FORM OF
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "AGREEMENT") is entered into
by and between SOUNDVIEW TECHNOLOGIES INCORPORATED (the
"COMPANY") and ______________ ("EMPLOYEE"), as of the 6th day of
July 1997.
SECTION I EMPLOYMENT.
The Company hereby employs Employee and Employee hereby
accepts such employment, upon the terms and conditions
hereinafter set forth, from July 6, 1997, to and including June
5, 2002 (the "TERM OF EMPLOYMENT"). Employee agrees to remain in
the employ of the Company until at least June 5, 1999 (the
"CONTRACT PERIOD"). During the Contract Period, if Employee
voluntarily terminates his employment, Employee shall find an
individual or individuals as replacements who (i) are acceptable
to and approved by the Board of Directors (such approval not to
be unreasonably withheld) and (ii) have comparable knowledge,
skills and abilities as Employee and are willing to work for
comparable salary and benefits as provided hereunder. If
Employee voluntarily terminates employment during the Contract
Period without finding such suitable and acceptable replacement,
Employee shall pay to Company as liquidated damages 75,000 shares
of the Common Stock of the Company. Employee acknowledges that
such amount is not a penalty and reflects the parties" reasonable
estimate of the minimal equity incentive needed to be given to a
potential replacement for Employee.
SECTION II DUTIES.
Employee shall serve during the course of his
employment with the Company as of the Company, and report directly
to the Board of Directors with duties and responsibilities consistent
in all respects with such positions.
Employee agrees to devote so much of his business time,
attention, and skills and efforts to the Company as is reasonably
necessary to fulfill his obligations to carry out the business
objectives of the Company, as such obligations are determined by
the Board of Directors of the Company.
For the term of this Agreement, Employee shall report
to the ____________________ of the Company.
SECTION III COMPENSATION.
Base Salary. The Company will pay to Employee a base
salary at the rate of $______ per year. Such salary shall be
earned monthly and shall be payable in periodic installments no
less frequently than monthly in accordance with the Company's
customary practices. Amounts payable shall be reduced by
standard withholding and other authorized deductions. Employee's
salary will be increased based on the Company achieving certain
performance goals based on the Company's quarterly net pre-tax
profits. For the purposes of this agreement net pre-tax profits
are any income realized by the Company after deducting all
expenses incurred by the Company, with the exception of taxes
payable, if any, from all revenue generated by the Company during
a specified period. The Company's quarterly performance goal and
corresponding salary increase are as
follows:
1) Upon the Company generating net pre-tax profits of
$250,000 in a fiscal quarter, Employee's salary shall be
increased to an annualized rate of $______.
2) Upon the Company generating net pre-tax profits of
$500,000 in a fiscal quarter, Employee's salary shall be
increased to an annualized rate of $______.
3) Upon the Company generating net pre-tax profits of
$1,000,000 in a fiscal quarter, Employee's salary shall be
increased to an annualized rate of $______.
Any such adjustments set forth in this Section III-A shall
be effective as of the beginning of the fiscal quarter next
following the quarter in which the applicable performance goal is
met.
Bonus, Savings and Retirement Plans. Employee shall be
entitled to participate in all Inventor Bonus Policies and
savings and retirement plans, practices, policies and programs,
if any, applicable generally from time to time at the discretion
of the Board of Directors of the Company.
Welfare Benefit Plans. Employee and/or his family, as
the case may be, shall be eligible for participation in and shall
receive all benefits under welfare benefit plans, practices,
policies and programs, if any, provided by the Company from time
to time (including, without limitation, medical, prescription,
dental, disability, salary continuance, employee life, group
life, accidental death and travel accident insurance plans and
programs) to the extent applicable generally from time to time as
established by the Company.
Expenses. Employee shall be entitled to receive prompt
reimbursement for all reasonable employment expenses incurred by
him in accordance with the policies, practices and procedures, if
any, as in effect generally from time to time as established by
the Company.
Fringe Benefits. Employee shall be entitled to fringe
benefits in accordance with the plans, practices, programs and
policies, if any, as in effect generally from time to time as
established by the Company.
Vacation. Employee shall be entitled to paid vacation
in accordance with the plans, policies, programs and practices,
if any, as in effect generally from time to time as established
by the Company.
