Exhibit 10.24
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, entered into as of ___________, 1996, by and
between STREAMLINE, INC. a Delaware business corporation having its principal
office at 00 Xxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx 00000 (the "Company") ,
and XXXXX X. XXXXX, an individual residing at 00 Xxxxxxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx 00000 (hereinafter called the "Executive").
R E C I T A L S:
WHEREAS, the Company wishes to retain the services of the Executive and
to compensate him therefor; and
WHEREAS, the Executive is desirous of committing himself to serve the
Company on the terms herein provided.
A G R E E M E N T S:
NOW, THEREFORE, in consideration of the foregoing and of the
respective covenants and agreements of the parties herein contained, the parties
hereto agree as follows:
1. EMPLOYMENT. (a) The Company will employ the Executive and the
Executive will serve the Company as Vice President of Marketing and
Merchandising, upon the terms and conditions provided herein. The Executive's
duties under this Agreement shall be to devise and direct the Company's
marketing strategy and direct its sales program and related staff. In the
discharge of his duties hereunder, the Executive shall report to the President
of the Company and shall keep such officer informed of the Executive's
activities hereunder. In rendering his services hereunder, the Executive shall
not be required to reside outside the greater Boston area.
(b) During the term hereof, the Executive shall be employed by the
Company on a full-time basis and shall perform such duties and responsibilities
as are specified above, and any such other related duties as may reasonably be
designated from time to time by the President or Board of Directors of the
Company (the "Board") . During the term of his employment hereunder, the
Executive shall use his best efforts in the discharge of his duties hereunder
and in furtherance of the business of the Company.
2. TERM. The initial term of the Executive's employment hereunder shall
be for the 12-month period beginning on the date hereof (the "Initial Term"),
unless earlier terminated as herein provided. Thereafter, the
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Executive's employment hereunder shall be extended for successive 12-month
periods, unless either party advises the other in writing, at least 60 days
prior to the expiration of the then current term of his employment (the "Term"),
that such employment shall not be further extended, in which event the
Executive's employment hereunder shall terminate as of the end of the then
current Term hereof.
3. BASE SALARY. The Company agrees to pay and the Executive agrees to
accept, in accordance with the provisions contained herein, a base salary at an
annual rate of not less than One Hundred Thousand Dollars ($100,000), payable
semi-monthly and subject to being increased from time to time by the Board of
Directors of the Company, following and based upon annual reviews of the
Executive's performance, the first such review to be made not later than the
first annual anniversary of the date hereof. Such base salary, as from time to
time increased, is hereinafter referred to as the "Base Salary".
4. ADDITIONAL COMPENSATION. In addition to his Base Salary, in
consideration of (a) the execution of this Agreement, the Executive shall be
paid a one time bonus of $15, 000, payable in equal installments on the first
two semi-monthly dates Base Salary is paid hereunder and (b) a [ ] study to be
completed by the end of 1996, the Executive shall be paid $2,500 or before [ ],
1996.
5. Benefits. During the term hereof, the Executive shall be entitled to
(i) paid vacation at the rate of ___________ (_____) weeks per 12-month period,
to be taken at mutually convenient times; (ii) subject to any contribution
therefor generally required of senior executive employees of the Company, to
participate in any and all employee benefit plans from time to time in effect
for senior executives of the Company generally, except to the extent such plans
are in a category of benefit otherwise provided to the Executive. Such
participation shall be subject to (A) the terms of the applicable plan
documents, and (B) generally applicable policies of the Company; (iii) an
incentive stock option to purchase an aggregate of 175,000 shares of the
Company's common stock for $1.02 per share, such option to be in the form in
which annexed hereto as Exhibit 5; and (iv) those other employee benefits
described in Schedule 5 hereto.
6. BUSINESS EXPENSES. The Company shall promptly pay or reimburse the
Executive for business expenses incurred or paid by him in the performance of
his duties and responsibilities hereunder, in accordance with such written
policies as may from time to time by implemented by the Board and be provided to
the Executive. The Company shall further reimburse the
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Executive upon request for one-half (1/2) of the legal expenses incurred by him
on or in the preparation and negotiation of this Agreement.
