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Exhibit 10.25
EMPLOYMENT AGREEMENT
THIS AGREEMENT dated as of March 8, 2000 between
ScreaimingMedia Inc. a Delaware corporation (the "Company") and Xxxxx X. Xxxxxxx
(the "Executive").
WHEREAS the parties desire to enter into an employment
agreement, on the terms and conditions hereinafter set forth, providing for the
employment of the Executive by the Company for the term herein specified;
NOW, THEREFORE, in consideration of the mutual agreements
hereinafter set forth, the parties hereto agree as follows:
SECTION 1. EMPLOYMENT AND TERM.
The Company hereby employs the Executive, and the Executive
hereby agrees to serve, as an executive employee of the Company with the duties
set forth in Section 2, for a term (hereinafter called the "Term of Employment")
beginning March 8, 2000, and ending on March 7,2003, unless sooner terminated as
provided herein. Commencing on March 8,2003, the Term of Employment shall be
automatically renewed for an additional one-year term on each March 8 unless the
Company shall have given the Executive, or the Executive shall have given to the
Company, not less than 30 days' prior written notice of its intent not to renew
this Agreement.
SECTION 2. DUTIES.
(a) The Executive agrees that during the Term of Employment, he
will hold the office of Chief Financial Officer of the Company reporting to the
Company's Chief Executive Officer. The Executive agrees that he will perform
faithfully and to the best of his ability such duties and assignments relating
to the business of the Company, as the Board of Directors or the Chief Executive
Officer of the Company shall direct and consistent with the office of Chief
Financial Officer (if, but only if, the duties of such position are not
inconsistent with the duties customarily performed by a chief financial officer.
The Company represents to the Executive that the Board of Directors has
authorized the making of this Agreement and has approved the appointment of
Executive as Chief Financial Officer of the Company.
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(b) During the Term of Employment, the Executive shall, except
during customary vacation periods and periods of illness, devote all of his
business time and attention to the performance of his duties hereunder and to
the business and affairs of the Company and to promoting the best interests of
the Company and he shall not, either during or outside of normal business hours,
engage in any activity inimical to such best interests. Notwithstanding the
foregoing, Executive may serve as a Director on Boards of organizations which do
not compete with the Company, engage in charitable or civic pursuits provided
that such service or pursuits do not interfere with Executive's obligations
under the Agreement and may own equity or debt securities in any company, so
long as such equity or debt securities are publicly traded and the Executive's
interest does not exceed 5% of the particular class of securities then
outstanding.
SECTION 3. COMPENSATION DURING TERM OF EMPLOYMENT.
(a) BASE SALARY AND ANNUAL MINIMUM GUARANTEED BONUS. During the
Term of Employment, the Company shall pay to the Executive compensation (in
addition to the compensation provided for elsewhere in this Agreement) in equal
installments at the rate of $225,000 per year (such amount being herein called
"Base Salary") and a Minimum Guaranteed Bonus of $50,000 payable quarterly (such
amount being herein called "Minimum Guaranteed Bonus"). The Executive's Base
Salary and Minimum Guaranteed Bonus shall be reviewed at least annually during
the Term of Employment with regard to potential increases as authorized by the
Board of Directors. The Executive's Base Salary shall be paid in such periodic
installments, as the Company may determine, but not less often than monthly. The
Executive's Minimum Guaranteed Bonus will be payable in equal quarterly
installments.
(b) MERIT BONUS. During the Term of Employment, the Executive
shall be entitled to participate during the Term of Employment in any Company
bonus program in which senior executives of the Company are eligible to
participate on a level and on terms no less favorable than other senior
executives of the Company (such amount being called a "Merit Bonus").
(c) STOCK OPTION. Effective as of the first day of the Term of
Employment, the Company shall grant to the Executive a seven-year non-qualified
stock option (the "Option") under its 1999 Stock Option Plan to purchase 275,000
shares of Common Stock of the Company, par value $.01 per share, at an exercise
price of
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$3.50 per share. The agreement evidencing the Option shall be in the form
attached as Exhibit A.
