EXHIBIT 10.26
VOCUS, INC.
EMPLOYMENT AGREEMENT
To: [employee's name]:
This Employment Agreement (this "Agreement"), dated as of __________, 200__ (the
"Effective Date"), establishes the terms of your continued employment with
Vocus, Inc., a Delaware corporation (the "Company").
1) EMPLOYMENT AND DUTIES. You and the Company agree to your continued
employment as [employee's title] on the terms contained herein. In such
position, you will report directory to [title of employee that employee
reports to] (the "Direct Report"). You agree to perform whatever duties
the Direct Report may assign you from time to time that are reasonably
consistent with your position. During your employment, you agree to
devote your full business time, attention, and energies to performing
those duties (except as the Company may otherwise agree).
2) TERM. The initial term of this Agreement shall be for a period of three
years, commencing as of the Effective Date, unless terminated earlier
pursuant to Section 7 below. This Agreement shall automatically renew
for successive one-year periods thereafter (the initial term and each
such renewal period are collectively referred to as the "Term") unless,
at least six months prior to the expiration of the initial term or any
such renewal period, either party gives written notice to the other
party specifically electing to terminate this Agreement at the end of
the then-current initial term or renewal period, as applicable (a
"Notice of Non-Renewal"). In the event a Notice of Non-Renewal is
delivered by either party as provided above then, as of the end of the
Term, unless you are no longer an employee of the Company as of such
time, you shall become an at-will employee of the Company (provided
that the provisions of this Agreement that expressly survive
termination shall continue to apply to you).
3) COMPENSATION.
A) SALARY. For all services rendered by you under this Agreement,
the Company will pay you an annual salary (the "Salary") of
not less than US$[employee's annual salary], which may be
increased, but not decreased, from time to time in such
amounts as may be determined by the Company's Board of
Directors (the "Board") or the compensation committee thereof,
in accordance with its generally applicable payroll practices.
B) BONUS. In addition to your Salary, you shall be eligible
during the Term to receive an annual bonus (the "Bonus") based
on the Company's achievement of its financial performance
goals, as determined by the Board or its compensation
committee. Provided that the Company's goals have been met
with respect to any fiscal year, as so determined by the Board
or its compensation committee, the Bonus payable on account of
such year will be not less than $[____]. Any such Bonus earned
hereunder will be paid within 90 days after the end of the
Company's fiscal year. You must be employed at the end of the
applicable fiscal year in order to receive any Bonus to which
you are otherwise entitled pursuant to the terms of this
Section 3(b).
C) EQUITY. You shall be eligible to receive equity awards under
any incentive compensation, stock option or other equity plans
of the Company now in effect or which may be in effect at any
time during the Term, subject to the discretion of the Board
or any committee thereof designated to administer any such
plan.
D) EMPLOYEE BENEFITS. During the Term, the Company will provide
you with the same benefits as it makes generally available
from time to time to the Company's senior executives, as those
benefits are amended or terminated from time to time. Your
participation in the Company's benefit plans will be subject
to the terms of the applicable plan documents and the
Company's
Page 1 of 9
generally applied policies, and the Company, in its sole
discretion, may adopt, modify, interpret, or discontinue such
plans or policies.
4) VACATION. You shall accrue at least four weeks of paid vacation per
year. All terms and conditions of your vacation benefit will be
governed by the Company's policies in effect from time to time.
5) EXPENSES. The Company will reimburse you for reasonable travel and
other business-related expenses you incur for the Company in performing
your duties under this Agreement. You must itemize and substantiate all
requests for reimbursement and submit such reimbursement requests in
accordance with the Company's policies in effect from time to time.
6) NO OTHER EMPLOYMENT. While the Company employs you, you agree that you
will not, directly or indirectly, provide services to any person or
organization for which you receive compensation or otherwise engage in
activities that would conflict or interfere significantly with your
faithful performance of your duties as an employee without the
Company's prior written consent. Notwithstanding the foregoing, you may
(a) make and manage personal passive business investments of your
choice and serve in any director or similar type capacity with up to
three civic, educational or charitable organizations, or any trade
association, without seeking or obtaining the approval of the Company,
provided such activities do not materially interfere or conflict with
the performance of your duties hereunder, and (b) with the approval of
the Company, serve on the boards of directors of other corporations.
7) TERMINATION. Subject to the provisions of this Section and of Section
8, you and the Company agree that it may terminate your employment, or
you may resign, prior to the expiration of the Term, except that, if
you voluntarily resign, you must provide the Company with 30 prior
written notice (unless the Board or your Direct Report has previously
waived such notice in writing or authorized a shorter notice period).
