EXHIBIT 10.36
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AMENDED AND RESTATED EMPLOYMENT AGREEMENT made as of this 1st day of
August 2001 (the "Effective Date"), between XXXXX ONLINE, INC. with its
principal office at 00 Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxx ("Company"), and
Xxxx Xxxxxxxxxx, an individual having an address at 00000 Xxxxxxxxx Xxxx; Xxxxx
000, Xxxxxxxxx, XX 00000 ("Employee").
W I T N E S S E T H:
WHEREAS, the Company operates an Internet financial information
business; and
WHEREAS, the Employee desires to be employed by the Company and
acknowledges that the execution of the Agreement is a condition of such
employment.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements hereinafter set forth, the parties agree as follows:
1. Employment. The Company shall employ the Employee and the Employee
shall serve the Company, upon the terms and conditions hereinafter set forth.
2. Term. The employment of Employee hereunder shall be for a period
beginning on the Effective Date and extending through July 31, 2003 (the
"Initial Term"). Upon the expiration of the Initial Term and on each anniversary
date thereafter, the employment of Employee shall be renewed and extended for an
additional year ("Current Term") unless either party terminates this agreement
on thirty (30) days written notice prior to the renewal date.
3. Duties. During the Employment Term, Employee shall hold the position
of Vice-President with such duties, functions and responsibilities on behalf of
the Company and/or its subsidiaries as are assigned to him by the Chief
Executive Officer or the President and Chief
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Operating Officer or the Executive Vice President and Chief Technology Officer,
provided, however, that Employee shall not cause the Company to engage in any
activity that is illegal, immoral or unethical or that is outside the ordinary
course of its business.
4. Compensation and Employee Benefits. Employee shall receive, as full
compensation for his services to the Company, payment based on an annual salary
of $140,000, paid by the Company in accordance with its standard payroll
practices. The payment due Employee hereunder shall be reviewed annually by the
Company. The annual salary and each of the cash payments listed below shall be
subject to applicable withholding taxes as reflected on the W-4 completed by the
Employee.
(a) Severance in Connection with a Change of Control. (i)
Notwithstanding anything contained herein to the contrary, in
the event that there is a change of control of the Company (as
defined below), and the Agreement is terminated by the Company
for whatever reason within the Current Term, the Company shall
pay to the Employee, in addition to accrued salary and
benefits payable to the Employee through the date of
termination of employment, a severance payment from the
Company equal to 1.5 times the Employee's then applicable base
salary and last annual bonus (bonus shall be calculated as the
average of the last two year's cash bonuses paid by the
Company to the Employee). In addition, all stock options and
other awards under the Company's 1999 stock option plan shall
immediately vest and remain exercisable for a period of the
lesser of the original term of the stock option and five
years.
(ii) For purposes of this Agreement, a "change of control of
the Company" shall mean the occurrence of (i) the acquisition
by an individual, entity, or group of the beneficial ownership
of 50% or more (other than by Marc and Xxxxx Xxxxxxxxxx and
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their affiliates) of (1) the outstanding common stock, or (2)
the combined voting power of the Company's voting securities;
provided, however, that the following acquisitions will not
constitute a "change of control": (x) any acquisition by any
employee benefit plan of the Company or any affiliate or (y)
any acquisition by any corporation if, immediately following
such acquisition, more than 50% of the outstanding common
stock and the outstanding voting securities of such
corporation is beneficially owned by all or substantially all
of those who, immediately prior to such acquisition, were the
beneficial owners of the common stock and the Company's voting
securities (in substantially similar proportions as their
ownership of such Company securities immediately prior
thereto); or (ii) the approval by the Company's stockholders
of a reorganization, merger or consolidation, other than one
with respect to which all or substantially all of those who
were the beneficial owners, immediately prior to such
reorganization, merger or consolidation, of the Common Stock
and the Company's voting securities beneficially own,
immediately after such transaction, more than 50% of the
outstanding common stock and voting securities of the
corporation resulting from such transaction (in substantially
the same proportions as their ownership, immediately prior
thereto, of the Common Stock and the Company's voting
securities); or (iii) the approval by the Company's
stockholders of the sale or other disposition of all or
substantially all of the assets of the Company, other than to
a subsidiary of the Company
(b) Bonus. The Employee will be entitled for consideration of an
annual bonus each year of up to 40% of Employee's annual base
salary based on a performance evaluation to be determined at
the discretion of the Company in December of each year.
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(c) Stock Options. Employee will be eligible to receive options
annually from the Company's Stock Options Plan during the term
of the Agreement.
(d) Vacation. Employee shall be entitled to paid vacation of three
weeks during each year.
(e) Insurance. Employee shall receive all standard company
insurance coverage, e.g. long-term disability, medical
insurance for the employee and his dependents. Employee shall
also be eligible to participate in any other standard benefit
plans the company makes available to its senior executive
officers.