(d) FRINGE BENEFITS AND PERQUISITES. During the Term of
Employment, the Executive shall enjoy the customary perquisites of office,
including but not limited to office space and furnishings, secretarial services,
expense reimbursements and any similar emoluments customarily afforded to senior
executive officers of the Company as authorized or approved by the Board of
Directors. The Company shall provide Executive with a full-time Executive
Assistant. The Executive shall also be entitled to receive or participate in the
highest level of all "fringe benefits" and employee benefit plans, if any, now
or hereafter provided or made available by the Company to its executives or
management personnel generally, such as, but not limited to, group
hospitalization, medical, life and disability insurance, and pension,
retirement, profit-sharing and medical reimbursement plans, all as the Board of
Directors shall determine. Notwithstanding the terms of any Company group
medical plan, the Executive and his dependents shall be eligible for coverage
thereunder beginning April 1, 2000.
(e) VACATIONS. The Executive shall be entitled each year to paid
vacation of four weeks. Except as provided in Section 4 (a) and Section 4(c),
the Company shall not pay the Executive any additional compensation for any
vacation time not used by the Executive.
SECTION 4. TERMINATION OF EMPLOYMENT.
(a) DEATH OR TOTAL DISABILITY. The employment of the Executive
will terminate upon his death or if, by reason of partial or total disability,
Executive is incapable of performing his principal duties hereunder for a period
of 90 consecutive working days or for more than 120 working days in any 12 month
period ("Disability"), if, during the Term of Employment, the employment of the
Executive is terminated due to death or Disability, the Executive or his estate
shall receive, within 30 days of such termination, the Base Salary and Minimum
Guaranteed Bonus provided for in Section 3 as then in effect, accrued through
the date of termination of Executive's employment ("Date of Termination") and
accrued but unpaid vacation in respect of the year in which termination occurs.
Except as otherwise provided in this Agreement, upon the Date of Termination all
unvested Company equity awards, including but not limited to the Option, and all
other benefits under this Agreement shall lapse, expire and be forfeited (other
than the proceeds of any insurance or
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disability policy or medical coverage provided by the Company which are or
become payable by reason of the Executive's death or Disability, as the case may
be).
(b) FOR CAUSE OR FOR LACK OF GOOD REASON. The employment of the
Executive may be terminated by the Company at any time for Cause, as defined
below. If, during the Term of Employment, the employment of the Executive is
terminated by the Company for Cause or by the Executive without Good Reason, as
defined below, the Executive shall receive, within 30 days of such termination,
the Base Salary and Minimum Guaranteed Bonus provided for in Section 3 as then
in effect, accrued through the Date of Termination. Except as otherwise provided
in this Agreement, upon the Date of Termination the unvested portion of all
Company equity awards, including but not limited to the Option, and all other
benefits under this Agreement shall lapse, expire and be forfeited.
(c) WITHOUT CAUSE OR WITH GOOD REASON. The employment of the
Executive may also be terminated by the Company at any time without Cause or by
the Executive at any time with Good Reason. If, during the Term of Employment,
the employment of the Executive is terminated by the Company without Cause, or
by the Executive with Good Reason, the Executive shall continue to receive the
Base Salary and Minimum Guaranteed Bonus provided for in Section 3 as then in
effect and medical and other insurance coverage in effect on the Date of
Termination for six months immediately following termination. Further, the
Company shall pay to the Executive a pro rata portion of the Merit Bonus,
provided for in Section 3, in respect of the year in which termination of
employment occurs, calculated from the commencement of such year through the
Date of Termination. The Company shall pay to the Executive all vacation in
respect of the year in which such termination of employment occurs that is
accrued to the Date of Termination but unpaid as of the Date of Termination.
Upon the Termination of Executive under this Section 4(c), all Company equity
awards, including but not limited to the Option, shall become vested to the
extent such awards would have become vested as of the date which is the first
anniversary of the Date of Termination absent such termination of employment,
and the remainder of the unvested Company equity awards, including but not
limited to the Option, shall immediately terminate.