A) FOR CAUSE. The Company may terminate your employment for
"Cause" if you:
i) commit a material breach of (A) your obligations or
agreements under this Agreement or (B) any of the
covenants regarding non-disclosure of confidential
information, assignment of intellectual property
rights, non-competition and/or non-solicitation
(collectively, "Restrictive Covenants") applicable to
you under any Stock Option Agreement or other
agreement entered into (whether before, on or after
the date hereof) between you and the Company;
ii) willfully neglect or fail to perform your material
duties or responsibilities to the Company, such that
the business or reputation of the Company is (or is
threatened to be) materially and adversely affected;
iii) commit an act of embezzlement, theft, fraud or any
other act of dishonesty involving the Company or any
of its customers; or
iv) are convicted of or plead guilty or no contest to a
felony or other crime that involves moral turpitude.
Your termination for Cause will be effective immediately upon the
Company's mailing or written transmission of notice of such
termination. Before terminating your employment for Cause under clauses
(i) or (ii) above, the Company will specify in writing to you the
nature of the breach, act, omission, refusal, or failure that it deems
to constitute Cause and give you 30 days after you receive such notice
to the correct the situation (and thus avoid termination for Cause), if
such situation is capable of being corrected, unless the Company agrees
to extend the time for correction.
B) WITHOUT CAUSE. Subject to the applicable provisions in
Sections 8 below, the Company may terminate your employment
under this Agreement before the end of the Term without Cause.
Page 2 of 9
C) DISABILITY. If you become disabled (as defined below), the
Company may terminate your employment. You are "disabled" if
you are unable, despite whatever reasonable accommodations the
law requires, to render services to the Company for more than
90 consecutive days because of physical or mental disability,
incapacity, or illness. You are also "disabled" if you are
found to be disabled within the meaning of the Company's
long-term disability insurance coverage as then in effect (or
would be so found if you applied for the coverage or
benefits).
D) GOOD REASON. You may resign for "Good Reason" if the Company,
without your consent, (i) materially reduces your Salary, (ii)
materially reduces your title, authority or responsibilities,
(iii) requires you to work in an office which is outside of a
30-mile radius from the location of the Company's principal
executive office as of the Effective Date, or (iv) fails to
obtain the assumption of and agreement to perform this
Agreement by a successor as contemplated in Section 12 hereof.
You must give notice to the Company of your intention to
resign for Good Reason within 30 days after the occurrence of
the event that you assert entitles you to resign for Good
Reason. In that notice, you must state the condition that you
consider provides you with Good Reason and must give the
Company an opportunity to cure the condition within 30 days
after your notice (with the 30 day period shortened to ten
days if the failure relates to non-payment of Salary and such
nonpayment is not cured within five days after you provide
written notice of such non-payment to the Company). If the
Company fails to cure the condition, your resignation will be
effective upon the expiration of the applicable cure period
(unless the Board has previously waived such notice period in
writing or agreed to a shorter notice period or unless
mediation is proceeding in good faith, in which case such
resignation will be come effective 15 days after the end of
such mediation, if not previously cured).
You will not be treated as resigning for Good Reason if the
Company already had given notice of termination for Cause as
of the date of your notice of resignation.
E) DEATH. If you die during the Term, the Term will end as of the
date of your death.
8) CONSEQUENCES OF TERMINATION PRIOR TO THE EXPIRATION OF THE TERM.
A) PAYMENTS ON TERMINATION. If you resign or the Company
terminates your employment with or without Cause or because of
disability or death, the Company will pay you any unpaid
portion of your Salary pro-rated through the date of actual
termination, reimburse any substantiated but unreimbursed
business expenses, pay any accrued and unused vacation time
(to the extent consistent with the Company's policies), and
provide such other benefits as applicable laws or the terms of
the benefits require. Except to the extent the law requires
otherwise or as otherwise provided in this Agreement or in
your option, restricted stock or other equity instrument
agreements, neither you nor your beneficiary or estate will
have any rights or claims under this Agreement or otherwise to
receive severance or any other compensation, or to participate
in any other plan, arrangement, or benefit, after such
termination or resignation.
B) TERMINATION DUE TO DEATH. If your employment is terminated
prior to the expiration of the Term by reason of your death,
the Company shall, in addition to the payments set forth in
Section 8(a), continue to pay your Salary, as then in effect,
for a period of 12 months after the date of termination of
your employment (after which time the Company shall have no
further obligation to pay Salary hereunder). The entitlement
of any beneficiary of yours to benefits under any benefit plan
shall be determined in accordance with applicable law and the
provisions of such plan. In lieu of payments to your estate
following your death, you may designate a beneficiary or
beneficiaries to whom all payments which may be due under this
Agreement will be made in the event of your death. Such
designation shall be made on a form delivered to the Company.
