EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of September 11, 1998 between Individual
Investor Group, Inc., a Delaware corporation with offices at 0000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("Company"), and Xxxxxx Xxxxxx, residing at 000 Xxxx Xxx
Xxxxxx, Xxxxxxxxx 00X, Xxx Xxxx, Xxx Xxxx 00000 ("Executive").
W I T N E S S E T H:
WHEREAS, Company desires to employ the Executive and Executive desires to
be employed by Company upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
1. Employment and Duties. (a) Company hereby agrees to employ Executive and
Executive hereby agrees to be employed by the Company and to serve as the
President and Chief Operating Officer of the Company. The Executive's shall
supervise the day-to-day operation of the Company's business and shall have such
other executive duties and responsibilities consistent with that position and
assigned to Executive by the Chairman and Chief Executive Officer of the Company
from time to time. Executive shall be subordinate to the Chief Executive Officer
of the Company and shall report to the Chief Executive Officer. Executive shall
use Executive's best efforts to promote the interests of the Company and devote
Executive's full business time, attention and skill to the business and affairs
of the Company.
(b) The Chief Executive Officer of the Company will assess Executive's
performance and contribution to achieving the business goals of the Company
as established from time to time by the Board of Directors and, as a result
of such assessment, after completion of one year of employment hereunder,
will consider and recommend to the Board of Directors whether Executive
should be nominated to become a member thereof.
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2. Term of Employment. The term of Executive's employment hereunder
("Term") shall commence on September 14, 1998 (the "Effective Date") and shall
continue until December 31, 1999 unless terminated earlier as hereinafter
provided in this Agreement, or unless extended by mutual agreement of the
Company and Executive. Pending any negotiations for renewal of this Agreement
beyond the Term, if Executive continues to be employed by the Company, her
compensation hereunder shall be continued while she remains employed.
3. Compensation.
(a) Salary. In consideration for all the services to be performed
under this Agreement, the Company shall pay Executive a base salary, in
equal installments no less frequently than semi-monthly, at the rate of
$225,000 per year during the Term.
(b) Bonuses. The Company will pay Executive a bonus equal to
Executive's base salary in respect of the first fiscal year during the Term
of this Agreement for which the Company reports a pre-tax income of $1.00
or greater, after deduction for the bonuses payable to employees (other
than the Chairman and Chief Executive Officer) with respect to such fiscal
year, including the bonus to Executive provided herein. The bonus will be
determined by reference to the audited, consolidated financial statements
of the Company, prepared in accordance with generally accepted accounting
principles, consistently applied. The bonus will be paid not later than the
filing date of the Form 10-K for the fiscal year in which the bonus is
earned. The bonus will be deemed earned and payable as of the last day of
the fiscal year provided Executive is employed by the Company as of such
date, even if Executive is not employed by the Company after that date. The
Executive and the Company shall mutually determine the amounts of bonuses
to be paid to Executive in subsequent fiscal years and the performance
targets upon which such bonuses will be paid.
(c) Expenses. The Company shall reimburse Executive for all reasonable
and necessary expenses incurred in the execution of Executive's duties
hereunder upon Executive's submission to the Company of invoices, receipts
and other documentation evidencing such expenses in accordance with the
Company's policies and procedures.
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(d) Vacation. Executive shall be entitled to four weeks of paid
vacation per annum during the Term. Such vacation may be taken by Executive
at such times as generally do not interfere with the business of the
Company and as approved by the Company's Chief Executive Officer. Annual
vacation time shall not cumulate from year to year.
(e) Other Executive Benefits. Executive shall be entitled to
participate, on the same basis and subject to the same qualifications as
other employees of the Company, in any medical or disability insurance,
sick leave, holiday, pension-401(K) and other related benefit plans and
policies in effect with respect to senior management personnel of Company.
(f) Stock Options. On the Effective Date the Company will enter into a
stock option agreement in the form of the agreement attached hereto as
Exhibit A pursuant to which Executive will have the right to purchase up to
250,000 shares of Common Stock exercisable at a price equal to the last
sale price of a share of Common Stock on the trading day immediately
preceding the Effective Date.
4. Travel. Executive shall undertake all reasonable travel required by
Company in connection with the performance of Executive's duties hereunder.
5. Non-Competition; Protection of Confidential Information; Intellectual
Property; and Corporate Opportunities .
(a) Executive agrees that Executive's services hereunder are of a
special, unique and extraordinary character, and that Executive's position
with the Company places her in a position of confidence and trust.