(d) DEFINITION OF "CAUSE" AND "GOOD REASON". "Cause" means (i)
willful failure of the Executive to perform his duties with the Company which
have been duly assigned to the Executive and which duties are commensurate with
those of the position for which Executive is then employed, and which failure is
not cured (if capable of cure) within 30 days after receipt of written notice of
such failure, (ii)
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the engaging by the Executive in willful conduct which is materially injurious
to the Company, (iii) the conviction of the Executive of any crime or offense
constituting a felony, or (iv) a failure by the Executive to comply with any
material provision of this Agreement, which failure is not cured (if capable of
cure) within 30 days after receipt of written notice of such non-compliance by
the Executive. Termination of the Executive for "cause" shall mean termination
by action of at least a majority of the Company's Board of Directors, at a
meeting duly called and held upon at least 30 days written notice to the
Executive specifying the particulars of the action or inaction alleged to
constitute "cause" and at which meeting the Executive and his counsel were
entitled to be present and given adequate opportunity to be heard. Action or
inaction by the Executive shall not be considered "willful" unless done or
omitted by him (i) intentionally or not in good faith and (ii) without
reasonable belief that his action or inaction was in the best interest of the
Company, and shall not include failure to act by reason of total or partial
incapacity due to physical or mental illness.
"Good Reason" means (i) a material adverse alteration in the
nature or status of the Executive's position, duties or responsibilities from
those in effect as of the inception of the Term of Employment; (ii) a reduction
in or failure to pay or provide any of the compensation set forth in this
Agreement which is not cured within 30 days after receipt by the Company of
written notice thereof; or (iii) the relocation of the Company's corporate
headquarters or the Executive's position outside of New York City.
SECTION 5. COVENANT NOT TO COMPETE.
Following the termination of the Executive's employment
pursuant to Section 4(c), the Company shall be entitled to reduce, on a
dollar-for-dollar basis, its severance obligation pursuant to Section 4(c) to
the extent that the Executive receives compensation for services rendered, with
a business that is competitive with that of the Company (including through
self-employment) during such six-month period. In the case of any termination of
Executive's employment under this Agreement, for a period of six months after
the end of the Term of Employment, the Executive shall not solicit for the
purpose of diverting business from the Company, for himself or a business
competitive with that of the Company or any of its then subsidiaries, business
from any person, firm or corporation which shall, at the time that the Term of
Employment ends, be an existing customer of the Company or any such subsidiary
or solicit, raid or entice or induce any employee of the Company or any of its
subsidiaries to become employed by any other business enterprise. It is
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understood that general and trade advertising is not to be deemed a form of
"solicitation" for purposes of this Agreement. As used herein, "existing
customer" means any person, firm or corporation which is on the list or lists
maintained by the Company or any subsidiary of its customers, as well as any
person, firm or corporation which has made a purchase from the Company or a
subsidiary within the preceding year.
SECTION 6. COMPANY'S RIGHT TO INJUNCTIVE RELIEF.
The Executive acknowledges that his services to the Company,
those of a senior managerial executive, with an intimate knowledge of and day to
day dealing with the Company's customers, distributors, suppliers and the key
employees of the Company and its subsidiaries, as well as an intimate knowledge
of the plans and strategies of the Company and its subsidiaries for present and
future businesses and extensions thereof are of a unique character, which gives
them a peculiar value to the Company, the loss of which cannot be reasonably or
adequately compensated in damages in an action at law, and that therefore, in
addition to any other remedy. which the Company may have at law or in equity,
the Company and each relevant subsidiary shall be entitled to injunctive relief
for a breach of this Agreement by the Executive.
SECTION 7. TRADE SECRETS AND CONFIDENTIAL INFORMATION.
The Executive shall not, either directly or indirectly, except
as required in the course of his employment by the Company disclose or use at
any time, whether during or subsequent to the Term of Employment, any
information of a proprietary nature owned by the Company or any of its
subsidiaries including, but not limited to, (i) lists of customers, clients and
contacts, (ii) contracts with customers, programmers, developers, suppliers,
distributors and other dealers, marketing plans, financial condition and results
of operation, and (iii) records, data, formulae, documents, specifications,
inventions, processes, methods and intangible rights which are acquired by him
in the performance of his duties for the Company or any subsidiary thereof and
which are of a confidential information or trade secret nature. All inventions,
processes, methods and intangible rights, lists of customers, clients and
contacts, contracts with customers, suppliers and distributors, records, files,
drawings, documents, equipment and the like, relating to the business of the
Company or a subsidiary, which the Executive shall invent, develop, conceive,
produce, prepare, use, construct or observe, shall be and remain the sole
property of the Company or the relevant subsidiary. Upon the termination of his
employment (or
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earlier upon request of the Company), the Executive shall return to the
possession of the Company all materials (and all copies thereof) involving any
and all confidential information or trade secrets of, and shall not take any
material or copies thereof from the possession of, the Company or any
subsidiary.