You shall have the right to change or revoke any such
designation from time to time by filing a new
Page 3 of 9
designation or notice of revocation with the Company, and no
notice to any beneficiary nor consent by any beneficiary shall
be required to effect any such change or revocation. If you
shall fail to designate a beneficiary before your death, or if
no designated beneficiary survives you, any payments which may
be due under this Agreement following your death will be paid
to your estate.
C) TERMINATION DUE TO DISABILITY. If your employment is
terminated prior to the end of the Term due to disability, as
determined in accordance with Section 7(c), the Company shall,
in addition to the payments set forth in Section 8(a),
continue to pay your Salary, as then in effect, for a period
of 12 months after the date of termination of your employment
(after which time the Company shall have no further obligation
to pay Salary hereunder).
D) TERMINATION BY THE COMPANY WITHOUT CAUSE OR BY YOU WITH GOOD
REASON. Anything contained herein to the contrary
notwithstanding, if before the end of the Term the Company
terminates your employment without Cause (other than as a
result of your death or disability) or you resign for Good
Reason, you shall be entitled to the following, in addition to
the payments set forth in Section 8(a):
i) the Company shall continue to pay your Salary, as
then in effect, for a period of six months after the
date of termination of your employment (the
"Separation Period") (after which time the Company
shall have no further obligation to pay Salary
hereunder);
ii) any options, restricted stock or other equity
instruments you have received or do receive from the
Company shall continue to vest in accordance with the
vesting schedule set forth therein and shall remain
exercisable throughout the Separation Period, as
though you were to continue to be employed by the
Company during the Separation Period, notwithstanding
any provision to the contrary in any agreement
evidencing an option, restricted stock or other
equity grant;
iii) the Company shall provide you and your beneficiaries,
throughout the Separation Period and at the Company's
expense, with continued coverage under the group
medical care, disability and life insurance benefit
plans or arrangements in which you are participating
at the time of termination; provided, however, that
if such coverage is precluded by the terms of the
Company's benefit or insurance policies, the Company
shall make a cash payment to you in an amount
sufficient to allow you to obtain comparable benefits
for such period; and provided, further, that the
Company's obligation to provide such coverage shall
be terminated if you obtain equivalent substitute
coverage from another employer at any time during the
Separation Period; and
iv) if your employment shall have been terminated
hereunder within the 12 full calendar month period
following the effective date of a Change in Control
(as defined below), then a portion of any options,
restricted stock or other equity instruments you have
received or do receive from the Company (each, an
"Equity Award") will become fully exercisable upon
such termination of employment, notwithstanding any
provision to the contrary in any agreement evidencing
an Equity Award. The portion of each such Equity
Award that will become fully exercisable under such
circumstances shall be equal to the portion, if any,
of such Equity Award that would otherwise become
exercisable during the one year period following the
date of termination of employment, provided that in
any event at least 50% of the total number of shares
(or equity equivalents) originally subject to such
Equity Award (less any shares or equity equivalents
previously exercised) shall be exercisable upon such
termination of employment. A "Change in Control"
means and shall be deemed to have occurred on the
earliest of the following dates:
Page 4 of 9
(A) the date on which any "person" or "group" (as such terms are
used in Sections 13(d) and 14(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act")), other than an
Excluded Owner, obtains "beneficial ownership" (as defined in
Rule 13d-3 of the Exchange Act) or a pecuniary interest in 50%
or more of the combined voting power of the Company's then
outstanding securities ("Voting Stock");
(B) the consummation by the Company of a merger, consolidation,
reorganization or similar transaction, other than a
transaction: (A) in which substantially all of the holders of
the Company's Voting Stock immediately prior to the
consummation of the transaction hold or receive directly or
indirectly 50% or more of the voting stock of the resulting
entity or a parent company thereof, in substantially the same
proportions as their ownership of the Company immediately
prior to the transaction; or (B) in which the holders of the
Company's capital stock immediately before such transaction
will, immediately after such transaction, hold as a group on a
fully diluted basis the ability to elect at least a majority
of the directors of the surviving corporation (or a parent
company);
(C) there is consummated a sale, lease, exclusive license or other
disposition of all or substantially all of the consolidated
assets of the Company and its subsidiaries (as determined by
the Board), other than a sale, lease, license or other
disposition of all or substantially all of the consolidated
assets of the Company and its subsidiaries to (A) an Excluded
Owner or (B) an entity, 50% or more of the combined voting
power of the voting securities of which are owned by
shareholders of the Company in substantially the same
proportions as their ownership of the Company immediately
prior to such sale, lease, license or other disposition; or
(D) individuals who, on the Effective Date, are members of the
Board (the "Incumbent Board") cease for any reason to
constitute at least a majority of the members of the Board;
provided, however, that if the appointment or election (or
nomination for election) of any new member of the Board was
approved or recommended by a majority vote of the members of
the Incumbent Board then still in office, such new member
shall, for purposes hereof, be considered as a member of the
Incumbent Board.
