the Executive shall deliver a
response to the Company (the "Executive Response") stating either (A) that he
agrees with the Company's determination pursuant to the preceding sentence, in
which case he shall indicate, if applicable, which Contingent Compensation
Payments, or portions thereof (the aggregate amount of which, determined in
accordance with Proposed Treasury Regulation Section 1.280G-1, Q/A-30 or any
successor provision, shall be equal to the Eliminated Amount), shall be treated
as Eliminated Payments or (B) that he disagrees with such determination, in
which case he shall set forth (I) which Potential Payments should be
characterized as Contingent Compensation Payments, (II) the Eliminated Amount,
(III) whether the Section 4.3(b) Override is applicable, and (IV) which (if any)
Contingent Compensation Payments, or portions thereof (the aggregate amount of
which, determined in accordance with Proposed Treasury Regulation Section
1.280G-1, Q/A-30 or any successor provision, shall be equal to the Eliminated
Amount, if any), shall be treated as Eliminated Payments. In the event that the
Executive fails to deliver an Executive Response on or before the required date,
the Company's initial determination shall be final and the Contingent
Compensation Payments that shall be treated as Eliminated Payments shall be
determined by the Company in its absolute discretion. If the Executive states in
the Executive Response that he agrees with the Company's determination, the
Company shall make the Potential Payments to the Executive within ten (10)
business days following delivery to the Company of the Executive Response
(except for any Potential Payments which are not due to be made until after such
date, which Potential Payments shall be made on the date on which they are due).
If the Executive states in the Executive Response that he disagrees with the
Company's determination, then, for a period of thirty (30) days following
delivery of the Executive Response, the Executive and the Company shall use good
faith efforts to resolve such dispute. If such dispute is not resolved within
such 30-day period, such dispute shall be settled exclusively by arbitration in
accordance with the provisions of Section 10.10 of this Agreement. The Company
shall, within three (3) business days following delivery to the Company of the
Executive Response, make to the Executive those Potential Payments as to which
there is no dispute between the Company and the Executive regarding whether they
should be made (except for any such Potential Payments which are not due to be
made until after such date, which Potential Payments shall be made on the date
on which they are due). The balance of the Potential Payments shall be made
within three (3) business days following the resolution of such dispute.
5
(e) Upon the written request of the Executive (which request must
specify the Executive's actual tax circumstances) delivered to the Company
within ninety (90) days following the timely filing of all relevant tax returns
for the Executive for the year or other taxable period in which the Eliminated
Payments would have been made, the Eliminated Payments shall be recomputed based
upon the Executive's actual tax circumstances and the reference to "110%" in
clause (ii) of Section 4.3(b) of this Agreement shall be deemed to be "100%."
If, as a result of such recomputation, there are no Eliminated Payments, the
Executive shall become entitled to receive Contingent Compensation Payments
previously treated as Eliminated Payments within ten (10) days of the delivery
of the aforementioned request.
(f) The provisions of this Section 4.3 are intended to apply to any
and all payments or benefits available to the Executive under this Agreement or
any other agreement or plan of the Company under which the Executive receives
Contingent Compensation Payments.
5. Termination of Employment Period. The employment of the Executive by the
--------------------------------
Company pursuant to this Agreement shall terminate upon the occurrence of any of
the following:
5.1 At the election of the Company, for Cause, immediately upon
written notice by the Company to the Executive (which notice shall identify the
Cause upon which the termination is based); provided, however, that the Company
-------- -------
has complied with the provisions of Section 4.2(c) of this Agreement.
5.2 At the election of the Executive, for Good Reason, immediately
upon written notice by the Executive to the Company (which notice shall identify
the Good Reason upon which the termination is based); provided, however, that
-------- -------
the Executive has complied with the provisions of Section 4.2(b) of this
Agreement.
5.3 Upon the death or disability of the Executive. As used in this
Agreement, the term "disability" shall mean the inability of the Executive, due
to a physical or mental disability, for a period of 180 days, whether or not
consecutive, during any 360-day period to perform the services contemplated
under this Agreement, with or without reasonable accommodation as that term is
defined under state or federal law. A determination of disability shall be made
by a physician satisfactory to both the Executive and the Company; provided,
--------
however, that if the Executive and the Company do not agree on a physician, the
-------
Executive and the Company shall each select a physician and these two together
shall select a third physician, whose determination as to disability shall be
binding on all Parties.