SECTION 8. CERTAIN ADDITIONAL PAYMENTS.
In the event it is determined that any payment or distribution
made, or benefit provided (included, without limitation, the acceleration of any
payment, distribution or benefit and the acceleration of vesting of any stock
option, restricted stock or other award), by the Company to or for the benefit
of the Executive (whether paid or payable or distributed or distributable
pursuant to the terms of this Agreement or otherwise, but determined without
regard to any additional payments required under this Agreement (a "payment")
would be subject to the excise tax imposed by Section 4999 of the Code (or any
similar excise tax) or any interest or penalties are incurred by the Executive
with respect to such excise tax (such excise tax, together with any such
interest and penalties, collectively referred to as the "Excise Tax"), then the
Executive will be entitled to receive an additional payment (a "Gross-Up
Payment") from the Company in an amount such that after payment by the Executive
of all taxes (including any Excise Tax, income tax or payroll tax) imposed upon
the Gross-Up Payment, and any interest or penalties imposed with respect to such
taxes caused by the Company's negligence, Executive will retain from the
Gross-Up Payment an amount equal to the Excise Tax imposed upon the Payments.
SECTION 9. MERGERS AND CONSOLIDATIONS: ASSIGNABILITY.
In the event that the Company or any successor to the Company
shall at any time be merged or consolidated into or with any other entity or
entities, or in the event that substantially all of the assets of the Company or
any such successor shall be sold or otherwise transferred to another entity, the
provisions of this Agreement shall be expressly assumed by such succeeding
entity and shall be binding upon and shall inure to the benefit of such
succeeding entity. Except as provided in this Section 9, this Agreement shall
not be assignable by the Company or by any such successor referred to in this
Section 9. This Agreement shall not be assignable by the Executive, but in the
event of his death it shall be binding upon and inure to the benefit of his
legal representatives to the extent required to effectuate the terms hereof.
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SECTION 10. MISCELLANEOUS.
(a) The captions in this Agreement are not part of the provisions
hereof, are merely for the purpose of reference and shall have no force or
effect for any purpose whatsoever, including the construction of the provisions
of this agreement, and if any caption is inconsistent with any provisions of
this Agreement, such provisions shall govern.
(b) This Agreement is made in, and shall be governed by and
construed in accordance with the internal laws of, the State of New York,
without regard to its conflicts of laws principles.
(c) This Agreement contains a complete statement of all of the
arrangements between the parties with respect to the subject matter hereof; and
there are no representations, agreements, arrangements or understandings, oral
or written, between the parties relating to the subject matter of this
Agreement, which are not fully expressed in this Agreement. This Agreement may
not' be waived, changed, modified or discharged orally, but only by an agreement
in writing signed by the party against whom any waiver, change, modification or
discharge is sought.
(d) All notices given hereunder shall be in writing and shall be
sent by registered or certified mail, return receipt requested, and, if intended
for the Company, shall be addressed to it at its principal office at 000 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 for the attention of Xxxxxxx X. Xxxxx,
Esq., General Counsel of the Company with a copy to Xxxx X. Xxxxxx, President of
the Company, or at such other address and for the attention of such other person
of which the Company shall have given notice to the Executive in the manner
herein provided, and, if intended for the Executive, shall be addressed to him
at 0000 Xxxxx Xxxxxx, Xxxxxxxxx 00X, Xxx Xxxx, XX 00000, or at such other
address or to such designee of which the Executive shall have given notice to
the Company in the manner herein provided. A copy of any notice to the Executive
hereunder shall also be sent to Xxxxxx X. Oper, Esq. at 00 Xxxxxxxxxx Xxxxxx,
Xxxxxxxxx, XX 00000. Each such notice shall be deemed to be given on the date
received at the address of the addressee.