7. TERMINATION.
(a) DEATH. The Executive's employment hereunder shall
terminate upon his death, in which event the Company shall be obliged to pay to
the Executive's estate any Base Salary and Additional Compensation earned and
owing prior to the Executive's death, plus any expense reimbursement owed the
Executive prior to his death.
(b) CAUSE. The Company may terminate the Executive's
employment hereunder for Cause at any time upon notice to the Executive setting
forth in reasonable detail the nature of such Cause. For the purposes of this
Agreement, "Cause," as determined by the Board in its reasonable judgment, shall
mean: (i) a Criminal Conviction (as hereinafter defined); (ii) the failure by
the Executive to substantially perform his duties hereunder, other than any such
failure resulting from the Executive's Disability (as defined in ss.7(c)
hereof), where such failure is not cured to the reasonable satisfaction of the
Board within 30 days after Executive's receipt of written notice thereof,
including in reasonable detail the nature of such failure; or, (iii) the
engaging by the Executive in fraud or other intentional misconduct with respect
to the Company. As used herein, "Criminal Conviction" means any conviction of a
criminal violation, related to the Executive's duties or responsibilities to the
Company. In the event of any termination under this ss.7(b), the Company shall
pay to the Executive any Base Salary and Additional Compensation earned and
owing prior to the Date of Termination of the Executive's employment, plus any
expense reimbursement owed the Executive prior to the Date of Termination of his
employment.
(c) DISABILITY. (i) The Company may terminate the Executive's
employment hereunder upon notice to him, in the event that the Executive becomes
disabled during his employment hereunder through any illness, injury, accident
or condition of either a physical or psychological nature and, as a result, is
unable to perform substantially all of his duties and responsibilities hereunder
for 120 days cumulatively during any period of 365 consecutive calendar days. In
the event of any termination under this ss.7(c), the Company shall pay to the
Executive or his legal representative any Base Salary and Additional
Compensation earned and owing prior to the Date of Termination of the
Executive's employment, plus any expense reimbursement owed the Executive prior
to the Date of Termination of his employment.
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(ii) The Board may designate another employee to act in the Executive's
place during any period of the Executive's disability. Notwithstanding any such
designation, the Executive shall continue to receive his Base Salary in
accordance with ss.3 hereof (and, if then unpaid, Additional Compensation in
accordance with ss.4 hereof), less any amounts received by the Executive under
any disability income plan provided Executive by the Company, and shall continue
to participate in Company benefit plans in accordance with ss.5 hereof to the
extent permitted by the then current terms of the applicable benefit plans,
until the Date of Termination of the Executive's employment.
(iii) If any question shall arise as to whether during any period the
Executive is disabled through any-illness, injury, accident or condition of
either a physical or psychological nature so as to be unable to perform
substantially all of his duties and responsibilities hereunder, the Executive
may, and at the request of the Company shall, submit to a medical examination by
a physician selected by the Company to whom the Executive or his duly appointed
guardian, if any, has no reasonable objection, to determine whether the
Executive is so disabled and such determination shall for the purposes of this
Agreement be conclusive of the issue.
(d) BY THE COMPANY OTHER THAN FOR CAUSE. The Company may at any time
terminate the Executive's employment hereunder other than for Cause at any time
upon notice to the Executive. In the event of such termination, then until the
later of (i) the conclusion of the Initial Term hereof, or (ii) the conclusion
of a period of two (2) months following the date when Notice of Termination
under this ss.7(d) is given, the Company shall continue to pay the Executive his
Base Salary at the rate then in effect (and, if then unpaid, Additional
Compensation in accordance with ss.4 hereof) and to provide Executive any
benefits then applicable to the Executive, provided that the Executive is
entitled to continue such participation is not permitted, the Company shall pay
the Executive in cash upon such Date of Termination the reasonable value
thereof.
(e) NOTICE OF TERMINATION. Any termination by the Company pursuant to
ss.ss.7(b), 7(c) or 7(d) hereof shall be communicated by written Notice of
Termination to the Executive. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice which shall indicate the specific termination
provision in this Agreement relied upon and (in the case of termination under
ss.ss.7(b) or (c) hereof) shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated.
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(f) DATE OF TERMINATION. The Date of Termination of the Executive's
employment shall mean (i) if the Executive's employment is terminated by his
death, the date of his death, and (ii) if the Executive's employment is
terminated for any other reason, the date on which a Notice of Termination is
given.
8. PROPRIETARY INFORMATION, NON-COMPETITION AND NON-SOLICITATION. (a).
The Executive acknowledges that the Company continually develops Proprietary
Information, that the Executive may develop Proprietary Information for the
Company, and that the Executive may learn of Proprietary Information during the
course of his employment with the Company. The Executive will not, except as may
be required by applicable law or legal process, intentionally disclose any
Proprietary Information to any person or entity other than employees of or
consultants to the Company or use the same for any purposes (other than in the
performance of his duties as an employee of the Company) without written
approval by an officer of the Company, either during or after his employment
with the Company, unless and until such Proprietary Information has become
public knowledge without fault by the Executive.
(b) As used herein, "Proprietary Information" means any and all
information, whether or not in writing, of the Company and/or any of its more
than 50%-owned subsidiaries (each an "Affiliate") of a private, secret or
confidential nature concerning the business, business relationships or financial
affairs of the Company and/or any of its Affiliates, the confidentiality of
which is legally protectible under applicable law. By way of illustration, but
not limitation, Proprietary Information may include inventions, products,
processes, methods, techniques, formulas, compositions, compounds, projects,
developments, plans, research data, clinical data, financial data, personnel
data, computer programs, customer and supplier lists, and specialized knowledge
of customers or prospective customers of the Company. Proprietary Information
does not include any information which was or is generally available to the
public at the time of disclosure, which is or becomes generally available to the
public other than by a breach of this Agreement, information rightfully
available from a third party without an obligation of confidentiality to the
Company; or general information or experience acquired by the Executive in the
course of his employment.
(c) The Executive agrees that all files, letters, memoranda, reports,
records, data, sketches, drawings, laboratory notebooks, program listings, or
other written, photographic, or other tangible material containing Proprietary
Information, whether created by the Executive or others, which shall come into
his custody or possession, shall be and are the exclusive
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property of the Company to be used by the Executive only in the performance of
his duties for the Company. All such materials or copies thereof and all
tangible property of the Company in the custody or possession of the Executive
shall be delivered to the Company, upon the earlier of (i) a written request by
the President of the Company, or (ii) termination of his employment. After such
delivery, the Executive shall not retain any such materials or copies thereof or
any such tangible property.
(d) The Executive agrees that his obligation not to disclose or to use
information and materials of the types set forth in subparagraphs (b) and (c)
above, and his obligation to return materials and tangible property, set forth
in subparagraph (c) above, also extends to such types of information, materials
and tangible property of customers of the Company or suppliers to the Company or
other third parties who may have disclosed or entrusted the same to the Company
or to the Executive in confidence.
(e) The Executive agrees that some restrictions on his activities
during and after the Term of his employment are necessary to protect the
legitimate interests of the Company. The Executive therefore agrees that, (i)
during the Term of his employment with the Company, he will not engage in any
outside business activity competitive with the business of the Company or its
Affiliates, unless disclosed to and approved in writing by the President or the
Board; (ii) for 24 months from the date of termination of his employment by
reason of the Executive's resignation (the "Non-competition Period"), the
Executive shall not within the states of Maine, Vermont, New Hampshire,
Massachusetts, Rhode Island and Connecticut, as an individual proprietor,
partner, stockholder, officer, employee, director, joint venturer, lender or
consultant, (A) develop, design, produce, market, sell or render (or assist any
other person in developing, designing, producing, marketing, selling or
rendering) products or services competitive with those developed, designed,
produced, marketed, sold or rendered by the Company while the Executive was
employed by the Company, or (B) solicit, divert or take away, or attempt to
divert or to take away, the business patronage of any of the clients, customers
or accounts which were served by the Executive while he was employed by the
Company; and (iii) during the Non-Competition Period, the Executive shall not
directly or indirectly recruit or solicit any employee of the Company, or induce
or attempt to induce any employee of the Company to terminate his or her
employment with the Company.
