Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the Agreement) is being made as of the 15th
day of October 1999 between DATA BROADCASTING CORPORATION, a
Delaware corporation (the Company), having its principal offices
at 0000 Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000, and XXXXXX X.
XXXXX (the Executive), an individual residing at 000 Xxxx Xxx
Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000.
WITNESSETH:
WHEREAS, the Company desires to employ the Executive and the
Executive desires to be employed by the Company as its Executive
Vice President and Chief Financial Officer upon the terms and
conditions contained herein.
NOW, THEREFORE, in consideration of the mutual premises and
agreements contained herein, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Nature of Employment; Term of Employment. The Company
hereby employs the Executive and the Executive agrees to serve
the Company, upon the terms and conditions contained herein, for
a term commencing no later than November 30, 1999 (the Effective
Date) and continuing until June 30, 2002 (the Employment Term);
provided, however, that the Employment Term shall be extended to
June 30, 2003 if, prior to December 31, 2000, a Change in Control
(as defined in Section 8 of this Agreement) shall occur.
2. Duties and Powers as Employee. During the Employment
Term, the Executive shall be employed by the Company as its
Executive Vice President and Chief Financial Officer. The
Executive shall be responsible for finance and administration.
The Executive shall be based in the New York Metropolitan Area.
The Executive agrees to devote his full time and efforts to the
performance of his duties under this Agreement. In the
performance of his duties, the Executive shall be subject to the
direction of and shall report to the Chief Executive Officer of
the Company. The Executive shall be available to travel as the
needs of the business require.
3. Compensation.
(a) As compensation for his services hereunder, the
Company shall pay the Executive, during the Employment Term, a
base salary (the Base Salary) payable in equal semi-monthly
installments at the minimum annual rate of $300,000 through June
30, 2001 and $325,000 for the period July 1, 2001 through the
expiration of the Employment Term. Such payments shall be
subject to withholding of all taxes payable with respect thereto
and deductions for insurance contributions and the like.
Additionally, the Executive shall participate in the present or
future employee benefit plans of the Company provided that he
meets the eligibility requirements therefor.
(b) In addition to the Base Salary provided herein
Executive is eligible for a performance bonus payment (the
Bonus), on an annual basis, in a sum equal to up to 100% of the
Executive's Base Salary paid for the fiscal year then ended. The
Company and Executive acknowledge that the expected Bonus in each
fiscal year is 50% of Base Salary paid (the Target Bonus). One
half of the Bonus shall be determined in the absolute and sole
discretion of the Compensation Committee of the Board of
Directors of the Company based upon an evaluation of the
performance of the Executive and the Company during the previous
fiscal year. One half of such Bonus shall be based upon
financial criteria established at the commencement of each fiscal
year during the Employment Term. For the Company's fiscal year
ended June 30, 2000, such Bonus shall be no less than 50% of the
Base Salary paid to the Executive during such fiscal year. To
the extent that the Company determines to pay the Bonus to the
Executive, the Bonus shall be paid to the Executive within ninety
(90) days after the end of the Company's fiscal year
notwithstanding that such date may be after the expiration of the
Employment Term.
(c) Effective as of the date of this Agreement, the
Company shall issue to the Executive a non-qualified stock option
to acquire 120,000 shares of common stock of the Company. In
addition, effective upon the first anniversary of the date of
this Agreement, the Company shall issue to the Executive a
nonqualified stock option to acquire 60,000 shares of common
stock of the Company. Each such option shall vest over a period
of three years and shall have an exercise price equal to the
market price on the date of grant.
(d) In the event the Executive's present employer
requests him to repay a loan given to him in connection with his
relocation to the New York Metropolitan Area, the Company shall
pay the Executive a one time starting bonus equal to the amount
of such loan, but no greater than $25,000.
4. Expenses; Vacations. The Executive shall be entitled to
reimbursement for reasonable travel and other out-of-pocket
expenses necessarily incurred in the performance of his duties
hereunder, upon submission and approval of written statements and
bills in accordance with the then regular procedures of the
Company. The Executive shall be entitled to reasonable vacation
time in accordance with then regular procedures of the Company
governing executives as determined from time to time by the
Company's Board of Directors but in no event less than twenty
days per year.
5. Representations and Warranties of Employee. The
Executive represents and warrants to the Company that (a) he is
under no contractual or other restriction or obligation which is
inconsistent with the execution of this Agreement, the
performance of his duties hereunder, or the other rights of the
Company hereunder; and (b) he is under no physical or mental
disability that, with or without reasonable accommodation, would
hinder his performance of duties under this Agreement.
6. Non-Competition. The Executive agrees that he will not
(a) during the period he is employed under this Agreement engage
in, or otherwise directly or indirectly be employed by, or act as
a consultant or lender to, be a director, officer, employee,
owner, or partner of, any other business or organization that is
or shall then be competing with the Company, and (b) for a period
of two (2) years after he ceases to be employed by the Company
under this Agreement, directly or indirectly compete with or be
engaged in the same business as the Company, or be employed by,
or act as consultant or lender to, or be a director, officer,
employee, owner, or partner of, any business or organization
which at the time of such cessation, competes with or is engaged
in the same business as the Company, except that in each case the
provisions of this Section 6 will not be deemed breached merely
because the Executive owns not more than five percent (5.0%) of
the outstanding common stock of a corporation, if, at the time of
its acquisition by the Executive, such stock is listed on a
national securities exchange, is reported on NASDAQ, or is
regularly traded in the over-the-counter market by a member of
national securities exchange.
7. Confidential Information. All confidential information
which the Executive may now possess, may obtain during the
Employment Term, or may create prior to the end of the period he
is employed by the Company under this Agreement, relating to the
business of the Company or of any customer or supplier of the
Company shall not be published, disclosed, or made accessible by
him to any other person, form, or corporation during the
Employment Term or any time thereafter without the prior written
consent of the Company. The Executive shall return all tangible
evidence of such confidential information to the Company prior to
or at the termination of his employment.
8. Termination; Change in Control.
(a) Termination for Cause. Notwithstanding anything
herein contained, if on or after the date hereof and prior to the
end of the Employment Term, the Executive is terminated For Cause
(as defined below), then the Company shall have the right to give
notice of termination of Executive's services hereunder as of a
date to be specified in such notice, and this Agreement shall
terminate on the date so specified. Termination For Cause shall
mean the Executive shall (i) be convicted of a felony crime, (ii)
commit any act or omit to take any action in bad faith and to the
detriment of the Company, (iii) commit an act of moral turpitude,
(iv) commit an act of fraud against the Company, or (v)
materially breach any term of this Agreement and fail to correct
such breach within thirty (30) days after commission thereof.
(b) Disability. In the event that the Executive shall
be physically or mentally incapacitated or disabled or otherwise
unable fully to discharge his duties hereunder, with or without
reasonable accommodation, for a period of six months, then this
Agreement shall terminate upon 90 days written notice to the
Executive.
(c) Death. In the event that the Executive shall die,
then this Agreement shall terminate on the date of the
Executive's death.
(d) Change in Control.
(i) For purposes of this Agreement, a Change in
Control shall be deemed to have occurred if:
(A) any person, as such term is used in
Section 13(d) and 14(d) of the Securities Exchange Act of 1934,
as amended (the Exchange Act) (other than (1) the Executive or
Xxxxx X. Xxxxxxx or Xxxx X. Xxxxxxxxxxx; (2) any trustee or other
fiduciary holding securities under an employee benefit plan of
the Company or (3) any corporation owned, directly or indirectly,
by the stockholders of the Company in substantially the same
proportion as their ownership of Shares), is or becomes the
beneficial owner (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company
representing 50% or more of the combined voting power of the
Company's then outstanding voting securities;
(B) individuals who at the Effective Date
constitute the Board, and any new director whose election by the
Board or nomination for election by the Board or nomination for
election by the Company's stockholders was approved by a vote of
at least two-thirds (2/3) of the directors then still in office
who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved,
cease for any reason to constitute at least a majority thereof;
(C) the stockholders of the Company approve a
merger or consolidation of the Company with any other
corporation, other than (1) a merger or consolidation that would
result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting
securities of the surviving or parent entity outstanding
immediately after such merger or consolidation or (2) a merger or
consolidation effect to implement a recapitalization of the
Company (or similar transaction) in which no person as
hereinabove defined) acquires 50% or more of the combined voting
power of the Company's then outstanding securities;
(D) the stockholders of the Company approve a
plan of complete liquidation of the Company or an agreement for
the sale or disposition by the Company of all or substantially
all of the Company's assets (or any transaction having a similar
effect).
(e) Effect of Termination or Change in Control.
(i) In the event that this Agreement is terminated
pursuant to Section 8(a), then the Executive shall be entitled to
receive only his Base Salary at the rate provided in Section 3 to
the date on which termination shall take effect.
(ii) In the event that this Agreement is terminated by
the Company pursuant to Section 8(b) or 8(c), then the Executive,
or the Executive's beneficiary (as the case may be), shall be
entitled to receive his Base Salary at the rate provided in
Section 3 to the date on which termination shall take together
with a lump sum distribution (with no present value adjustment)
equal to the Base Salary at the rate provided in Section 3 for a
period of six months. In such event then the Executive's issued
but unvested options shall vest immediately upon such
termination. The Executive, or the Executive's beneficiary (as
the case may be), shall have the right to exercise any stock
option for a period of one year following the date of
termination, but in no event beyond the expiration date of any
such option.