(e) The Executive irrevocably (i) consents to the jurisdiction and
venue of the United States District Court for the Southern District of New York
(or, if jurisdiction is not available in such forum, to the jurisdiction of the
courts of the State of New York located in New York City) in connection with any
action, suit or other proceeding arising out of or relating to this Agreement or
any act taken or
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omitted hereunder, (ii) waives and agrees not to assert in any such action, suit
or other proceeding that he is not personally subject to the jurisdiction of
such courts, that the action, suit or other proceeding is brought in an
inconvenient forum or that the venue of the action, suit or other proceeding is
improper, (iii) waives personal service of any summons, complaint or other
process and (iv) agrees that the service thereof may be made by certified or
registered mail, return receipt requested, directed to the Executive at his
address for purposes of notices hereunder. Nothing contained herein shall affect
the rights of the Company to bring such an action, suit or other proceeding in
any other jurisdiction.
(f) This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors, assigns, heirs
and legal representatives but neither this Agreement nor any rights hereunder
shall be assignable by Executive without the Company's written consent.
(g) In the event that any one or more of the provisions of this
Agreement shall be held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remainder of the Agreement shall not in any
way be affected or impaired thereby. Moreover, if any one or more of the
provisions contained in this Agreement shall be held to be excessively broad as
to duration, activity or subject, such provisions shall be construed by limiting
and reducing them so as to be enforceable to the maximum extent allowed by
applicable law.
(h) This Agreement may be executed in one or more counterparts,
which, together, shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
SCREAMINGMEDIA INC.
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Chief Executive Officer
XXXXX X. XXXXXXX
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
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SCREAMINGMEDIA INC.
STOCK OPTION AGREEMENT
UNDER 1999 STOCK OPTION PLAN
NON-QUALIFIED STOCK OPTION
AGREEMENT entered into as of March 8, 2000 (the "Date of Grant") by and
between SCREAMINGMEDIA INC., a Delaware corporation (the "Company"), and Xxxxx
X. Xxxxxxx (the "Employee"), an employee of the Company (or one of its
subsidiaries) (the Company and its subsidiaries herein together referred to as
the "Company"). Capitalized terms not defined herein shall have the meanings
ascribed to them in the Company's 1999 Stock Option Plan.
WHEREAS, the Company has concurrently herewith entered into an
Employment Agreement with the Employee (the "Employment Agreement"); and
WHEREAS, the Company desires to grant the Employee a non-qualified
stock option under the Company's 1999 Stock Option Plan (the 'Plan") to acquire
shares of the Company's Common Stock, $.0l par value per share (the "Shares");
WHEREAS, Section 6 of the Plan provides that each option is to be
evidenced by an option agreement, setting forth the terms and conditions of the
option.
NOW THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein and in the Employment Agreement, the
Company and the Employee hereby agree as follows:
1. Grant of Option. The Company hereby grants to the Employee a
non-qualified stock option (the "Option") to purchase 275,000 Shares on the
terms and conditions hereinafter set forth.
2. Purchase Price. The purchase price ("Purchase Price") for the Shares
covered by the Option shall be $3.50 per Share.
3. Time of Exercise of Option. The Option shall become exercisable (i)
with respect to 25% of the Shares covered thereby on September 8, 2000; and (ii)
with respect to the remaining 75% of the Shares covered thereby in ten equal
installments on each December 8, March 8, June 8 and September 8 of 2001 and
2002, and each of January 8 and March 7, 2003, until the Option is vested in
full on March 7, 2003;
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provided that, except as otherwise provided herein, the Employee is employed by
the Company on each such date.
4. Term of Option: Exercisability.
(a) Term.
(1) The Option shall expire on the date that is seven
years after the Date of Grant, but shall be subject to earlier
termination as herein provided.
(2) Except as otherwise provided in this Section 4,
subject to Section 4(b)(l), if the Employee at any time hereafter.
ceases for any reason to be an employee of the Company, the Option
shall terminate in its entirety on the last thy of the third month
following the Date of Termination (as defined in the Employment
Agreement), or on the date on which the Option expires by its terms,
whichever occurs first.
(3) Notwithstanding the foregoing, if such termination of
employment is because of the Employee's Disability (as defined in the
Employment Agreement), the Option shall remain exercisable, to the
extent exercisable on the date of termination, until the last thy of
the third month following the Date of Termination, or until the date on
which the Option expires by its terms, whichever occurs first.