Executive further acknowledges that in the course of rendering services to
the Company, Executive will obtain knowledge of confidential information
and trade secrets of the Company. Accordingly, Executive agrees that during
the Term and for a one (1) year period thereafter, Executive shall not
directly or indirectly:
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(i) in any geographic area where the Company conducts business,
engage or participate in, directly or indirectly (whether as an
officer, director, employee, partner, consultant, holder of an equity
or debt investment, lender, or in any other manner or capacity), any
publishing business which is, or as a result of Executive's engagement
or participation would become, competitive with the financial
publishing business in which the Company is engaged at that time,
(ii) deal, directly or indirectly, in any manner with any
customers doing business with the Company (except in connection with
the performance of the duties and obligations of Executive during the
Term of Employment) in soliciting business for an entity which
publishes any publication substantially similar to the publications
published by the Company,
(iii) solicit, directly or indirectly, any officer, director,
employee, or agent of the Company to become an officer, director,
employee, or agent of Employee or anyone else,
(iv) engage or participate in, directly or indirectly, any
business conducted under any name that shall be the same as or similar
to the name of the Company or any trade name used by it, o
(v) disparage the reputation of the Company or its publications.
Ownership, in the aggregate, of less than 1% of the outstanding shares of
capital stock of any corporation with revenues in excess of $100,000,000 and one
or more classes of its capital stock listed on a national securities exchange or
publicly-traded in the over-the-counter market shall not constitute a violation
of the foregoing provision. In addition, the Company agrees that Executive's
role as a shareholder, officer and/or director of Swaps Monitor Publications,
Inc. (a publisher of financial information whose focus is other than providing
investment information tailored to the individual investor) is not and shall not
be considered to be in violation of any provision of this Section 5(a).
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(b) Executive also agrees that either during the Term or at any other
time thereafter, Executive shall not divulge, furnish, or make accessible
to anyone (other than in the regular course of business of the Company) any
knowledge or information with respect to confidential or secret processes,
inventions, discoveries, improvements, formulae, plans, material, devices,
ideas, or other know-how, whether intellectual property or not, with
respect to any confidential or secret engineering, development, or research
work or with respect to any other confidential or secret aspects of the
Company's business (including, without limitation, customer lists,
subscription lists, supplier lists, and pricing arrangements with
customers, subscribers, advertisers or suppliers). Executive further agrees
that during the Term or at any other time thereafter, Executive shall not
make use of, nor permit to be used, any confidential notes, memoranda,
specifications, programs, data, information or other materials of any
nature whether oral or written relating to any matter within the scope of
the business of the Company or concerning any of its dealings or affairs
otherwise than for the benefit of the Company, it being agreed that any of
the foregoing shall be and remain the sole and exclusive property of the
Company and that immediately upon the termination of Executive's
employment, Executive shall deliver any or all copies of the foregoing to
the Company.
(c) During the Term, Executive shall disclose to the Company all
ideas, marketing concepts, slogans, advertising campaigns, characters,
proposals and plans invented or developed by Executive which relate
directly or indirectly to the business of the Company or arise out of
Executive's employment with the Company or the use of the Company's
property or resources including, without limitation, any ideas, proposals
and plans which may be copyrighted, trademarked, patented or otherwise
protected (collectively, "Intellectual Property"). Executive agrees that
all such Intellectual Property are and will be the property of the Company.