5.4 At the election of either Party, immediately upon written notice
of termination to the other Party.
6. Effect of Termination.
---------------------
6.1 In the event the Executive's employment is terminated pursuant to
Sections 5.1 or 5.3 of this Agreement or by the Executive pursuant to Section
5.4 of this Agreement, the Company shall pay to the Executive the compensation
and benefits otherwise payable to him under Section 3 of this Agreement through
6
the last day of his actual employment by the Company, specifically excluding any
unpaid portion of his annual bonus, if any, for the then current fiscal year.
6.2 In the event the Executive's employment is terminated by the
Executive pursuant to Section 5.2 of this Agreement or by the Company pursuant
to Section 5.4 of this Agreement, the Company shall (i) continue to pay to the
Executive during the period ending on a date twelve months after the date of
such termination (the "Payment Period"), in periodic installments in accordance
with the Company's customary payroll practices, (x) 100% of his annualized base
salary as in effect on the date of termination, (y) 100% of his targeted Bonus
established by the Board, if any, for the then current fiscal year (or, if such
targeted Bonus has not yet been determined (and the Board has not affirmatively
determined that the Executive would not be entitled to a targeted Bonus for the
current fiscal year), 100% of his targeted bonus for the prior fiscal year) and
(z) a pro rata portion, based upon the period the Executive was employed by the
Company during the then current fiscal year, of his targeted Bonus established
by the Board, if any, for the then current fiscal year, less any amount of such
targeted Bonus already paid to the Executive, (or, if such targeted Bonus has
not yet been determined (and the Board has not affirmatively determined that the
Executive would not be entitled to a targeted Bonus for the current fiscal
year), a pro rata portion, based upon the period the Executive was employed by
the Company during the then current fiscal year, of his targeted Bonus for the
prior fiscal year), and (ii) continue to provide to the Executive during the
Payment Period the other benefits described under Section 3.2 of this Agreement
(to the extent such benefits can be provided to non-employees, or to the extent
such benefits cannot be provided to non-employees, then a cash amount equal to
the Company's cost of such benefits on a group basis). For the avoidance of
doubt, the Executive's target Bonus for the fiscal year ended December 31, 2004
is $125,000. Without limiting the time period for which the Company may be
required to provide benefits under the foregoing clause (ii) of this Section 6.2
and notwithstanding the provisions of clause (i) of this Section 6.2 regarding
the timing of payments, if the Company is required to make payments to the
Executive under this Section 6.2 as a result of a termination of the Executive's
employment within twelve (12) months after a Change in Control, all such
payments shall be paid to the Executive in one lump sum within fourteen (14)
days following such termination. The payment to the Executive of the amounts
payable under this Section 6.2 (I) shall be contingent upon the execution by the
Executive of a severance agreement and general release in a form reasonably
acceptable to the Company and (II) shall, subject to Section 4.1(b) of this
Agreement, constitute the sole remedy of the Executive in the event of a
termination of the Executive's employment in the circumstances set forth in this
Section 6.2.
7. Non-Competition and Non-Solicitation.
------------------------------------
7.1 Non-Competition. While the Executive is employed by the Company
---------------
and during the Payment Period (regardless of the reason for termination of the
Executive's employment and regardless of the timing of payments, if any,
required under Section 6 hereof), the Executive will not directly or indirectly
engage in any business or enterprise (whether as owner, partner, officer,
director, employee, consultant, investor, lender or otherwise, except as the
holder of not more than 1% of the outstanding stock of a publicly held company)
that is competitive with the Company's business, including, without limitation,
any business or enterprise that develops, manufactures, markets, licenses, sells
or provides any product or service that competes with any product or service
developed, manufactured, marketed, licensed, sold or provided, or planned to be
7
developed, manufactured, marketed, licensed, sold or provided, by the Company or
any of its subsidiaries while the Executive was employed by the Company.