(4) Notwithstanding the foregoing, if such termination of
employment is by the Company for Cause (as defined in the Employment
Agreement) or by the Employee without Good Reason (as defined in the
Employment Agreement), the Option granted to such Employee shall remain
exercisable, to the extent exercisable on the Date of Termination,
until the last day of the third month following the Date of Termination
or until the date on which the Option expires by its terms, whichever
occurs first.
(5) Notwithstanding the foregoing, in the event of the
death of the Employee, the Option granted to such Employee shall remain
exercisable, to the extent exercisable on the Date of Termination,
until the last day of the third month following the Date of
Termination, or until the date on which the Option expires by its
terms, whichever occurs first.
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(b) Exercisability.
(1) If the Employee ceases to be an employee of the
Company, except as otherwise herein provided, the Option granted to the
Employee hereunder shall be exercisable only to the extent that the
right to purchase Shares under such Option has accrued and is in effect
on the date such Employee ceases to be an employee of the Company. No
partial exercise of the Option may be made for less than 25 full
Shares.
(2) Notwithstanding the foregoing, in the event that the
Employee's employment with the Company is terminated either (i) by the
Company without Cause or (ii) by the Executive for Good Reason (as each
term is defined in the Employment Agreement), that portion of the
Option that is not exercisable as of the effective date of termination
will become exercisable to the extent it would have been exercisable on
the first anniversary of the effective date of termination, absent such
termination of employment.
(3) Notwithstanding the foregoing, in the event of a
Change in Control, the Option shall become exercisable in full and
shall remain exercisable until its termination in accordance with the
terms hereof.
"Change in Control" shall be deemed to have occurred if the
event set forth in any one of the following paragraphs shall have occurred: (1)
any Person is or becomes the "Beneficial Owner" (as defined in Rule l3d-3 under
the Exchange Act), directly or indirectly, of securities of the Company (not
including in the securities Beneficially Owned by such Person any securities
acquired directly from the Company) representing 25% or more of the voting power
of the Company's then outstanding securities, excluding any Person who becomes
such a Beneficial Owner in connection with a transaction described in subclause
(A) of clause (3) below; (2) the following individuals cease for any reason to
constitute a majority of the number of directors then serving: individuals who,
on the Effective Date, constitute the Board and any new director (other than a
director whose initial assumption of office is in connection with an actual or
threatened election contest, including but not limited to a consent
solicitation, relating to the election of directors of the Company) whose
appointment or election by the Board or nomination for election by the Company's
stockholders was approved or recommended by a vote of at least two-thirds (2/3)
of the directors then still in office who either were directors on the Effective
Date or whose appointment, election or nomination for election was
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previously so approved or recommended; (3) there is consummated a merger or
consolidation of the Company with any other corporation other than (A) a merger
or consolidation which would result in the voting securities of the Company
outstanding immediately prior to such merger or consolidation continuing to
represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity or any parent thereof) at least 50% of the
combined voting power of the voting securities of the Company or such surviving
entity or any parent thereof outstanding immediately after such merger or
consolidation, or (B) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which no Person is
or becomes the Beneficial Owner, directly or indirectly, of securities of the
Company (not including in the securities Beneficially Owned by such Person any
securities acquired directly from the Company) representing 25% or more of the
combined voting power of the Company's then outstanding securities; or (4) the
stockholders of the Company approve a plan of complete liquidation or
dissolution of the Company or there is consummated an agreement for the sale or
disposition by the Company of all or substantially all of the Company's assets,
other than a sale or disposition by the Company of all or substantially all of
the Company's assets to an entity at least 50% of the combined voting power of
the voting securities of which are owned by Persons in substantially the same
proportions as their ownership of the Company immediately prior to such sale.
5. First Refusal Rights. If Employee, at any time, or from time to time,
after exercise of this Option, receives a bona fide offer from any person .or
entity to purchase any of the Shares received upon exercise (the "Third Party
Offer"), prior to the acceptance thereof, Employee shall give written notice
thereof to the Company. Such notice (the "Offering Notice") shall contain a copy
of the Third Party Offer and state the name and address of the offeror ad the
price at which and terms upon which such Shares (the "Offered Shares") are
proposed to be transferred. The Offering Notice shall be deemed to be an offer
by the Employee to sell the Offered Shares, and for a period of 30 calendar days
thereafter the Company shall have a right of first refusal to purchase the
Offered Shares at the price and upon the other terms stated in the Offering
Notice. An acceptance of Offered Shares shall be effected by written notice (an
"Acceptance Notice") delivered to the Employee. The closing of the sale of the
Offered Shares pursuant to the exercise of the first refusal rights granted by
this Section 5 shall occur within 30 calendar days after the date of the
Acceptance Notice. The rights and obligations set forth in this Section 5 shall
terminate on the effective date of a registration statement filed by the Company
under the Securities Act of 1933 (the "1933 Act") pertaining to a firm
commitment underwritten initial public offering (an "Initial Public Offering")
of the Company's equity securities.