5. Disability. In the event that Employee shall be incapacitated by
reason of mental or physical disability or otherwise during the term of his
employment hereunder, such that he is prevented from performing the services
required hereunder for period of twelve (12) consecutive or non-consecutive
weeks in any period of six (6) consecutive months, the Company shall have the
right, at its option to terminate this Agreement as of the last day of such
twelve (12) week period by sending written notice of such termination to
Employee in which event the Company shall have no further obligations hereunder,
other than the obligation to pay Employee any accrued and unpaid compensation to
which he is entitled to the date of such termination.
6. Termination for Cause. The Company shall have the right to terminate
Employee's employment under this Agreement and any and all payments to be made
hereunder if Employee at any time during the term of his employment, commits any
of the following "Acts".
(a) Employee shall be convicted of any crime (whether or not involving
the Company) which (i) constitutes a felony in the jurisdiction involved or (ii)
is of such a nature as to affect adversely the reputation of the Company; or
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(b) Employee shall commit an act of fraud, breach of loyalty or
malfeasance against the Company; or
(c) Employee shall cause the reputation and goodwill of the Company or
its affiliates to suffer substantial damage; or
(d) Employee shall violate any of the provisions of this Agreement; or
(e) Employee shall not perform his duties as directed by the Company.
The decision of the Board of Directors of the Company in such matter shall be
final.
In the event that the Company elects to terminate Employee's employment
under this Agreement for cause as set forth above, the Company shall send
written notice of such termination to Employee and thereupon no further payments
of any type shall be made or shall be payable to Employee hereunder except for
any accrued and unpaid compensation earned by him or to which he is entitled
prior to the date of such termination.
7. Termination without Cause. In the event that Employee's employment
with the Company is terminated without cause at any time during the Employment
Term, or if the Employee resigns from his employment at any time during the
Employment Term, then the Company shall have no further obligations or duties to
the Employee. Notwithstanding the foregoing, in the event of a termination by
the Company without cause, the Company shall pay Employee a severance payment
from the Company equal to 1.5 times the Employee's then applicable total annual
compensation including base salary and bonus (bonus shall be calculated as the
average of the last two year's cash bonuses paid by the Company to the
Employee). In addition, all stock options and other awards under the Company's
1999 and all other stock option plans shall immediately vest and remain
exercisable for a period of the lesser of the original term of the stock option
or five years.. For the purpose of this Section, a material reduction in role or
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movement by the Company of Employee's principal office more than 50 miles from
00000 Xxxxxxxxx Xxxx xx Xxxxxxxxx Xxxxxxxx 00000 within the Initial Term shall
be considered termination without cause. In the event of such termination
without cause or resignation, Employee shall have no further obligations or
duties to the Company, except as provided in Section 8.
8. Confidentiality; Noncompetition.
(a) The Company (which for purposes of this Section 8 includes
the Company and any of the Company's presently existing and hereinafter formed
subsidiaries) and the Employee acknowledge that the services to be performed by
the Employee under this Agreement are unique and extraordinary and, as a result
of such employment, the Employee will be in possession of confidential
information relating to the business practices of the Company. The term
"confidential information" shall mean any and all information (oral or written)
relating to the Company or any of its affiliates, or any of their respective
activities, other than such information which can be shown by the Employee to be
in the public domain (such information not being deemed to be in the public
domain merely because it is embraced by more general information which is in the
public domain) other than as the result of breach of the provisions of this
Section 8(a), including, but not limited to, information relating to: trade
secrets, proprietary information, personnel lists, financial information,
research projects, services used, pricing, customers, customer lists and
prospects, product sourcing, marketing and selling and servicing. The Employee
agrees that he will not, during his employment or subsequent to the termination
of employment, directly or indirectly, use, communicate, disclose or disseminate
to any person, firm or corporation any confidential information acquired by the
Employee during his employment by Company, without the prior written consent of
Company; provided, however, that the Employee
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understands that he will be prohibited from misappropriating any trade secret at
any time during or after the termination of employment. At no time during the
Employment Term, or thereafter shall the Employee directly or indirectly,
disparage the commercial, business or financial reputation of the Company.
(b) In consideration of Company's hiring Employee, the payment
by the Company to the Employee of the compensation described herein and for
other good and valuable consideration, the Employee hereby agrees that he shall
not, during the Employment Term and for a period of one (1) year following such
employment (the "Restrictive Period"), directly or indirectly, take any action
which constitutes an interference with or a disruption of any of the Company's
business activities.
(c) For purposes of clarification, but not of limitation, the
Employee hereby acknowledges and agrees that the provisions of Section 8(b)
above shall serve as a prohibition against him, during the Restrictive Period :
(1) directly or indirectly, contacting, soliciting or
directing any person, firm, or corporation to contact or solicit, any
of the Company's customers, prospective customers, or business partners
for the purpose of selling or attempting to sell, any products and/or
services that are the same as or similar to the products and services
provided by the Company to its customers during the Restrictive Period.