Modification of Benefits. The Company reserves the
right to modify, suspend or discontinue any and all of the plans,
practices, policies and programs set forth in paragraphs B
through F above of this Section III at any time without recourse
by Employee so long as such action is taken generally with
respect to other similarly situated peer executives and does not
single out Employee.
SECTION IV TERMINATION.
Death or Disability. Employee's employment with the
Company shall terminate automatically upon Employee's death. If
the Company determines in good faith that the Disability of
Employee has occurred (pursuant to the definition of Disability
set forth below), it may give to Employee written notice in
accordance with Section XIX below of its intention to terminate
Employee's employment. In such event, Employee's employment with
the Company shall terminate effective on the 30th day after the
giving of such notice to Employee in accordance with Section XIX
below, unless within the 30 days after such notice date, Employee
shall have returned to full-time performance of his duties, in
which case Employee's employment with the Company shall resume as
if such notice of termination had never been given. During
Employee's Disability period, Employee's rights, if any, to
receive benefits under Section III-C above shall not be affected
by the Company's termination of Employee's employment with the
Company. For purposes of this Agreement, "Disability" shall mean
a physical or mental impairment which renders Employee unable to
perform the essential functions of his position, even with
reasonable accommodation which does not impose an undue hardship
on the Company for a period of not less than 90 days. The
Company reserves the right, in good faith, to make the
determination of Disability under this Agreement based upon
information supplied by Employee and/or his medical personnel, as
well as information from medical personnel (or others) selected
by the Company or its insurers.
Cause. The Company may terminate Employee's employment
for Cause. For purposes of this Agreement, "Cause" shall mean
that the Company, acting in good faith based upon the information
then known to the Company, determines that Employee has: (1)
committed a material breach of his duties and responsibilities
(other than as a result of incapacity (as defined below) due to
Disability), and such breach has not been cured after notice and
a reasonable opportunity to cure; or (2) been convicted of a
felony or misdemeanor which involves acts of moral turpitude or
which otherwise adversely affects the ability of the Company to
conduct its business in a material way; or (3) refuses to perform
required duties and responsibilities and which has or is
reasonably anticipated to have a material adverse effect on the
Company or performs them grossly incompetently; or (4) violated
any fiduciary duty owed to the Company and which has a material
adverse effect on the Company. "Incapacity" as used herein shall
be limited only to such Disability which substantially prevents
the Company from availing itself of the services of Employee.
Other than Cause or Death or Disability. The Company
may terminate Employee's employment at any time, with or without
cause, upon written notice.
Obligations of the Company Upon Termination.
1. Death or Disability. If Employee's employment is
terminated by reason of Employee's death or Disability, this
Agreement shall terminate without further obligations to
Employee or his estate, beneficiaries or legal
representatives under this Agreement, other than for (a)
payment of the sum of (i) Employee's annual base salary
(after giving effect to any adjustments to base salary
pursuant to Section III-A) through the date of termination
to the extent not theretofore paid, (ii) any compensation
previously deferred by Employee (together with any accrued
interest or earnings thereon) and any accrued vacation pay,
in each case to the extent not theretofore paid (the
sum of the amounts described in clauses (i) and (ii) shall
be hereinafter referred to as the "ACCRUED OBLIGATIONS"),
and (iii) any other compensation including the pro rata
portion of any bonus or incentive compensation payable to
the Employee in respect to the relevant fiscal year which
shall be paid to Employee or his estate, beneficiary, or
legal representatives, as applicable, in a lump sum in cash
within 30 days of the effective date of termination; and (b)
payment to Employee or his estate, beneficiary or legal
representatives, as applicable, any amounts due pursuant to
the terms of any applicable welfare benefit plans described
in Section III-C above.
2. Cause or Quit.
(a) If Employee's employment is terminated by the
Company for Cause, this Agreement shall terminate
without further obligations to Employee other than for
the timely payment of Accrued Obligations and
payment of any amounts due pursuant to the terms of any
applicable welfare benefit plans described in Section
III-C above. If it is subsequently determined by a
non-appealable court of competent jurisdiction or by
final and binding arbitration pursuant to Section V
hereof that the Company did not have Cause for
termination under Section IV-B above, then the
Company's decision to terminate shall be deemed to
have been made under Section IV-C above and the amounts
payable under Section IV-D-3 below shall be the only
amounts Employee may receive for his termination.