Executive expressly understands and agrees that any and all Intellectual
Property constitute a "work for hire" under the U.S. Copyright Law. In the
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event any Intellectual Property is not regarded as a "work for hire,"
Executive hereby assigns to the Company the sole and exclusive right to
Intellectual Property. Executive agrees that Executive will promptly
disclose to the Company any and all Intellectual Property, and that, upon
request of the Company, Executive will execute and deliver any and all
documents or instruments and take any other action which the Company shall
deem necessary to assign to and vest completely in the Company, to perfect
trademark, copyright and patent protection with respect to, or to otherwise
protect the Company's trade secrets and proprietary interest in the
Intellectual Property. Upon disclosure of any Intellectual Property to the
Company, during the Term and at any time thereafter, Executive will, at the
request and expense of the Company, sign, execute, make and do all such
deeds, documents, acts and things as the Company and its duly authorized
agents may reasonably require: (i) to apply for, obtain and vest in the
name of the Company alone (unless the Company otherwise directs)
trademarks, copyrights or other analogous protection in any country
throughout the world and when so obtained or vested to renew and restore
the same; and (ii) to defend any opposition proceedings in respect of such
applications and any opposition proceedings or petitions or applications
for revocation of such trademarks, copyrights, patents or other analogous
protection. In the event the Company does not, within five (5) days,
execute and deliver such documents reasonably necessary to vest in the
Company all right, title and interest in such Intellectual Property,
Executive hereby irrevocably designates and appoints the Company and its
duly authorized officers and agents as Executive's agent and
attorney-in-fact, to act for and in Executive's behalf and stead to execute
and file any such application or applications and to do all other lawfully
permitted acts to further the prosecution and issuance of trademarks,
copyright or this analogous protection thereon with the same legal force
and effect as if executed by Employee. The obligations of this Section 5(c)
shall continue after the termination of Executive's employment with respect
to such Intellectual Property conceived of or developed by Executive while
employed by the Company. The Company agrees to pay any and all copyright,
trademark and patent fees and expenses or this costs incurred by Executive
for any assistance rendered to the Company pursuant to this paragraph.
(d) If Executive commits a breach, or threatens to commit a breach, of
any of the provisions of Sections 5(a), (b) or (c), the Company shall have
the right and remedy:
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(i) to have the provisions of this Agreement specifically
enforced by any court having equity jurisdiction, it being
acknowledged and agreed by Executive that the services being rendered
hereunder to the Company are of a special, unique, and extraordinary
character and 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; and
(ii) to require Executive to account for and pay over to the
Company all compensation, profits, monies, accruals, increments, or
this benefits (collectively "Benefits") derived or received by
Executive as the result of any transactions constituting a breach of
any of the provisions of Sections 5(a), (b) or (c) and Executive
hereby agrees to account for and pay over such Benefits to the
Company.
Each of the rights and remedies enumerated in this Section 5(d) shall be
independent of the other, and shall be severally enforceable, and such rights
and remedies shall be in addition to, and not in lieu of, any other rights and
remedies available to the Company under law or equity. If any provision of
Sections 5(a), (b) or (c) is held to be unenforceable because of the scope,
duration, or area of its applicability, the tribunal making such determination
shall have the power to modify such scope, duration, or area, or all of them,
and such provision or provisions shall then be applicable in such modified form.
6. Executive's Representations. Executive represents and warrants that:
(a) Executive has the right to enter into this Agreement and is
not subject to any contract, commitment, agreement, arrangement or
restriction of any kind which would prevent Executive from performing
Executive's duties and obligations hereunder; and
(b) Executive is currently in good health and to the best of
Executive's knowledge, Executive is not subject to any undisclosed
medical condition which might have a material effect on Executive's
ability to perform satisfactorily Executive's services hereunder.
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7. Death of Executive. In the event of Executive's death during the Term,
this Agreement shall terminate as of the date of death, and the Company shall no
longer be under any obligation to Executive or her legal representatives
pursuant to this Agreement except for (i) any base salary accrued and unpaid,
(ii) any earned but unpaid bonus and (iii) any expenses incurred but
unreimbursed under Section 3(c) hereof, to the date of death.
8. Disability. If, during the Term, Executive shall be unable to perform
the duties required of her pursuant to this Agreement due to any "disability"
(as hereinafter defined), the Company shall have the right to terminate
Executive's employment hereunder by giving not less than 14 days' prior written
notice to Employee, at the end of which 14-day period Executive's employment
hereunder shall be terminated and the Company shall no longer be under any
obligation to the Executive or her legal representatives pursuant to this
Agreement except for (i) any base salary accrued and unpaid, (ii) any earned but
unpaid bonus and (iii) any expenses incurred but unreimbursed under Section 3(c)
hereof, to the date of termination. As used in this Agreement, the term
"disability" shall mean the earlier to occur of either of the following events:
(i) the determination by a physician selected by the Company, duly licensed in
New York with a medical specialty appropriate for such determination (which
determination shall be binding and conclusive for the purpose of this Section
8), that the Executive is either physically or mentally, permanently disabled or
incapacitated or otherwise so disabled or incapacitated that she will be unable
to perform her obligations to, or duties for, the Company pursuant to this
Agreement for ninety (90) consecutive days or a period in excess of one hundred
fifty (150) days out of any period of three hundred sixty (360) consecutive
days, or (ii) the Employee, because of physical or mental disability or
incapacity, was unable to perform her obligations to, or duties for, the Company
pursuant to this Agreement on a full-time basis for ninety (90) consecutive days
or a period in excess of one hundred fifty (150) days out of any period of three
hundred sixty (360) consecutive days. The failure of the Executive to submit to
an examination of a physician under this Section 8 shall automatically result in
a determination of disability hereunder.
