EXHIBIT 10.20
POINTCAST INC.
PART-TIME EMPLOYMENT AND NON-COMPETITION AGREEMENT
THIS PART-TIME EMPLOYMENT AND NON-COMPETITION AGREEMENT (the "Agreement")
is entered into by and between PointCast Inc. ("PointCast") and Xxxxxxx X.
Xxxxxxx ("Employee") (together, the "Parties").
WHEREAS, Employee is and has been employed by PointCast as a full-time
employee; and
WHEREAS, the Parties desire to enter into an agreement covering the future
termination of such employment, if any; and
WHEREAS, the Parties have mutually agreed to, in the event of any future
termination of Employee's employment, (i) release each other from any claims
arising from or related to the full-time employment relationship, and (ii)
transition Employee into a position wherein he provides part-time employment
services to PointCast; and
WHEREAS PointCast desires to ensure that Employee does not compete with it
or engage in certain solicitations for the period of time set forth herein;
NOW, THEREFORE, in consideration of the covenants and agreements
hereinafter set forth, the parties hereto agree as follows:
1. Effectiveness of Agreement. This Agreement shall be effective on the
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date signed by the Parties, and shall govern the Employee's provision of
services to PointCast as of the date, if any, upon which his full-time
employment with PointCast terminates (the "Employment Transition Date").
2. Part-Time Employment; Board Membership; Duties. The Parties agree
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that Employee's continued provision of services to PointCast during the Part-
Time Employment Term (as defined in Section 3 of this Agreement) shall be upon
the terms and conditions set forth herein. During the Part-Time Employment Term,
Employee shall be required to devote such time in rendering his services as
shall be mutually agreed upon and acceptable to the Employee and to PointCast.
During the Part-Time Employment Term, Employee shall be free to serve as a
director, employee, consultant or advisor to any other corporation or other
business enterprise without the prior written consent of PointCast so long as
such activities do not interfere with his duties and obligations under this
Agreement, including, without limitation, Employee's obligations under Section 7
hereof. It is understood and agreed that Employee will be considered an
employee of PointCast for tax purposes and for the purposes of this Agreement
and any other contracts between Employee and PointCast for the duration of the
Part-Time Employment Term.
However, Employee agrees that the only benefits he shall be entitled to as such
an employee are those specifically set forth or referred to herein as inuring to
Employee's benefit. Employee acknowledges that as such an employee he shall not
have the power to bind PointCast.
3. Part-Time Employment Term. Employee's provision of services under
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this Agreement shall commence at the Employment Transition Date. The period
commencing on the Employment Transition Date and ending one year later is
referred to herein as the "Part-Time Employment Term."
4. Compensation.
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(a) Cash Compensation. Subject to Employee not materially breaching
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this Agreement, PointCast shall pay Employee $150,000 during the twelve-month
Part-Time Employment Term, payable in accordance with PointCast's standard
policy and timing.
(b) Continued Vesting. Notwithstanding any contrary provisions of
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Employee's stock purchase/option agreements and subject to Employee not
willfully and materially breaching this Agreement, Employee's outstanding
PointCast stock options and PointCast restricted stock shall continue to vest
during the twelve-month Part-Time Employment Term.
5. Employee Benefits. As of the Employment Transition Date, except with
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respect to COBRA benefits, Employee shall not be eligible to receive severance
or other benefits under any of PointCast's benefit plans and Employee expressly
waives any rights thereto. Employee and his spouse and/or dependents shall be
entitled to group health, dental and vision continuation coverage under COBRA,
at PointCast's expense during the Part-Time Employment Term, and thereafter at
Employee's expense.
6. Death. In the event of Employee's death during the Part-Time
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Employment Term, PointCast shall provide to Employee's estate the benefits
specifically provided for in Section 4 hereof as if Employee had continued
living.
7. Covenants Not to Compete And Solicit.
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(a) Covenant Not to Compete. During the Part-Time Employment Term,
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Employee will not render services in the "Restricted Business" as an employee or
consultant to any business that engages in a "Restricted Business" in a
"Restricted Territory" (as such terms are defined below).