(b) If Employee shall quit his employment with
the Company, this Agreement shall terminate without
further obligations to Employee other than for the
timely payment of Accrued Obligations and payment of
any amounts due pursuant to the terms of any applicable
welfare benefit plans described in Section III-C above.
Nothing in this paragraph shall be deemed to imply or
be interpreted to mean that Employee has the right
to quit his employment with the Company prior to the
expiration of this Agreement or earlier termination by
the Company of Employee's employment with the Company
pursuant to the other provisions of this Agreement.
3. Other than Cause or Death or Disability. If the
Company terminates Employee's employment for other than
Cause or Death or Disability, this Agreement shall terminate
without further obligations to Employee other than the
following: (a) the Company shall timely pay or cause to be
paid to Employee the amount of the Accrued Obligations; (b)
the Company shall pay or cause to be paid to Employee two
times the Employee's total cash compensation, including
Employee's annual salary at the time of termination,
through the Term of Employment (but not less than one year),
at such times as if Employee were still employed, less
standard withholdings and other authorized deductions, and,
if such termination occurs within the first two years of the
Term of Employment, the Company will pay Employee an
additional $250,000; (c) the Company shall provide to
Employee the benefits, or comparable benefits thereto,
provided under Section III-C above through the Term of
Employment; and (d) the Company shall timely pay or cause
to be paid to Employee any amounts due pursuant to the terms
of any applicable welfare benefit plans described in Section
III-C above.
SECTION V ARBITRATION.
Any controversy or claim arising out of or relating to this
Agreement, its enforcement or interpretation, or because of an
alleged breach, default, or misrepresentation in connection with
any of its provisions, shall be submitted to arbitration, to be
held in Los Angeles County, California in accordance with Labor
Arbitration Rules of the American Arbitration Association. In
the event either party institutes arbitration under this
Agreement, the party prevailing in any such litigation shall be
entitled, in addition to all other relief, to reasonable
attorneys' fees relating to such arbitration. The nonprevailing
party shall be responsible for all costs of the arbitration,
including but not limited to, the arbitration fees, court
reporter fees, etc.
SECTION VI ANTISOLICITATION.
Employee promises and agrees that during the Term of this
Agreement, he will not influence or attempt to influence
customers, clients, partners, investors, or joint venturers of
the Company or any of its present or future subsidiaries or
affiliates, either directly or indirectly, to divert their
business or investments to any individual, partnership, firm,
business, corporation or other entity then in direct or indirect
competition with the business of the Company, or any subsidiary
or affiliate of the Company.
SECTION VII. NONCOMPETITION
A. Employee agrees that, during Term of Employment, he
will not directly or indirectly, without the prior written
consent of the Board of Directors of the Company, provide
consultative service with or without pay, own, manage, operate,
join, control, participate in, or be connected as a stockholder,
partner, or otherwise with, any business, individual, partner,
firm, corporation, or other entity which is then in competition
with the business of the Company.
B. It is expressly agreed that the Company will or would
suffer irreparable injury if Employee were to compete with the
business of the Company or any subsidiary or affiliate of the
Company in violation of this Agreement and that the Company would
by reason of such competitions be entitled to injunctive relief
in a court of appropriate jurisdiction. Employee consents and
stipulates to the entry of such injunctive relief in such a court
prohibiting him from competing with the Company or any subsidiary
or affiliate of the Company in violation of this Agreement.
SECTION VIII. SOLICITING EMPLOYEES.
Employee promises and agrees that he will not, for a period
of one year following termination of his employment or the
expiration of the Term of this Agreement, directly or indirectly
solicit any of the employees of the Company, who, at any time
during the last six months of such Employee's employment with
Company, received an annual salary of $25,000 or more as an
employee of the Company to work for any business, individual,
partnership, firm, corporation, or other entity then in direct or
indirect competition with the business of the Company or any
subsidiary or affiliate of the Company.
SECTION IX. CONFIDENTIAL INFORMATION.