7.2 Non-Solicitation. While the Executive is employed and during the
----------------
Payment Period (regardless of the reason for termination of the Executive's
employment and regardless of the timing of payments, if any, required under
Section 6 hereof), the Executive will not directly or indirectly, either alone
or in association with others (i) solicit, or permit any organization directly
or indirectly controlled by the Executive to solicit, any employee of the
Company to leave the employ of the Company, or (ii) solicit for employment, hire
or engage as an independent contractor, or permit any organization directly or
indirectly controlled by the Executive to solicit for employment, hire or engage
as an independent contractor, any person who was employed by the Company at any
time during the term of the Executive's employment with the Company; provided,
--------
however, that this clause (ii) shall not apply to the solicitation, hiring or
-------
engagement of any individual whose employment with the Company has been
terminated for a period of six months or longer.
7.3 Extension. If the Executive violates the provisions of Sections
---------
7.1 or 7.2 of this Agreement, the Executive shall continue to be bound by the
restrictions set forth in such Sections until a period equal in duration to the
Payment Period has expired without any violation of such provisions.
7.4 Interpretation. If any restriction set forth in Sections 7.1 or
--------------
7.2 of this Agreement is found by any court of competent jurisdiction to be
unenforceable because it extends for too long a period of time or over too great
a range of activities or in too broad a geographic area, it shall be interpreted
to extend only over the maximum period of time, range of activities or
geographic area as to which it may be enforceable.
7.5 Equitable Remedies. The restrictions contained in this Section 7
------------------
are necessary for the protection of the business and goodwill of the Company and
are considered by the Executive to be reasonable for such purpose. The Executive
agrees that any breach of this Section 7 is likely to cause the Company
substantial and irrevocable damage which is difficult to measure. Therefore, in
the event of any such breach or threatened breach, the Executive agrees that the
Company, in addition to such other remedies which may be available, shall have
the right to obtain an injunction from a court restraining such a breach or
threatened breach and the right to specific performance of the provisions of
this Section 7 without posting a bond and the Executive hereby waives the
adequacy of a remedy at law as a defense to such relief.
7.6 Consent and Jurisdiction. The Executive hereby irrevocably submits
------------------------
to the courts of the Commonwealth of Massachusetts or, if appropriate, a federal
court located in Massachusetts, which courts, for purposes of this Section 7 are
the only courts of competent jurisdiction, over any action by the Company
resulting from, asserting or otherwise based upon or derived from a breach by
the Executive of his obligations under this Section 7.
8. Continuing Obligations. In order to induce the Company to enter into
----------------------
this Agreement, the Executive hereby ratifies and confirms his [Invention and
Non-Disclosure Agreement] with the Company. Without limiting the generality of
the foregoing, the Executive agrees that all documents, records, techniques,
business secrets and other information which have come into his possession from
8
time to time during his employment by the Company shall be deemed to be
confidential and proprietary to the Company and he shall retain in confidence
any confidential information known to him concerning the Company and its parent
and/or subsidiaries and their respective businesses and such information shall
not be disclosed.
9. Other Agreements. The Executive represents that his performance of all
----------------
the terms of this Agreement and the performance of his or her duties as an
Executive of the Company do not and will not breach any agreement with any prior
employer or other party to which the Executive is a party (including, without
limitation, any nondisclosure or non-competition agreement). Any agreement to
which the Executive is a party (other than any such agreement with the Company)
relating to nondisclosure, non-competition or non-solicitation of employees or
customers is listed on Schedule 9 attached to this Agreement.
10. Miscellaneous.
-------------
10.1 Notices. Any notice delivered under this Agreement shall be
-------
deemed duly delivered two business days after it is sent by registered or
certified mail, return receipt requested, postage prepaid, or one business day
after it is sent for next-business day delivery via a reputable nationwide
overnight courier service, in each case to the address of the recipient set
forth below:
If to the Company: If to the Executive:
Switchboard Incorporated At the address set forth in the
000 Xxxxxxxx Xxxx Company's payroll records.
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Chairman of the Board
Chief Executive Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Either Party may give any notice under this Agreement using any other means
(including, without limitation, personal delivery, expedited courier, messenger
service, telecopy, telex, ordinary mail or electronic mail), but no such notice
shall be deemed to have been duly given unless and until it actually is received
by the individual for whom it is intended. Either Party may change the address
to which notices are to be delivered by giving notice of such change to the
other Party in the manner set forth in this Section 10.1.