(b) Covenant Not to Solicit. During the Part-Time Employment Term,
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Employee will not directly or indirectly:
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(i) solicit, encourage, or take any other action which is
intended to induce any employee or independent contractor of PointCast or any
affiliated corporation to terminate his or its relationship with PointCast or
any affiliated corporation, or
(ii) interfere in any manner with the contractual or employment
relationship between PointCast or any affiliated corporation and any such
employee, independent contractor or supplier of PointCast or any affiliated
corporation.
Notwithstanding any of the foregoing, nothing shall prohibit Employee or
any business in which Employee is an employee, officer, director or shareholder
from (i) soliciting and hiring persons who have resigned as employees or
consultants of PointCast or (ii) soliciting and hiring employees or consultants
of PointCast that either initiate the contact with Employee or the business or
respond to ads for employment by Employee or the business with the intent of
having such employee or consultant become engaged in or with a business whether
or not the business that the employee or contractor is engaged in is the
Restricted Business.
(c) Restricted Business. "Restricted Business" means a business
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which generates revenue through subscription or advertising delivered against
news via the internet or corporate intranets; provided, however, that a
"Restricted Business" shall not include a business that the Board does not
reasonably believe to be in competition with PointCast.
(d) Restricted Territory. "Restricted Territory" means each county in
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the State of California, each State in the United States and each country in the
world.
(e) Representations. The Parties intend that the covenants contained
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in Sections 7(a) and (b) shall be construed as a series of separate covenants,
one for each county, city, state, territory, jurisdiction, country or analogous
entity of the Restricted Territory. Except for geographic coverage, each such
separate covenant shall be deemed identical. Employee represents that he (i) is
familiar with the covenants not to compete and not to solicit contained herein,
and (ii) is fully aware of his obligations thereunder, including, without
limitation, the reasonableness of the length of time, scope and geographic
coverage of these covenants.
(f) Termination. Employee's obligations under this Section 7 shall
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terminate upon a "change of control" of PointCast. For purposes of this
Agreement a "change of control" shall be (a) a dissolution or liquidation of
PointCast, (b) a merger or consolidation of PointCast in which the shareholders
of PointCast immediately prior to such merger or consolidation do not own a
majority of the voting power of the surviving corporation or its parent
immediately after the merger or consolidation, or (c) the sale of substantially
all of the assets of PointCast, or (d) any other corporate transaction, business
combination or tender offer in which more than 50% of the voting power of
PointCast is sold or transferred.
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8. Non-Disparagement. Each Party agrees to refrain from any
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disparagement, criticism, defamation, slander of the other, or tortious
interference with the contracts and relationships of the other.
9. Mutual Release of Claims.
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(a) Except as set forth in Section 9(b), Employee and PointCast, on
behalf of themselves, and their respective heirs, executors, officers,
directors, employees, investors, shareholders, administrators, predecessor and
successor corporations, and assigns, hereby fully and forever release each other
and their respective heirs, executors, officers, directors, employees,
investors, shareholders, administrators, predecessor and successor corporations,
and assigns, of and from any claim, duty, obligation or cause of action relating
to any matters of any kind, whether presently known or unknown, suspected or
unsuspected, that any of them may possess arising from any omissions, acts or
facts that have occurred up until and including the Employment Transition Date,
including, but not limited to,
(i) any and all claims relating to or arising from Employee's
full-time employment relationship with PointCast and the termination of that
relationship;
(ii) any and all claims relating to, or arising from, Employee's
right to purchase, or actual purchase of shares of stock of PointCast;
(iii) any and all claims for or relating to wrongful discharge of
employment; breach of contract, or breach or failure to perform duties or
obligations as an employee, officer or director both express and implied; breach
of a covenant of good faith and fair dealing, both express and implied;
negligent or intentional infliction of emotional distress; negligent or
intentional misrepresentation; negligent or intentional interference with
contract or prospective economic advantage; and defamation;
(iv) any and all claims for violation of any federal, state or
municipal statute, including, but not limited to, Title VII of the Civil Rights
Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in Employment
Act of 1967, the Americans with Disabilities Act of 1990, and the California
Fair Employment and Housing Act;
(v) any and all claims arising out of any other laws and
regulations relating to employment or employment discrimination; and
(vi) any and all claims for attorneys' fees and costs.
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PointCast and Employee agree that the release set forth in this section shall be
and remain in effect in all respects as a complete general release as to the
matters released. The Parties agree to re-execute this Agreement as of the
Employment Transition Date in order to facilitate this release of claims.
(b) This release does not extend to or release any obligations
incurred under or with respect to (i) this Agreement, (ii) Employee's rights to
stock and stock options currently issued to Employee and Employee's right to
continue to vest to stock or stock options as contemplated herein and in such
stock or stock option agreements, and (iii) the Amended and Restated Investor
Rights Agreement dated July 19, 1996.
10. Arbitration and Equitable Relief.
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(a) The Parties agree that any dispute or controversy arising out
of, relating to, or in connection with this Agreement, or the interpretation,
validity, construction, performance, breach, or termination thereof shall be
settled by arbitration to be held in Santa Xxxxx County, California, in
accordance with the National Rules for the Resolution of Employment Disputes
then in effect of the American Arbitration Association (the "Rules"). The
arbitrator may grant injunctions or other relief in such dispute or controversy.
The decision of the arbitrator shall be final, conclusive and binding on the
parties to the arbitration. Judgment may be entered on the arbitrator's
decision in any court having jurisdiction.
(b) The arbitrator shall apply California law to the merits of any
dispute or claim, without reference to rules of conflict of law. The
arbitration proceedings shall be governed by federal arbitration law and by the
Rules, without reference to state arbitration law. The parties hereto hereby
expressly consent to the personal jurisdiction of the state and federal courts
located in California for any action or proceeding arising from or relating to
this Agreement and/or relating to any arbitration in which the parties are
participants.
(c) and expenses of such arbitration, and shall separately pay its
counsel fees and expenses.
(d) THE PARTIES HERETO HAVE READ AND UNDERSTAND SECTION 10, WHICH
DISCUSSES ARBITRATION. THE PARTIES HERETO UNDERSTAND THAT BY SIGNING THIS
AGREEMENT, THEY AGREE TO SUBMIT ANY FUTURE CLAIMS ARISING OUT OF, RELATING TO,
OR IN CONNECTION WITH THIS AGREEMENT, OR THE INTERPRETATION, VALIDITY,
CONSTRUCTION, PERFORMANCE, BREACH, OR TERMINATION THEREOF TO BINDING
ARBITRATION, AND THAT THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER OF THEIR
RIGHT TO A JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO
ALL ASPECTS OF THE EMPLOYER/EMPLOYEE RELATIONSHIP, INCLUDING BUT NOT LIMITED TO,
THE FOLLOWING CLAIMS:
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(i) ANY AND ALL CLAIMS FOR WRONGFUL DISCHARGE OF EMPLOYMENT;
BREACH OF CONTRACT, OR BREACH OR FAILURE TO PERFORM DUTIES OR OBLIGATIONS AS AN
EMPLOYEE, OFFICER OF DIRECTOR, BOTH EXPRESS AND IMPLIED; BREACH OF THE COVENANT
OF GOOD FAITH AND FAIR DEALING, BOTH EXPRESS AND IMPLIED; NEGLIGENT OR
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS; NEGLIGENT OR INTENTIONAL
MISREPRESENTATION; NEGLIGENT OR INTENTIONAL INTERFERENCE WITH CONTRACT OR
PROSPECTIVE ECONOMIC ADVANTAGE; AND DEFAMATION.
(ii) ANY AND ALL CLAIMS FOR VIOLATION OF ANY FEDERAL STATE OR
MUNICIPAL STATUTE, INCLUDING, BUT NOT LIMITED TO, TITLE VII OF THE CIVIL RIGHTS
ACT OF 1964, THE CIVIL RIGHTS ACT OF 1991, THE AGE DISCRIMINATION IN EMPLOYMENT
ACT OF 1967, THE AMERICANS WITH DISABILITIES ACT OF 1990, THE FAIR LABOR
STANDARDS ACT, THE CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT, AND LABOR CODE
SECTION 201, et seq;
(iii) ANY AND ALL CLAIMS ARISING OUT OF ANY OTHER LAWS AND
REGULATIONS RELATING TO EMPLOYMENT OR EMPLOYMENT DISCRIMINATION.