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6. Manner of Exercise of Option.
(a) To the extent that the right to exercise the Option has
accrued and is in effect, the Option may be exercised in full or in part by
giving written notice to the Company stating the number of Shares exercised and
accompanied by payment in full for such Shares. Payment shall be made by one or
a combination of the following methods: (i) cash (or cash equivalents acceptable
to the Compensation Committee); (ii) the surrender of previously acquired shares
of Common Stock having a fair market value less than or equal to the aggregate
exercise price, which shares shall have been held by the Employee for at least
six months prior to the date of such surrender; (iii) through the issuance, by
the Employee, of a note in favor of the Company in the amount of the purchase
price, or (iv) following an Initial Public Offering, if so determined by the
Committee prior to exercise, through a "broker cashless exercise" procedure
established by the Company from time to time. The Committee may, in its sole
discretion, authorize the Company to make or guarantee loans to the Employee to
assist the Employee in exercising Options. The Company may require that the
method of making such payment be in compliance with Section 16 and the rules and
regulations thereunder. Any payment in shares of Common Stock shall be effected
by the delivery of such shares to the Secretary of the Company, duly endorsed in
blank or accompanied by stock powers duly executed in blank, together with any
other documents and evidences as the Secretary of the Company shall require.
(b) The Company shall at all times during the term of the Option
reserve and keep available such number of Shares of its common stock as will be
sufficient to issue the shares granted in the Option. The Employee shall not
have any of the rights of a stockholder of the Company in respect of the Shares
until one or more certificates for such Shares shall be delivered to him or her
upon the due exercise of the Option.
7. Exercise Prior to Vesting: Repurchase Right
(a) Notwithstanding any other provision of this Agreement to the
contrary, the Employee may elect at any time, or from time to time, during both
(i) the term of the Option and (ii) the period during which the Employee is
employed by or providing services to the Company or any of its subsidiaries,
that the Employee may exercise all or any portion of the Option, including the
unvested portion of the Option; provided, however, that: (A) a partial exercise
of such Option shall be
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deemed to covet first vested shares and then the earliest vesting installment of
unvested shares; (B) any shares so purchased from installments which have not
vested as of the date of exercise shall be subject to a repurchase option in
favor of the Company; and (C) the Employee shall enter into a form of early
exercise stock purchase agreement with a vesting schedule that will result in
the same vesting as if no early exercise had occurred. Following termination of
employment for any reason, such unvested shares will be repurchased for
consideration equal to the aggregate price paid by the Employee for such shares.
8. Non-Transferability. The right of the Employee to exercise the Option
shall not be assignable or transferable by the Employee otherwise than by will
or the laws of descent and distribution, and the Option may be exercised during
the lifetime of the Employee only by him or her, as the case may be; provided,
however, that the Employee shall be permitted to transfer the Option during his
lifetime to one or more members of his immediate family, to a trust established
for the benefit of any such family member or to a trust controlled by the
Employee for estate planning purposes. The Option shall be null and void and
without effect upon any attempted assignment or transfer, except as herein above
provided, including without limitation any purported assignment, whether
voluntary or by operation of law, pledge, hypothecation or other disposition
contrary to the provisions hereof, or levy of execution, attachment, trustee
process or similar process, whether legal or equitable, upon the Option.
9. Representation Letter and Investment Legend.
(a) In the event that for any reason the Shares to be issued upon
exercise of the Option shall not be registered under the 1933 Act, upon any date
on which the Option is exercised in whole or in part, the person exercising the
Option shall give a written representation to the Company in the form attached
hereto as Exhibit 1 and the Company shall place an investment legend, as
described in Exhibit 1, upon any certificate for the Shares issued by reason of
such exercise.