10.2 Pronouns. Whenever the context may require, any pronouns used in
--------
this Agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular forms of nouns and pronouns shall include the plural,
and vice versa.
10.3 Entire Agreement. This Agreement constitutes the entire agreement
----------------
between the parties and supersedes all prior agreements and understandings,
whether written or oral, relating to the subject matter of this Agreement,
except for option agreements, as may be modified by this Agreement, and
invention and non-disclosure agreements between the parties existing on the date
hereof.
9
10.4 Amendment. This Agreement may be amended or modified only by a
---------
written instrument executed by both the Company and the Executive.
10.5 Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the Commonwealth of Massachusetts (without
reference to the conflicts of laws provisions thereof).
10.6 Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of both Parties and their respective successors and
assigns, including any entity with which, or into which, the Company may be
merged or which may succeed to the Company's assets or business; provided,
however, that the obligations of the Executive are personal and shall not be
assigned by him. The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Company expressly to assume
and agree to perform this Agreement to the same extent that the Company would be
required to perform it if no such succession had taken place. Failure of the
Company to obtain an assumption of this Agreement at or prior to the
effectiveness of any succession shall be a breach of this Agreement and shall
constitute Good Reason if the Executive elects to terminate employment (with the
Executive treated under Section 6 of this Agreement as if his employment had
been terminated within twelve (12) months after a Change in Control). As used in
this Agreement, "Company" shall mean the Company as defined above and any
successor to its business or assets as aforesaid which assumes and agrees to
perform this Agreement, by operation of law or otherwise.
10.7 Waivers. No delay or omission by the Company in exercising any
-------
right under this Agreement shall operate as a waiver of that or any other right.
A waiver or consent given by the Company on any one occasion shall be effective
only in that instance and shall not be construed as a bar or waiver of any right
on any other occasion.
10.8 Captions. The captions of the sections of this Agreement are for
--------
convenience of reference only and in no way define, limit or affect the scope or
substance of any section of this Agreement.
10.9 Severability. In case any provision of this Agreement shall be
------------
invalid, illegal or otherwise unenforceable, the validity, legality and
enforceability of the remaining provisions shall in no way be affected or
impaired thereby.
10.10 Arbitration. Any controversy or claim arising out of or relating
-----------
to this Agreement or any breach of this Agreement shall be settled by
arbitration to be conducted in Boston, Massachusetts, in accordance with the
Employment Dispute Arbitration Rules of the American Arbitration Association
then in effect before a single arbitrator who shall have experience in the area
of the matter in dispute. The arbitrator may grant relief in the nature of
injunctions or other relief in such dispute or controversy. The decisions of the
arbitrator shall be final, conclusive and binding on the Parties. Judgment may
be entered on the arbitrator's decision in any court having jurisdiction. The
Company and the Executive shall each pay one-half of the costs and expenses of
such arbitration, and each of them shall separately pay their own counsel fees
and expenses and other costs of the arbitration. Notwithstanding the foregoing,
the Company shall have the right to seek remedies, including, without
10
limitation, injunctive relief, specific performance and monetary damages, in
court as provided for in Section 7.6 of this Agreement in accordance with the
terms of such Section 7.6.
10.11 Executive's Acknowledgements. The Executive acknowledges that
----------------------------
he: (a) has read this Agreement; (b) has been represented in the preparation,
negotiation, and execution of this Agreement by legal counsel of the Executive's
own choice or has voluntarily declined to seek such counsel; (c) understands the
terms and consequences of this Agreement; and (d) understands that the law firm
of Xxxx and Xxxx LLP is acting as counsel to the Company in connection with the
transactions contemplated by this Agreement, and is not acting as counsel for
the Executive.
* * * * *
11
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day
and year set forth above.
SWITCHBOARD INCORPORATED
By:/s/Xxxxxx X. Xxxxxxx
--------------------
Name: Xxxxxx X. Xxxxxxx
Title: CFO
EXECUTIVE
/s/Xxxx Xxxxxxxx
Polnerow
--------
[Printed Name of Executive]
SCHEDULE 4.1
Excluded Options
Option dated 6/20/01
Option dated 3/3/04
4.1-1
SCHEDULE 9
Prior Agreements
None.
9-1