Employee shall hold in a fiduciary capacity for the
benefit of the Company all secret or confidential information,
knowledge or data relating to the Company or any of its
affiliated companies, and their respective businesses or
prospective businesses, which shall have been developed or
obtained by Employee during or prior to his employment by the
Company or any of its affiliated companies and which shall not be
public knowledge (other than by acts by Employee or his
representatives or agents in violation of this Agreement). After
termination of Employee's employment with the Company, he shall
not, without the prior written consent of the Company, or as may
otherwise be required by law or legal process, communicate or
divulge any such information, knowledge or data to anyone other
than the Company and those designated by it.
Employee agrees that all styles, designs, lists,
materials, books, files, reports, correspondence, records,
software programs, invention memoranda, and other documents
(collectively, the "COMPANY MATERIAL") used, prepared, or made
available to Employee, shall be and shall remain the property of
the Company. Upon the termination of employment or the
expiration of the Term of this Agreement, all materials owned by
or related to the Company shall be returned immediately to the
Company, and Employee shall not make or retain any copies
thereof.
SECTION X. TRADE SECRETS
A. Employee acknowledges that the Company possesses and
will continue to develop and acquire valuable Proprietary
Information (as defined below), including information that
Employee may develop or discover as a result of Employee's
employment with the Company. The value of that Proprietary
Information depends on it remaining confidential. The Company
will depends on Employee to maintain that confidentiality, and
Employee agrees to accept that position of confidence and trust.
B. As used in this Agreement, "Proprietary Information"
means any information (including any formula, pattern,
compilation, device, method, technique or process) that was
developed by, became known by, or was assigned or otherwise
conveyed to the Company and derives independent economic value,
actual or potential, from not being generally known to the public
or to other persons who can obtain economic value from its
disclosure or use, and includes information of the Company, its
customers, suppliers, joint venturers, licensors, licensees,
distributors and other persons and entities with whom the Company
does business.
Proprietary Information includes, without limitation, trade
secrets, information, data, know-how, software programs,
improvements, inventions, marketing plans, strategies, forecasts,
computer programs, copyrightable material and customer lists.
C. All Proprietary Information shall be the sole property
of the Company and its assigns, and the Company and its assigns
shall be the sole owner of all patents, copyrights and other
rights in connection therewith. Employee agrees to assign to the
Company any rights Employee may have or acquire in such
Proprietary Information. At all times, both during Employee's
Term of Employment by the Company and after its termination,
Employee agrees to keep in confidence and trust all Proprietary
Information, and Employee agrees not use or discuss any
Proprietary Information or anything relating to it without the
written consent of the Company, except as may be necessary in the
ordinary course of performing my duties to the Company. Employee
agrees to cooperate with the Company and use his best efforts to
prevent the unauthorized disclosure, use or reproduction of all
Proprietary Information.
SECTION XI. OWNERSHIP OF INVENTIONS
A. During the Term of Employment, Employee agrees to
promptly and fully disclose to the Company, or any persons
designated by it, all discoveries, improvements, inventions,
formulas, ideas, processes, designs, techniques, know-how, data,
and computer programs, whether or not patentable, made or
conceived or reduced to practice or learned by Employee, either
alone or jointly with others, during the Term of Employment that
are specifically related to the business of the Company (all said
improvements, inventions, formulas, ideas, processes, designs,
techniques, know-how, data, and computer programs shall be
hereinafter collectively called "Inventions").
B. Employee agrees that all Inventions which Employee
make, conceive, reduce to practice or develop (in whole or in
part, either alone or jointly with others) during Term of
Employment shall be the sole property of the Company to the
maximum extent permitted by law and the Company shall be the sole
owner of all patents, copyrights and other intellectual property
or other rights in connection therewith. Employee agrees to
assign to the Company any rights Employee may have or acquire in
such Inventions and any right, title and interest in any patents,
copyrights, or patent or copyright applications based thereon.
This Agreement does not require assignment of an invention which
an employee cannot be obligated to assign under federal or state
law. However, Employee agrees to disclose any Inventions as
required by Section X hereof regardless of whether Employee
believes the Invention is protected by law, in order to permit
the Company to engage in a review process to determine such
issues as may arise. Such disclosure shall be received in
confidence by the Company. Employee further understands that
Employee bears the burden of proving that an Invention cannot
belong to the Company under applicable federal or state laws.