11. No Other Payments Due. PointCast agrees to pay Employee on or before
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the Employment Transition Date all salary and expense reimbursements as may then
be due Employee. Employee will execute an acknowledgment of receipt of all such
payments as received.
12. Civil Code Section 1542. The Parties represent that they are not
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aware of any claim by either of them other than the claims that are released by
this Agreement. Employee and PointCast acknowledge that they have been advised
by legal counsel and are familiar with the provisions of California Civil Code
Section 1542, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.
Employee and PointCast, being aware of said code section, agree to
expressly waive any rights they may have thereunder, as well as under any other
statute or common law principles of similar effect.
13. Notices. Any notice required or permitted under this Agreement shall
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be given in writing and shall be deemed to have been effectively made or given
if personally delivered, or if sent by facsimile, or mailed to the other party
at its address set forth below in this Section 13, or
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at such other address as such party may designate by written notice to the other
party hereto. Any effective notice hereunder shall be deemed given on the date
personally delivered or on the date sent by facsimile or deposited in the United
States mail (sent by certified mail, return receipt requested), as the case may
be, at the following addresses:
(i) If to PointCast:
PointCast Inc.
0000 Xxxxxxxxx, Xxxxx 000
Xxxxx Xxxxx, XX 00000
Att.: Chief Financial Officer
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(ii) If to Employee:
Xxxxxxx X. Xxxxxxx
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14. Severability. If any term or provision of this Agreement shall
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to any extent be declared illegal or unenforceable by an arbitrator or a duly
authorized court of competent jurisdiction, then the remainder of this Agreement
or the application of such term or provision in circumstances other than those
as to which it is so declared illegal or unenforceable, shall not be affected
thereby, each term and provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law and the illegal or
unenforceable term or provision shall be deemed replaced by a term or provision
that is valid and enforceable and that comes closest to expressing the intention
of the invalid or unenforceable term of provision.
15. Entire Agreement. This Agreement, the Proprietary Information
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Agreement (subject to the provisions of this Agreement which address the subject
matters covered by Section 7, which provision supersedes any provisions in the
Proprietary Information Agreement that address similar matters) entered into by
and between Employee and PointCast and the written agreements referenced herein
represent the entire agreement of the parties with respect to the matters set
forth herein, and supersedes all such previous contracts, arrangements or
understandings between PointCast and Employee with respect to the subject
matter hereof. The Agreement may be amended at any time only by mutual written
agreement of the parties hereto.
16. Successors. This Agreement shall be binding upon and inure to the
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benefit of, and shall be enforceable by Employee, PointCast, their respective
heirs, executors, administrators and assigns. Subject to the provisions of 7(f)
hereof, in the event PointCast is merged, consolidated, liquidated by a parent
corporation, or otherwise combined into one or more corporations, the provisions
of this Agreement shall be binding upon and inure to the benefit of the parent
corporation or the corporation resulting from such merger or to which the asset
shall be sold or transferred, which corporation from and after the date of such
merger, consolidation, sale or
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transfer shall be deemed to be PointCast for purposes of this Agreement. In the
event of any other assignment of this Agreement by PointCast, by operation of
law or otherwise, PointCast shall remain primarily liable for its obligations
hereunder. This Agreement shall not be assignable by Employee.
17. Headings. The headings of sections herein are included solely for
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convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
18. Counterparts. This Agreement may be executed by either of the parties
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hereto in counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
June ____, 1997.
POINTCAST INC. __________________________________
Xxxxxx Xxxxxxxx
__________________________________
Re-Execution Signature
__________________________________
Re-Execution Date
EMPLOYEE __________________________________
Xxxxxxx X. Xxxxxxx
__________________________________
Re-Execution Signature
__________________________________
Re-Execution Date
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