(b) The Company shall be under no obligation to qualify Shares or
to cause a registration statement or a post-effective amendment to any
registration statement to be prepared for the purpose of covering the issue of
Shares.
10. Adjustments on Changes in Capitalization. Adjustments on Changes in
Capitalization and the like shall be made in accordance with Section 12 of the
Plan, as in effect on the date of this Agreement.
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11. No Special Employment Rights. Nothing contained in the Plan or this
Agreement shall be construed or deemed by any person under any circumstances to
bind the Company to continue the employment of the Employee for the period
within which this Option may be exercised.
12. Rights as a Shareholder. The Employee shall have no rights as a
shareholder with respect to any Shares which may be purchased by exercise of
this Option unless and until a certificate or certificates representing such
Shares are duly issued and delivered to the Employee. Except as otherwise
expressly provided in the Plan, no adjustment shall be made for dividends or
other rights for which the record date is prior to the date such stock
certificate is issued.
13. Withholding Taxes. Whenever Shares are to be issued upon exercise of
this Option, the Company shall have the right to require the Employee to remit
to the Company an amount sufficient to satisfy all federal, state and local
withholding tax requirements prior to the delivery of any certificate or
certificates for such Shares.
14. No Qualification under Section 422. It is understood and intended that
the Option granted hereunder shall not qualify as an "incentive stock option" as
defined in Section 422 of the Code.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its officer thereunto duly authorized, and the Employee has hereunto
set his hand, all as of the day and year first above written.
SCREAMINGMEDIA INC.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: General Counsel
/s/ Xxxxx X. Xxxxxxx
------------------------------------
Employee: Xxxxx X. Xxxxxxx
Address:
----------------------------
Social Security No.:
----------------
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EXHIBIT 1
TO STOCK OPTION AGREEMENT
Gentlemen:
In connection with the exercise by me as to_____shares of common stock,
par value $.01 per share, of ScreamingMedia Inc., a Delaware corporation (the
"Company"), under the non-qualified stock option dated March 8, 2000, granted to
me under the 1999 Stock Option Plan, I hereby acknowledge that I have been
informed as follows:
1. The shares of common stock of the Company to be issued to me pursuant
to the exercise of said option have not been registered under the Securities Act
of 1933, as amended (the "Act"), and accordingly, must be held indefinitely
unless such shares are subsequently registered under the Act, or an exemption
from such registration is available.
2. Routine sales of securities made in reliance upon Rule 144 under the
Act can be made only after the holding period and in limited amounts in
accordance with the terms and conditions provided by that Rule, and in any sale
to which that Rule is not applicable, registration or compliance with some other
exemption under the Act will be required.
3. The Company is under no obligation to me to register the shares or to
comply with any such exemptions under the Act
4. The availability of Rule 144 is dependent upon adequate current public
information with respect to the Company being available and, at the time that I
may desire to make a sale pursuant to the Rule, the Company may neither wish nor
be able to comply with such requirement.
In consideration of the issuance of certificates for the shares to me,
I hereby represent and warrant that I am acquiring such shares for my own
account for investment, and that I will not sell, pledge or transfer such shares
in the absence of an effective registration statement covering the same, except
as permitted by the
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provisions of Rule 144, if applicable, or some other applicable exemption under
the Act. In view of this representation and warranty, I agree that there may be
affixed to the certificates for the shares to be issued to me, and to all
certificates issued hereafter representing such shares (until in the opinion of
counsel, which opinion must be reasonably satisfactory in form and substance to
counsel for the Company, it is no longer necessary or required) a legend as
follows:
"The shares of common stock represented by this certificate have not
been registered under the Securities Act of 1933, as amended. and were
acquired by the registered holder pursuant to a representation and
warranty that such holder was acquiring such shares for his own account
and for investment, with no intention to transfer or dispose of the
same, in violation of the registration requirements of that Act. These
shares may not be sold, pledged or transferred in the absence of an
effective registration statement under the Securities Act of 1933, as
amended, or an opinion of counsel, which opinion is reasonably
satisfactory to counsel to the Company, to the effect that registration
is not required under such Act"
I further agree that the Company may place a stop order with its
transfer agent, prohibiting the transfer of such shares, so long as the legend
remains on the certificates representing the shares.
Very truly yours,
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