An "Excluded Owner" consists of the Company, any entity owned,
directly or indirectly, at least 50% by the Company, any
Company benefit plan, and any underwriter temporarily holding
securities for an offering of such securities.
E) TERMINATION BY YOU FOLLOWING A CHANGE IN CONTROL.
Notwithstanding anything to the contrary contained herein, you
may resign, with or without Good Reason, effective at any time
during the one year period commencing on the six month
anniversary of the effective date of a Change in Control, upon
not less than 30 days' prior written notice to the Company
(which may be given prior to such six month anniversary date).
Upon any such resignation, you shall be entitled to the
following, in addition to the payments set forth in Section
8(a):
i) the Company shall continue to pay your Salary, as
then in effect, during the Separation Period; and
ii) the Company shall provide you and your beneficiaries,
throughout the Separation Period, with continued
coverage under the group medical care, disability and
life insurance benefit plans or arrangements in which
you are participating at the time of termination;
provided, however, that if such coverage is precluded
by the terms of the Company's benefit or insurance
policies, the Company shall make a cash payment to
you in an amount sufficient to allow you to obtain
comparable benefits for such period; and provided,
further, that the Company's obligation to provide
such coverage shall be terminated if you obtain
equivalent substitute coverage from another employer
at any time during such six month period.
Page 5 of 9
F) CONDITIONS TO SEPARATION OF EMPLOYMENT BENEFITS.
Notwithstanding anything to the contrary contained herein, it
shall be a condition to the Company's continued obligations
under Sections 8(c), (d) and (e) hereof that you comply with,
and you agree to return any payments previously made to you
under Sections 8(c), (d) or (e) hereof if you fail to comply
with, any Restrictive Covenants applicable to you. You are not
required to mitigate amounts payable under this Section 8(f)
by seeking other employment or otherwise, nor must you return
to the Company amounts earned under subsequent employment.
9) SECTION 409A.
A) To the extent that you would otherwise be entitled to any
payment (whether pursuant to this Agreement or otherwise)
during the six months beginning on termination of employment
that would be subject to the additional tax imposed under
Section 409A of the Code ("Section 409A"), (i) the payment
will not be made to you and instead will be made to a trust in
compliance with Revenue Procedure 92-64 (the "Rabbi Trust")
and (ii) the payment, together with earnings on it, will be
paid to you on the earlier of the six-month anniversary of
your Termination Date or your death or disability (within the
meaning of Section 409A). Similarly, to the extent you would
otherwise be entitled to any benefit (other than a payment)
during the six months beginning on your termination date that
would be subject to the Section 409A additional tax, the
benefit will be delayed and will begin being provided
(together, if applicable, with an adjustment to compensate you
for the delay) on the earlier of the six-month anniversary of
your termination date or your death or disability (within the
meaning of Section 409A).
B) The Company will not take any action that would expose any
payment or benefit to you to the additional tax of Section
409A unless (i) the Company is obligated to take the action
under an agreement, plan or arrangement to which you are a
party, (ii) you request the action, (iii) the Company advises
you in writing that the action may result in the imposition of
the additional tax and (iv) you subsequently request the
action in a writing that acknowledges that you will be
responsible for any effect of the action under Section 409A.
The Company will hold you harmless for any action it may take
in violation of this Section, including any attorney's fees
you may incur in enforcing his rights.
C) It is the Company's intention that the benefits and rights to
which you could become entitled in connection with the
termination of employment comply with Section 409A. If you or
the Company believe, at any time, that any of such benefit or
right does not comply, it will promptly advise the other and
will negotiate reasonably and in good faith to amend the terms
of such arrangement such that it complies with Section 409A
(with the most limited possible economic effect on you and on
the Company).
10) EXPIRATION. The expiration of this Agreement upon the end of the Term
following the delivery of a Notice of Non-Renewal does not constitute
termination with Cause nor provide you with Good Reason and does not
entitle you to any benefits under Section 8(d).