C. Employee agrees to perform, during and after Term of
Employment, all acts deemed necessary or desirable by the Company
to permit and assist it, at the Company's expense, in obtaining
and enforcing patents, copyrights or other rights on such
Inventions and improvements in any and all countries. Such acts
may include, but are not limited to, execution of documents and
assistance or cooperation in legal proceedings. Employee agrees
to irrevocably designate and appoint the Company and its duly
authorized officers and agents, as Employee's agents and
attorneys-in-fact to act for and in Employee's behalf and instead
of Employee, to execute and file any applications or related
filings and to do all other lawfully permitted acts to further
the prosecution and issuance of patents, copyrights or other
rights thereon with the same legal force and effect as if
executed by Employee.
D. Notwithstanding the foregoing, Employee agrees to
assign to the Company (or to any of its nominees) all rights
which Employee may have or acquire in any Invention, full title
to which is required to be in the United States by a contract
between the Company and the United States or any of its agencies.
E. Employee will be entitled to bonuses under the
Company's Incentive Bonus Policy as in effect from time to time.
SECTION XII. SUCCESSORS.
A. This Agreement is personal to Employee and shall not,
without the prior written consent of the Company, be assignable
by Employee.
B. This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns and any
such successor or assignee shall be deemed substituted for the
Company under the terms of this Agreement for all purposes. As
used herein, "successor" and "assignee" shall include any person,
firm, corporation or other business entity which at any time,
whether by purchase, merger or otherwise, directly or indirectly
acquires the stock of the Company or to which the Company assigns
this Agreement by operation of law or otherwise.
SECTION XIII. WAIVER.
No waiver of any breach of any term or provision of this
Agreement shall be construed to be, nor shall be, a waiver of any
other breach of this Agreement. No waiver shall be binding
unless in writing and signed by the party waiving the breach.
SECTION XIV. MODIFICATION.
This Agreement may not be amended or modified other than by
a written agreement executed by Employee and an authorized
officer of the Company.
SECTION XV. SAVINGS CLAUSE.
If any provision of this Agreement or the application
thereof is held invalid, the invalidity shall not affect other
provisions or applications of the Agreement which can be given
effect without the invalid provisions or applications and to this
end the provisions of this Agreement are declared to be
severable.
SECTION XVI. COMPLETE AGREEMENT.
This instrument constitutes and contains the entire
agreement and understanding concerning Employee's employment with
the Company and the other subject matters addressed herein
between the parties, and supersedes and replaces all prior
negotiations and all agreements proposed or otherwise, whether
written or oral, concerning the subject matters hereof. This is
an integrated document.
SECTION XVII. GOVERNING LAW.
This Agreement has been executed and delivered within the
State of Connecticut, and the rights and obligations of the
parties hereunder shall be construed and enforced in accordance
with, and governed by, by the laws of the State of California
without regard to principles of conflict of laws.
SECTION XVIII. CONSTRUCTION.
Each party has cooperated in the drafting and preparation of
this Agreement. Hence, in any construction to be made of this
Agreement, the same shall not be construed against any party on
the basis that the party was the drafter. The captions of this
Agreement are not part of the provisions hereof and shall have no
force or effect.
SECTION XIX. COMMUNICATIONS.
All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been
duly given when deposited in the United States mail by first
class, registered or certified mail, postage prepaid, addressed
to Employee at Soundview Technologies, Two Soundview Drive,
Greenwich, Connecticut 06830 or addressed to the Company at 00 X.
Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000. Either party may
change the address at which notice shall be given by written
notice given in the above manner.
SECTION XX. EXECUTION.
This Agreement is being executed in one or more
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
Photographic copies of such signed counterparts may be used in
lieu of the originals for any purpose.
SECTION XXI. LEGAL COUNSEL.
Employee and the Company recognize that this is a legally
binding contract and acknowledge and agree that they have had the
opportunity to consult with legal counsel of their choice.
In witness whereof, the parties hereto have executed this
Agreement as of the date first above written.
SOUNDVIEW TECHNOLOGIES
INCORPORATED
By:
R. Xxxxx Xxxxxxx
Corporate Secretary
H. XXX XXXXXX
"EMPLOYEE"
By:
