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EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of November 2, 1998 (the
Agreement") by and between ABACUS DIRECT CORPORATION, a Delaware corporation
having an office located at 0000 Xxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxx 00000 (the
"Corporation"), and XXXXXXXXXXX X. XXXX, having an address at 0000 Xxxxx Xxxxxx,
Xxxxxxxxxxx, XX 00000 ("Executive").
W I T N E S E T H:
WHEREAS, the Corporation desires to employ Executive in an
executive capacity and to be assured of his services as such on the terms and
conditions hereinafter set forth; and
WHEREAS, Executive is willing to accept such employment on the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth, and intending to be legally bound hereby, the
Corporation and Executive hereby agree as follows:
1. Employment.
(a) Subject to the terms and conditions set forth
in this Agreement, the Corporation offers and the Executive hereby accepts
employment, effective as of October 26, 1998 (the "Commencement Date").
(b) The Corporation hereby employs Executive as the
President and Chief Operating Officer of the Corporation subject to the
supervision and direction of the Chairman of the Board and Chief Executive
Officer of the Corporation and the Board of Directors of the Corporation.
Executive shall be responsible for the operation of the Corporation's business
and recent initiatives in the United States, together with such other
responsibilities and duties consistent with his executive position and of such
nature as are usually associated with his office as may be designated from time
to time by the Chairman of the Board and Chief Executive Officer of the
Corporation or the Board of Directors of the Corporation, including
participation in the overall development of the Corporation's business
strategies. Such duties shall be performed primarily in the Denver, Colorado
area and subject to travel outside of such area as may be necessary for
Executive to perform his duties.
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(c) Executive shall faithfully and diligently
discharge his duties hereunder and use his best efforts to implement the
policies established by the Chairman of the Board and Chief Executive Officer
and the Board of Directors of the Corporation. Executive agrees to devote
substantially all of his time and attention exclusively to the rendering of
services hereunder.
2. Compensation.
(a) During the Term of Executive's employment
hereunder, the Corporation shall cause Executive to receive a base salary in the
amount of Two Hundred Twenty Five Thousand ($225,000.00) Dollars, which base
salary shall be increased for each year of the Term thereafter in proportion to
the increase during the preceding year in the Consumer Price Index (All Urban
Consumers) published by the U.S. Department of Labor or by such higher amount as
the Corporation's Board of Directors shall in the exercise of its reasonable
discretion determine. Such base salary, as from time to time increased, is
hereafter referred to as the "Base Salary". The Base Salary shall be payable in
accordance with the present payroll practices of the Corporation. In addition,
Executive may receive such additional compensation (in the form of bonuses,
etc.) that the Corporation's Board of Directors shall, in the exercise of its
good faith and reasonable discretion, determine.
(b) In addition to the salary described in Section
2(a) above, for each fiscal or partial fiscal year of the Corporation during the
Term hereof, Executive shall be entitled to receive incentive compensation (as
described below) to be paid on or before the 90th day following the end of the
Corporation's fiscal year (a "Fiscal Year"). Executive's entitlement to
incentive compensation for any fiscal year of the Corporation shall be
predicated upon successful accomplishment of annual business related performance
goals for the Corporation established by the Compensation Committee of the Board
of Directors of the Corporation. For any Fiscal Year in which the Executive is
employed by the Company hereunder for a period constituting less than an entire
Fiscal Year (such period, a "Partial Year"), the incentive compensation payable
hereunder in respect of any such period shall be (i) based upon the Company's
level of performance during the Partial Year, and (ii) shall be in an amount
equal to the incentive compensation which would be so payable if such period
constituted the entire Fiscal Year in which it occurs multiplied by a fraction,
the numerator of which shall be the number of days in the Partial Year and the
denominator of which shall be 365.
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(c) In connection with the Executive's relocation
to the Denver, Colorado area, the Corporation shall reimburse Executive up to a
maximum of $40,000, for expenses directly relating to his relocation to the
Denver, Colorado area, including up to thirty (30) days of temporary housing and
air fare from Denver, Colorado to Florida every other weekend until January 1,
1999, upon submission of appropriate receipts and invoices therefore in
accordance with the practices of the Corporation. The Corporation shall also
reimburse Executive for the income tax gross up associated with such
reimbursement to the extent taxable to Executive.
3. Benefits, Etc. Executive shall be entitled to receive such fringe
benefits normally provided by the Corporation to executives in his position
(including life insurance and disability coverage, vacation, sickleave, medical
and dental insurance, travel and accident insurance, participation in the
Corporation' 401(k) Plan, stock options, incentive compensation plans, bonus
plans and other benefits generally available to senior executives of the
Corporation at any time during the term of this Agreement). The Corporation
agrees during the Term hereof that it will not terminate any compensation plan
or benefit program in which Executive participates or terminate Executive's
participation in any such plan or program, unless an equitable agreement
embodied in an ongoing substitute or alternative plan or program has been made
except to the extent that Executive is receiving benefits pursuant to Section
9(b) hereof.
4. Term. Subject to earlier termination as hereinafter provided, the
original term of this Agreement shall commence on the Commencement Date and
shall continue in effect for a one year period ending on the first anniversary
of the Commencement Date; provided, however, that the term of this Agreement
shall automatically be extended for three (3) additional consecutive one year
periods commencing on each of the first, second and third anniversaries of the
Commencement Date, unless not later than ninety (90) days prior to each such
anniversary date, Executive or the Corporation shall have given notice that such
party does not wish to so extend this Agreement. The term of this Agreement is
referred to herein as the "Term".
5. Termination by The Corporation. The Corporation shall
have the right to terminate this Agreement for "Disability",
"Cause" or without "Cause".
(a) Disability. Disability shall be used herein to
mean that if, as a result of Executive's incapacity due to physical or mental
illness, Executive shall have been absent from his duties with the Corporation
on a full-time basis for six (6) consecutive months, and within thirty (30) days
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after written notice of termination is given, Executive shall not have returned
to the full-time performance of Executive's duties, the Corporation may
terminate Executive's employment by reason of his "Disability."
(b) Cause. Termination by the Corporation of
Executive's employment for "Cause" shall mean termination as a result of: (i)
breach by Executive of any material provision of this Agreement; (ii) gross
negligence or willful misconduct of Executive in connection with the performance
of his duties under this Agreement, or Executive's willful refusal to perform
any of his material duties or responsibilities required pursuant to this
Agreement; (iii) Executive's misappropriation for personal use of assets or
business opportunities of the Corporation; (iv) Executive's embezzlement of the
Company's funds or property, or fraud on the part of Executive; or (v)
Executive's conviction of any Felony.
6. Termination by Executive. (a) Executive shall be entitled
to terminate his employment (i) in the event that the Corporation materially
breaches any of its obligations hereunder and such breach continues for thirty
(30) days after the Corporation receives written notice from Executive of such
breach or if at any time Executive is not reelected to serve as President and
Chief Operating Officer of the Corporation or Executive is removed as President
and Chief Operating Officer of the Corporation without "Cause" or (b) if there
is a "change in control" of the Corporation.
For purposes of this Agreement, a "change in control" of the
Corporation shall be deemed to have occurred if (a) any "Person" (as such term
is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of
the Corporation representing Forty per cent (40%) or more of the combined voting
power of the Corporation's then outstanding securities; or (b) the Board of
Directors of the Corporation shall approve a sale of all or substantially all
the assets of the Corporation unless the Executive is a member of the Board of
Directors who affirmatively votes in favor of such sale transaction giving rise
to a "change in control".
In the event that Executive becomes entitled to terminate his
employment hereunder by reason of the occurrence of a "change in control" of the
Corporation or for any reason other than a "change in control", Executive shall
be entitled to terminate his employment immediately after the occurrence of the
event giving rise to such right, which right shall continue for a period of four
(4) months from the earlier of the date on which either the Corporation informs
Executive, or Executive otherwise determines, that Executive is entitled to
exercise such right.
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7. Notice of Termination. Any purported termination by the
Corporation or by Executive shall be communicated by written Notice of
Termination to the other party hereto in accordance with Section 14 hereof. For
purposes of this Agreement, a "Notice of Termination" shall mean a notice which
shall indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive's employment under the provision so
indicated.
8. Date of Termination, Etc. "Date of Termination" shall mean
(a) if Executive's employment is terminated by the Corporation for Cause, the
date specified in the Notice of Termination, which date shall be no earlier than
the date of such Notice; (b) if Executive's employment is terminated by the
Corporation for Disability, thirty (30) days after Notice of Termination is
given (provided that Executive shall not have returned to the performance of his
duties on a full-time basis during such thirty (30) day period); (c) if
Executive's employment is terminated by the Corporation without Cause, the date
specified in the Notice of Termination, which date shall be no earlier than the
date that such notice is deemed given; (d) if Executive's employment is
terminated by Executive for any of the reasons specified in Section 6, such date
as Executive shall specify in Executive's Notice of Termination, which date
shall be no less than thirty (30) days after such Notice of Termination is
given.
9. Compensation Upon Termination, During Disability, Death or
in the Event of a Change in Control.
(a) In addition to any benefits to which Executive
is entitled under any insurance program or pension or benefit plan then in
effect, or any stock plan or restricted stock agreement, in lieu of all other
payments of salary or other compensation to which Executive would otherwise be
entitled hereunder, Executive shall be entitled to the following:
(i) If Executive's employment shall be
terminated for Cause, the Corporation shall
pay his full Base Salary through the Date
of Termination at the rate in effect at the
time Notice of Termination is given and the
Corporation shall have no further
obligations to Executive under this
Agreement unless it shall be finally
determined by a court of competent
jurisdiction that such purported
termination for Cause was not justified or
was inappropriate in the circumstances.
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(ii) If Executive's employment with the
Corporation shall be terminated other than
in anticipation of or in connection with a
"change in control" (A) by the Corporation
without Cause, (B) by Executive for any of
the reasons specified in clause (a) of the
first paragraph of Section 6 hereof, or (C)
at the expiration of this Agreement by
virtue of it not being renewed, in lieu of
any further salary payments to Executive
for periods subsequent to the Date of
Termination (including any payments
relating to any bonus or incentive
compensation), Executive shall be entitled
to receive a severance payment in an amount
equal to twelve (12) months of the Base
Salary then in effect and incentive
compensation, if earned, payable in respect
of a Partial Year pursuant to Section 2(b)
hereof relating to the period commencing on
the first day of such Fiscal Year and
ending on the Date of Termination, which
severance shall be paid either in
accordance with the Corporation's customary
payroll practices or in a lump sum, upon
expiration of such term, as Executive may
elect, in either case, subject to normal
payroll deductions.
(iii) If Executive's employment with the
Corporation shall be terminated by
Executive or by the Corporation upon or
within four (4) months following a "change
in control" pursuant to clause (b) of the
first paragraph of Section 6 hereof, then
Executive shall be entitled to the benefits
provided below:
(A) the Corporation shall pay Executive
his full Base Salary through the
Date of Termination at the rate in
effect at the time Notice of
Termination is given;
(B) In lieu of any further salary
payments to Executive for periods
subsequent to the Date of
Termination (including any payments
relating to any bonus or incentive
compensation), the Corporation shall
pay as severance pay to Executive,
not later than the fifth (5th) day
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following the Date of Termination, a
lump-sum severance payment in an
amount equal to twelve (12) months
of the Base Salary then in effect
and incentive compensation, if
earned, payable in respect of a
Partial Year pursuant to Section
2(b) hereof relating to the period
commencing on the first day of such
Fiscal Year and ending on the Date
of Termination.
(b) For a twelve (12) month period after such
termination, other than for Cause, the Corporation shall arrange to provide
Executive and his family with life, disability and health insurance benefits
substantially similar to those which Executive is receiving immediately prior to
the Notice of Termination.
(c) Anything in this Agreement to the contrary
notwithstanding, in the event that any payment and the value of any benefit,
including the vesting of options or restricted stock, received or to be received
by Executive upon a Change of Control (collectively, a "Payment") would result
in all or a portion of such Payment being subject to excise tax under Section
4999 of the Internal Revenue Code, then Executive's Payment shall be either (A)
the full Payment or (B) the maximum amount which would result in no portion of
the Payment being subject to excise tax under Section 4999 of the Internal
Revenue Code, whichever of the foregoing amounts specified in subparagraphs (A)
or (B) above, taking into account the applicable Federal, state, and local
employment taxes, income taxes, and the excise tax imposed by Section 4999 of
the Internal Revenue Code (and also taking into account Executive's particular
tax circumstances and filing status), results in the receipt by Executive of the
greatest amount notwithstanding that all or some portion of such amount may be
taxable under Section 4999 of the Internal Revenue Code; provided, however, that
Executive will be entitled to receive the full Payment only if the after tax
amount of the full payment described in subparagraph (A) above exceeds the after
tax amount resulting from the amount described in subparagraph (B) above by at
least $10,000. In the event that the Payment, or any portion of the Payment, is
reduced pursuant to this Section 9(c) to the amount described in subparagraph
(B) above, the present value of the amount to be received by Executive (for
purposes of Section 280G) must be reduced in such a way that the total amount to
be received by Executive (without regard to present value principles) is
maximized. All computations required to be made under this Section 9 (c) shall
be made by a nationally recognized accounting firm which is the Corporation's
outside auditor at the time of such determination (the "Accounting Firm"). The
Corporation shall cause the Accounting Firm to provide detailed supporting
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calculations of the amounts described herein to the Corporation and Executive
within one business day after an event entitling Executive to a Payment
hereunder. The Executive may accept, but shall not be bound to accept, the
computations made by the Accounting Firm and shall have the right to challenge
any such computations in litigation or otherwise.
10. Stock Options.
(a) The Corporation agrees to grant and issue to
Executive, under the Amended and Restated 1996 Stock Incentive Plan, as amended,
of the Corporation (the "Plan"), the following Options, as such term is defined
in the Plan, to purchase common stock (the "Common Stock") of the Corporation,
as such term is defined in the Plan:
(i) The Corporation agrees to grant and
issue to Executive, as of the date hereof, a stock option under the Plan to
purchase 125,000 shares of Common Stock, having a term of ten years, at an
exercise price equal to the Fair Market Value on the date of grant, as defined
in the Plan, and becoming exercisable in four equal annual installments
commencing the first anniversary of the date of grant.
(b) The terms and provisions of the Options and any
other compensation paid pursuant to Section 10 (b) above, shall be more fully
set forth in stock option agreements and other appropriate agreements to be
entered into by the Executive and the Corporation. The grant thereof shall be
subject to the execution of such agreements.
11. Intellectual Property Rights. All rights in inventions,
designs and intellectual property (including without limitation patents,
copyright, trade xxxx, registered designs, design rights and know-how) to which
Executive may become entitled by reason of activities in the course of
Executive's employment shall vest automatically in the Corporation and Executive
shall, at the request and expense of the Corporation, provide the Corporation
with all information, drawings and documents requested by the Corporation and
execute such documents and do such things as may be required by the Corporation
to evidence such vesting. The provisions of this Section 11 shall survive the
termination of this Agreement.
12. Non-Competition and Non-Disclosure. The parties hereto
each acknowledge and agree that they have entered into a Non-compete,
Non-disclosure Agreement and Assignment Agreement, of even date herewith
("Non-Disclosure and Non-Competition Agreement") and that such Non-Disclosure
and Non-Competition Agreement shall remain in full force and effect throughout
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the Term hereof and shall survive the termination of this Agreement. Executive
acknowledges that the provisions of the Non-Competition and Non-Disclosure
Agreement are fair and reasonable and necessary to protect the good will and
interest of the Corporation and its subsidiaries and shall constitute separate
and severable undertakings given for the benefit of each of the Corporation and
each subsidiary and may be enforced by the Corporation on behalf of any of them.
13. Successors; Binding Agreement.
(a) The Corporation will require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of the Corporation to
expressly assume and agree to perform this Agreement in the manner and to the
same extent that the Corporation would be required to perform it if no such
succession had taken place. Failure of the Corporation to obtain such assumption
and agreement prior to the effectiveness of any such succession shall be a
breach of this Agreement, and for purposes of implementing the foregoing, the
date on which any such succession becomes effective shall be deemed the Date of
Termination. As used in this Agreement, "the Corporation" shall mean the
Corporation as hereinbefore defined and any successor to its business and/or
assets, as aforesaid, which assumes and agrees to perform this Agreement by
operation of law, or otherwise.
(b) This Agreement shall inure to the benefit of
and be enforceable by the Corporation, its successors and assigns, and by
Executive, his personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If Executive should die
while any amount would still be payable to him hereunder if Executive had
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to his devisee, legatee or
other designee or, if there is no such designee, to Executive's estate.
14. Notice. For purposes of this Agreement,
notices and all other communications provided for in the Agreement shall be in
writing and shall be deemed to have been duly given when delivered by hand,
telecopied (receipt acknowledged) or mailed by United States registered mail,
return receipt requested, postage prepaid, addressed to the respective addresses
set forth on the first page of this Agreement, provided that all notices to the
Corporation shall be directed to the attention of the Board with a copy to the
Secretary of the Corporation or to such other address as either party may have
furnished to the other in writing in accordance herewith, except that notice of
change of address shall be effective only upon receipt.
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15. Miscellaneous. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to, in writing, and signed by Executive and such officer as may be
specifically designated by the Board. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreements or representations,
oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not expressly set forth in this
Agreement. Each party acknowledges that the services to be rendered under this
Agreement are unique and of extraordinary character, and in the event of a
breach by either party of any of the terms of this Agreement, the other party
shall be entitled, if it so elects, to institute and prosecute proceedings in
any court of competent jurisdiction, either at law or in equity, to obtain
damages for any breach of the terms and provisions hereunder, to enforce
specific performance by the breaching party of its obligations hereunder and to
enjoin the breaching party from acting in violation of this Agreement. Such
remedies are in addition to those otherwise available at law or in equity to the
Corporation. The validity, interpretation, construction and performance of this
Agreement shall be governed by the internal laws of the State of Colorado (other
than the choice of law principles thereof).
16. Validity. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
17. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
18. Prior Agreement. Executive represents, warrants and
covenants that the execution, delivery and performance by Executive of this
Agreement, does not and will not contravene, conflict with or constitute a
default under or violation of any law, regulation, judgment, decree, agreement,
contract or other instrument binding upon or applicable to Executive. Upon the
effectiveness of this Agreement, all prior agreements between Executive and the
Corporation will be terminated and of no further force and effect, except for
the Non-Competition and Non-Disclosure Agreement.
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IN WITNESS WHEREOF, the Corporation and Executive have
executed and delivered this Employment Agreement on the date first above
written.
ABACUS DIRECT CORPORATION
By:
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Name:
Title:
EXECUTIVE
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Xxxxxxxxxxx X. Xxxx
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