(f) The Executive acknowledges that he has carefully read and
considered all the terms and conditions of this Agreement, including the
restraints imposed upon him pursuant to this Section 8. The Executive agrees
that said restraints are necessary for the reasonable and proper protection of
the Company and that each and every one of the restraints is reasonable in
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respect to subject matter, length of time and geographic area. The Executive
therefore agrees that the Company, in addition to any other remedies available
to it, shall be entitled to preliminary and permanent injunctive relief against
any breach of threatened breach by the Executive of any of said covenants. The
parties further agree that, in the event that any provision of this ss.8 shall
be determined by any court of competent jurisdiction to be unenforceable by
reason of its extending over too great a time, too large a geographic area, or
too great a range of activities, such provisions shall be deemed to be modified
to permit its enforcement to the maximum extent permitted by law. Nothing herein
contained shall prevent the Executive from holding or investing in securities
listed on a national securities exchange or sold in the over-the-counter market,
provided such investment do not exceed in the aggregate one percent (1%) of the
issued and outstanding equity interests of a firm which is a competitor of the
Company within the meaning of this ss.8.
9. DEVELOPMENTS. (a) The Executive will make full and prompt disclosure
to the Company of all inventions, improvements discoveries, methods,
developments, software, and works of authorship, whether, patentable or not,
which are created, made, conceived or reduced to practice by him or under his
direction or jointly with others during the Term of his employment by the
Company, whether or not during normal working hours or on the premises of the
Company (all of which are collectively referred to in this Agreement as
"Developments") .
(b) The Executive agrees to assign and does hereby assign to the
Company (or any person or entity designated by the Company all his right, title
and interest in and to all Developments and all related patents, patent
applications, copyrights and copyright applications. However, this ss.9(b) shall
not apply to Developments which do not relate to the employment duties of the
Executive or the present or planned business or research and development of the
Company and which are made and conceived by the Executive not during normal
working hours, not on the Company's Premises and not using the Company's tools,
devices, equipment or Proprietary Information. The Executive understands that,
to the extent this Agreement shall be construed in accordance with the laws of
any jurisdiction which precludes a requirement in an employee agreement to
assign certain classes of inventions in an employee, this ss.9(b) shall be
interpreted not to apply to any invention which a court rules or the Company
agrees falls within such classes.
(c) The Executive agrees to cooperate fully with the Company, both
during and after the Term of his employment with the Company, at the Company's
expense, with respect to the procurement, maintenance and
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enforcement of copyrights, patents and other intellectual property rights (both
in the United States and foreign countries) relating to Developments. The
Executive shall sign all papers, including, without limitation, copyright
applications, patent applications, declarations, oaths, formal assignments and
assignments of priority rights, which the Company reasonably deems necessary or
desirable in order to protect its rights and interests in any Development.
(d) The Executive hereby represents that, except as the Executive may
otherwise have disclosed in writing to the Company, the Executive is not bound
by the terms of any agreement with any previous employer or other party to
refrain from using or disclosing any trade secret or confidential or proprietary
information in the course of his employment with the Company or to refrain from
competing, directly or indirectly, with the business of such previous employer
or any other party. The Executive further represents that his performance of all
the terms of this Agreement and as an employee of the Company does not and will
not breach any agreement to keep in confidence proprietary information,
knowledge or data acquired by the Executive in confidence or in trust prior to
his employment with the Company, and the Executive will not disclose to the
Company or induce the Company to use any confidential or proprietary information
or material belonging to any previous employer or others.