(iii) In the event that this Agreement is terminated
by the Company for any reason other than pursuant to Section
8(a), (b) or (c), then the Executive, or the Executive's
beneficiary (as the case may be), shall be entitled to receive
his Base Salary at the rate provided in Section 3 to the date on
which termination shall take effect together with a lump sum
distribution (with no present value adjustment) equal to the Base
Salary and Target Bonus at the rate provided in Section 3 for a
period of the greater of one year or the balance of the
Employment Term. In the case of a Change in Control, any of the
Executive's issued but unvested options shall vest immediately
upon such Change in Control. The Executive, or the Executive's
beneficiary (as the case may be), shall have the right to
exercise any stock option for a period of one year following the
date of termination, but in no event beyond the expiration date
of any such option. In addition, in such case the two (2) year
period described in Section 6(b) of this Agreement shall be
reduced to one (1) year.
(f) Nothing contained in this Section 8 shall be deemed
to limit any other right the Company may have to terminate
Employee's employment hereunder upon any ground permitted by law.
9. Change of Control.
In the event of a future disposition of (or including) the
properties and business of the Company, substantially as an
entirety, by merger, consolidation, sale of assets, or otherwise,
the Company shall assign this letter and all of its rights and
obligations hereunder to the acquiring or surviving corporation,
such corporation shall assume in writing all of the obligations
of the Company, and the Company (in the event and so long as it
remains in business as an independent going enterprise) shall
remain liable for the performance of its obligations hereunder in
the event of an unjustified failure of the acquiring corporation
to perform its obligations under this letter.
10. Survival. The covenants, agreements, representations,
and warranties contained in or made pursuant to this Agreement
shall survive the Executive's termination of employment,
irrespective of any investigation made by or on behalf of any
party.
11. Modification. This Agreement sets forth the entire
understanding of the parties with respect to the subject matter
hereof, terminates and supersedes all existing agreements
(written, oral or otherwise) between them concerning such subject
matter, and may be modified only by a written instrument duly
executed by each party. The Executive acknowledges that no other
representations, oral or written, have been made regarding the
subject matter hereof, other than those explicitly provided
herein. The Executive further acknowledges that he has not
relied on any oral or written representations not explicitly
contained herein in executing this Agreement.
12. Notices. Any notice or other communication required or
permitted to be given hereunder shall be in writing and shall be
mailed by certified mail, return receipt requested, or delivered
against receipt to the party to whom it is to be given at the
address of such party set forth in the preamble to this Agreement
(or to such other address as the party shall have furnished in
writing in accordance with the provisions of this Section 12).
In the case of a notice to the Company, a copy of such notice
(which copy shall not constitute notice) shall be delivered to
Camhy Karlinsky & Xxxxx LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Attn. Xxxx X. Annex, Esq. Notice to the estate of
the Executive shall be sufficient if addressed to the Executive
as provided in this Section 12. Any notice or other
communication given by certified mail shall be deemed given at
the time of certification thereof, except for a notice changing a
party's address which shall be deemed given at the time of
receipt thereof.
13. Waiver. Any waiver by either party of a breach of any
provision of this Agreement shall not operate as or be construed
to be a waiver of any other breach of such provision or of any
breach of any other provision of this Agreement. The failure of
a party to insist upon strict adherence to any term of this
Agreement on one or more occasions shall not be considered a
waiver or deprive that party of the right thereafter to insist
upon strict adherence to that term or any other term of this
Agreement. Any waiver must be in writing.
14. Binding Effect. The Executive's rights and obligations
under this Agreement shall not be transferable by assignment or
otherwise, such rights shall not be subject to encumbrance or the
claims of the Executive's creditors, and any attempt to do any of
the foregoing shall be void. The provisions of this Agreement
shall be binding upon and inure to the benefit of the Executive
and his heirs and personal representatives, and shall be binding
upon and inure to the benefit of the Company and its successors
and those who are its assigns under Section 9.
15. Headings. The headings in this Agreement are solely
for the convenience of reference and shall be given no effect in
the construction or interpretation of this Agreement.
16. Counterparts; Governing Law. This Agreement may be
executed in any number of counterparts, each of which shall be
deemed an original, but all of which together shall constitute
one and the same instrument. It shall be governed by, and
construed in accordance with, the laws of the State of Wyoming,
without giving effect to the rules governing the conflicts of
laws.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first written above.
DATA BROADCASTING CORPORATION
By: /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: President
/s/ Xxxxxx X. Xxxxx
XXXXXX X. XXXXX