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9. Termination.
(a) In addition to Sections 7 and 8 herein, Executive's employment
hereunder may be terminated at any time by the Company upon the happening
of any one or more of the following occurrences (hereinafter referred to as
"termination for cause"):
(i) The willful or continued failure of Executive to perform her
obligations under this Agreement, or the material breach of any other
provision of this Agreement by Executive, after her receipt of written
notice from the Company of such failure and a reasonable opportunity
to cure (not to exceed 10 days) has been given to the Executive;
(ii) The indictment of Executive for any crime which constitutes
a felony in the jurisdiction involved or any conviction of, or plea of
guilty or nolo contendere to, any crime involving moral turpitude or
which tends to bring to the Company into disrepute;
(iii) Executive's commission of any act of fraud,
misappropriation, embezzlement or similar willful and malicious
conduct against the Company; or
(iv) Executive's commission of an act or failure to act that
involves willful misconduct, bad faith or gross negligence of
Employee.
(b) Upon the termination of the Executive's employment pursuant to
Section 9(a), the Company shall have no further obligations to the
Executive hereunder.
(c) If the Company shall terminate Executive's employment other than
pursuant to Sections 7, 8 or 9 (a), the Company shall pay Executive, within
thirty (30) days of termination, severance pay equal to the lesser of six
month's base salary or the salary remaining to be paid through the end of
the Term (as if there had been no termination), and the Company shall have
no further obligations to Executive hereunder except for (i) any salary
accrued and unpaid, (ii) any earned but unpaid bonus and (iii) any expenses
incurred but unreimbursed under Section 3(c) thereof, to the date of
termination.
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10. Policy on Xxxxxxx Xxxxxxx. Executive agrees to abide by the compliance
policies of the Company relating to buying and selling securities of the Company
and of companies which are the subject of articles in the Company's publications
or of the Company's investment-related products, as such policy exists from time
to time. Executive shall sign all such acknowledgments of the compliance
policies as may be requested from time to time and cooperate fully with the
Company and its agents in the implementation of the compliance policies.
11. Assignment. This Agreement is a personal contract and Executive may not
sell, transfer or assign her rights, interests and obligations hereunder. Any
assignment by the Executive contrary to this paragraph shall be null and void of
no force and effect. The rights and obligations of Company hereunder shall be
binding upon and run in favor of the successors and assigns of Company.
12. Entire Understanding; Governing Law. This Agreement and the Option
Agreement referred to in Section 3(f) represents the entire agreement and
understanding between the parties with respect to the subject matter thereof and
supersedes all prior agreements and understandings. This Agreement shall be
governed by, and construed in accordance with, the internal laws of New York
without regard to principles of conflicts of law.
13. Modification; Waiver. This Agreement may not be amended, modified or
amended, nor may any term or provision be waived unless such modification,
amendment or waiver is in writing and signed by the party against whom
enforcement of any such modification, amendment or waiver is sought.
14. Headings. Section headings contained in this Agreement are for
convenience of reference only and shall not be considered a part of this
Agreement.
15. Severability. If any provision or if any part of any provision of this
Agreement is found to be unenforceable, illegal or contrary to public policy by
a court of competent jurisdiction, the parties agree that this Agreement shall
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remain in full force and effect except for such provision or part of any such
provision held to be unenforceable.
16. Notices. Any notices or other communications required or permitted
hereunder shall be in writing and shall be deemed given upon delivery if
delivered in person or by overnight courier (e.g. Federal Express), or on the
third business day following deposit in the United States mail, if sent by
registered or certified mail, return receipt requested, addressed to the address
of the party to receive notice set forth herein, or to such this address as a
party shall designate by notice in writing given to the this party in accordance
with the terms hereof, except that notices regarding changes in address shall be
effective only upon receipt.
IN WITNESS WHEREOF, Company and Executive has signed this Agreement as of
the day and year first above written.
INDIVIDUAL INVESTOR GROUP, INC.
By:/s/Xxxxxxxx Xxxxxxxxx
Xxxxxxxx X. Xxxxxxxxx
Chairman and Chief Executive Officer
/s/Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
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