(e) The Executive acknowledges that the Company from time to time may
have agreements with other persons or with the United States Government, or
agencies thereof, which impose obligations or restrictions on the Company
regarding inventions made during the course of work under such agreements or
regarding the confidential nature of such work. The Executive agrees to be bound
by all such obligations and restrictions which are made known to the Executive
and are not contrary to his rights hereunder or under applicable law, and to
take all action necessary to discharge the obligations of the Company under such
agreements.
10. ASSIGNMENT. Neither the Company nor the Executive may assign this
Agreement or any interest herein, by operation of law or otherwise, without the
prior written consent of the other. This Agreement shall inure to the benefit of
and be binding upon the Company and the Executive, their respective successors,
executors, administrators, heirs and permitted assigns.
11. NO CONFLICT WITH OTHER AGREEMENT. The Executive represents that the
execution and performance by him of this Agreement does not and will not
conflict with or breach the terms of any other agreement by which the Employee
is bound.
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12. SEVERABILITY. If all or any portion of any provision of this
Agreement shall to any extent be declared illegal or unenforceable by a court of
competent jurisdiction, then the remainder of this Agreement, or the application
of such portion or provision in circumstances other than those as to which it is
so declared illegal or unenforceable, shall not be affected thereby, and each
portion and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
13. WAIVER. No waiver of any provision hereof shall be effective unless
made in writing and signed by the waiving party. The failure of either party to
require the performance of any term or obligation of this Agreement, or the
waiver by either party of any breach of this Agreement, shall not prevent any
subsequent enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.
14. NOTICES. All communications provided for herein shall be in
writing, and if addressed to the Executive shall only be hand delivered or sent
by registered or certified mail, return receipt requested, postage prepaid,
addressed to:
Xx. Xxxxx X. Xxxxx
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
with a copy to
Xxxxxx X. Xxxxxx, Esq.
Sherin and Lodgen LLP
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
or if addressed to the Company shall only be hand delivered or sent by
registered or certified mail, return receipt requested, postage prepaid,
addressed to:
Streamline, Inc.
00 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn.: President
with a copy to:
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or to such other address as the party or person to receive such notice shall
hereafter advise the other party hereto in accordance with this provision, and
shall be deemed given on the date of the first attempted delivery thereof by
hand or by the Postal Service, as shown in the latter case by the records of the
Postal Service.
15. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes and
terminates without liability all prior communications, agreements and
understandings, written or oral, with respect to the terms and conditions of the
Executive's employment.
16. AMENDMENTS. This Agreement may be amended or modified only by a
written instrument signed by the Executive and by a duly authorized
representative of the Company.
17. HEADINGS. The headings and caption in this Agreement are for
convenience only and in no way define or describe the scope or content of any
provision of this Agreement.
18. GOVERNING LAW; PLACE OF SUIT. This is a Massachusetts contract and
shall be construed and enforced under and be governed in all respects by the
laws of the Commonwealth of Massachusetts, without regard to the conflicts of
laws principles of that or any other jurisdiction. Any action, suit, or other
legal proceeding which is commenced to resolve any matter arising under or
relating to any provision of this Agreement shall be commenced only in a court
of the Commonwealth of Massachusetts (or, if appropriate, a federal court
located within Massachusetts), and the Company and the Executive each consents
to the jurisdiction of such a court, and agrees that service of process from
such court may be effected without the requirement of personal service by
mailing the same to such party in accordance with the provisions of ss.14
hereof.
IN WITNESS WHEREOF, this Agreement has been executed as a sealed
instrument by the Company, by its duly authorized representative, and by the
Executive as of the date first above written.
THE EXECUTIVE STREAMLINE, INC.
/s/ XXXXX X. XXXXX By: /s/ XXXXXXX X. XXXXXXX
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Xxxxx X. Xxxxx JULY 1, 1996
Name: XXXXXXX X. XXXXXXX
Title: CHAIRMAN & CEO