In addition, the Employee will not disclose the identity of any such
business partners, customers, or prospective customers, or any part
thereof, to any person, firm, corporation, association, or other entity
for any reason or purpose whatsoever; and
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(2) directly or indirectly, engaging or carrying on in any
manner (including, without limitation, as principal, shareholder,
partner, lender, agent, employee, consultant, or investor (other than a
passive investor with less than a five percent (5%) interest) trustee
or through the agency of any corporation, partnership, limited
liability company, or association) in any business that is in
competition with the business or proposed businesses of the Company;
and
(3) soliciting on his own behalf or on behalf of any other
person, the services of any person who is an employee of the Employer,
and soliciting any of the Employer's employees to terminate employment
with the Employer.
(d) Upon the termination of the Employee's employment for any
reason whatsoever, all documents, records, notebooks, equipment, price lists,
specifications, programs, customer and prospective customer lists and other
materials which refer or relate to any aspect of the business of the Company
which are in the possession or under the control of the Employee including all
copies thereof, shall be promptly returned to the Company. Notwithstanding
anything contained herein to the contrary, upon termination of Employee's
employment for any reason whatsoever, Employee shall be permitted to contact or
solicit any of the Company's customers or business partners for the purpose of
selling or attempting to sell, any products and/or services if, and only if,
such products and services then being sold by him are not competitive with the
products and/or services provided by or proposed to be provided by the Company.
(e) The parties hereto hereby acknowledge and agree that (i)
the Company would be irreparably injured in the event of a breach by the
Employee of any of his obligations under this Section 8, (ii) monetary damages
would not be an adequate remedy for any
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such breach, and (iii) the Company shall be entitled to injunctive relief, in
addition to any other remedy which it may have, in the event of any such breach.
(f) The rights and remedies enumerated in Section 8(e) shall
be independent of the other, and shall be enforceable, and all of 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 in equity.
(g) If any provision contained in this Section 8 is hereafter
construed to be invalid or unenforceable, the same shall not affect the
remainder of the covenant or covenants, which shall be given full effect,
without regard to the invalid portions.
(h) If any provision contained in this Section 8 is found to
be unenforceable by reason of the extent, duration or scope thereof, or
otherwise, then the court making such determination shall have the right to
reduce such extent, duration, scope or other provision and in its reduced form
any such restriction shall thereafter be enforceable as contemplated hereby.
(i) It is the intent of the parties hereto that the covenants
contained in this Section 8 shall be enforced to the fullest extent permissible
under the laws and public policies of each jurisdiction in which enforcement is
sought (the Employee hereby acknowledging that said restrictions are reasonably
necessary for the protection of the Company). Accordingly, it is hereby agreed
that if any of the provisions of this Section 8 shall be adjudicated to be
invalid or unenforceable for any reason whatsoever, said provision shall be
(only with respect to the operation thereof in the particular jurisdiction in
which such adjudication is made) construed by limiting and reducing it so as to
be enforceable to the extent permissible, without
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invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of said provision in any other jurisdiction
9. Severability. If any covenant of Employee set forth in this
Agreement shall be invalid or unenforceable in any jurisdiction because of its
duration or geographic area or both, as the case may be, such covenant shall
reduce in duration or geographic area, or both, as the case may be, to such
extent as to make it valid and enforceable in such jurisdiction and in all other
respects it shall remain in full force and effect.
10. Prior Agreements. This Agreement cancels and supersedes any and all
prior agreements and understandings between the parties hereto respecting the
employment of Employee by the Company.
11. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be delivered personally or sent by
registered or certified mail, return receipt requested, to the other party
hereto at his or its address as set forth in the beginning of this Agreement.
Either party may change the address to which notices, requests, demands and
other communications hereunder shall be sent by sending written notice of such
change of address to the other party in the manner above provided.
12. Assignability and Binding Effect. This Agreement shall inure to the
benefit of and shall be binding upon the executors, administrators, successors
and legal representatives of Employee and shall inure to the benefit of and be
binding upon the Company and its successors and assigns.
13. Waiver. Waiver by either party hereto of any breach or default by
the other party in respect of any of the terms and conditions of this Agreement
shall not operate as a waiver of any other breach or default, whether similar to
or different from the breach or default waived.
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14. Complete Understanding: Amendment and Termination. This Agreement
constitutes the complete understanding between the parties with respect to the
employment of Employee hereunder and no statement, representation, warranty or
covenant has been made by either party with respect thereto except as expressly
set froth herein. This Agreement shall not be altered, modified, amended or
terminated except by written instrument signed by each of the parties hereto;
provided, however, that the waiver by either party hereto of compliance with any
provision hereof or of any breach or default by the other party hereto need be
signed only by the party waiving such provision, breach or default.
15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which taken together
shall constitute one and the same Agreement.
16. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Connecticut.
17. Paragraph Headings. The paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
18. Consideration. Employee hereby acknowledges and agrees that the
employment opportunity encompassed in this Agreement is contingent upon the
execution of this Agreement and that such employment, in addition to the mutual
promises herein, constitutes adequate consideration for this Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
XXXXX ONLINE, INC.
By:
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Its: President and Chief Operating Officer
Date: August 1, 2001
By:
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Xxxx Xxxxxxxxxx
Date: August 1, 2001
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