11) COOPERATION AFTER TERMINATION OF EMPLOYMENT. Following the termination
of your employment with the Company for any reason, you shall fully
cooperate with the Company in all matters relating to the winding up of
your pending work on behalf of the Company including, but not limited
to, any litigation in which you are involved, and the orderly transfer
of any such pending work to other employees of the Company as may be
designated by the Company. The Company shall reimburse you for any
out-of-pocket expenses you incur in performing any work on behalf of
the Company following the termination of your employment.
Page 6 of 9
12) RESTRICTIVE COVENANTS. The Company and you acknowledge that the
Restrictive Covenants applicable to you pursuant to any agreement
entered into between you and the Company (a) shall remain in full force
and effect, notwithstanding the execution and delivery of this
Agreement by the parties, and (b) are intended by the parties to
survive, and do survive, the expiration or termination of this
Agreement and your employment with the Company.
13) ASSIGNMENT. The Company shall assign this Agreement and its rights and
obligations hereunder in whole, but not in part, to any corporation or
other entity with or into which the Company may hereafter merge or
consolidate or to which the Company may transfer all or substantially
all of its assets, if in any such case such corporation or other entity
shall by operation of law or expressly in writing assume all
obligations of the Company hereunder as fully as if it had originally
been made a party hereto, but may not otherwise may not assign or
otherwise transfer this Agreement or any or all of its rights, duties,
obligations, or interests hereunder. You may not assign or otherwise
transfer this Agreement or any or all of your rights, duties,
obligations, or interests hereunder.
14) SEVERABILITY. If the final determination of an arbitrator or a court of
competent jurisdiction declares, after the expiration of the time
within which judicial review (if permitted) of such determination may
be perfected, that any term or provision of this Agreement is invalid
or unenforceable, the remaining terms and provisions will be
unimpaired, and the invalid or unenforceable term or provision will 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 or provision.
15) AMENDMENT; WAIVER. Neither you nor the Company may modify, amend or
waive the terms of this Agreement other than by a written instrument
signed by you and by another executive officer of the Company duly
authorized by the Board. Either party's waiver of the other party's
compliance with any provision of this Agreement is not a waiver of any
other provision of this Agreement or of any subsequent breach by such
party of a provision of this Agreement.
16) WITHHOLDING. All payments required to be made by the Company to you
under this Agreement shall be subject to the withholding of such
amounts, if any, relating to tax and other payroll deductions as the
Company may reasonably determine should be withheld for payment to the
applicable taxing authorities pursuant to any applicable law or
regulation.
17) GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Maryland exclusive of its choice of law provisions.
18) SURVIVAL. Notwithstanding anything to the contrary contained in this
Agreement, the provisions of Sections 7 through 20 of this Agreement
shall survive the termination or expiration, for any reason, of this
Agreement.
19) NOTICES. Notices and other communications under this Agreement must be
given in writing by personal delivery, by certified mail, return
receipt requested, or by overnight delivery. You should send or deliver
your notices to the Company's corporate headquarters, to the attention
of the Company's Secretary. The Company will send or deliver any
notices given to you at your address as reflected in the Company's
personnel records. You and the Company may change the notice address by
providing notice of such change. You and the Company agree that notice
is received on the date it is personally delivered, the date it is
received by certified mail, or the date of guaranteed delivery by
overnight service, at the applicable address set forth above.
20) ENTIRE AGREEMENT. This Agreement supersedes any prior oral or written
agreements, negotiations, commitments, and writings between you and the
Company with respect to the subject matter hereof. All such other
agreements, negotiations, commitments, and writings will have no
further force or effect; and the parties to any such other negotiation,
commitment, agreement, or writing will have no further rights or
obligations thereunder.
Page 7 of 9
[SIGNATURE PAGE FOLLOWS]
Page 8 of 9
If you accept the terms of this Agreement please sign in the space indicated
below. You are encouraged to consult with any advisors you choose regarding this
Agreement.
VOCUS, INC.
By:
-----------------------------
Name:
Title:
I accept and agree to the terms of employment set forth in this Agreement:
------------------------
Signature
------------------------
Printed Name
------------------------
Date
Page 9 of 9
SCHEDULE OF MATERIAL DIFFERENCES TO EXHIBIT 10.26
INITIAL ANNUAL TARGET ANNUAL
NAME OF EMPLOYEE EMPLOYEE'S TITLE SALARY BONUS
-------------------- ----------------------- -------------- -------------
Xxxxxxx Xxxxxxxx Vice President, Sales $ 175,000+ $ 175,000
Xxxxxx Xxxxxxxxx Vice President, Account $ 165,000 $ 165,000
Sales
+Salary to be effect January 1, 2006.
