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EMPLOYMENT AGREEMENT
By and Between
CARIBINER INTERNATIONAL, INC.
and
XXXXXXX VENT
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As of September 22, 1997
TABLE OF CONTENTS
Page
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1. Employment ............................................ 1
2. Duties and Responsibilities of Employee ............... 1
3. Exclusivity of Service ................................ 2
4. Compensation; Bonus ................................... 2
5. Benefits .............................................. 2
6. Term of Employment .................................... 3
7. Confidentiality; Inventions; Product Development, Etc. 3
8. Non-Competition; Non-Solicitation ..................... 5
9. Termination ........................................... 6
(a) Cause ............................................ 6
(b) Incapacity ....................................... 7
(c) Death ............................................ 7
10. Violation of Other Agreements ......................... 7
11. Specific Performance; Damages ......................... 7
12. Notices ............................................... 8
13. Waivers ............................................... 8
14. Preservation of Intent ................................ 9
15. Entire Agreement ...................................... 9
16. Inurement; Assignment ................................. 9
17. Amendment ............................................. 9
18. Headings .............................................. 9
19. Counterparts .......................................... 9
20. Governing Law ......................................... 10
21. Arbitration ........................................... 10
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EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement") dated as of September 22, 1997, by
and between CARIBINER INTERNATIONAL, INC., a Delaware corporation having an
office at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Employer"), and
XXXXXXX VENT, an individual residing at 000 Xxxxx Xxxxxxxxx, Xxxxx 000-000,
Xxxxxxx Xxxxxxx, Xxxxxx 00000 ("Employee").
W I T N E S S E T H:
WHEREAS, Employer desires to engage Employee as an employee and Employee
desires to provide his services to Employer in connection with Employer's
business; and
WHEREAS, both parties desire to clarify and specify the rights and
obligations which each have with respect to the other in connection with
Employee's employment.
NOW, THEREFORE, in consideration of the agreements and covenants herein set
forth, the parties hereby agree as follows:
1. Employment
Employer hereby employs Employee as its President and Chief Operating
Officer and Employee hereby accepts such employment and agrees to render his
services as an employee of Employer, for the term of this Agreement (as set
forth in Section 6 hereof), all subject to and on the terms and conditions
herein set forth.
2. Duties and Responsibilities of Employee
Employee shall be employed as Employer's President and Chief Operating
Officer, subject to the other provisions of this Section 2. In the performance
of his duties, Employee shall report to Employer's Chief Executive Officer or,
in the discretion of Employer's Board of Directors (the "Board"), the Chairman.
Employee shall use his best efforts to maintain and enhance the business and
reputation of Employer. Employee's duties and responsibilities shall be
designated to Employee by the Board, its Chairman or Employer's Chief Executive
Officer. Upon Employer's request, Employee shall also perform similar services
in an identical capacity for any subsidiary or division of Employer (or a
subsidiary thereof) designated by Employer. Employee shall be available to
travel as the reasonable needs of Employer shall require. Employee shall be
based, at Employer's option, in Employer's offices located in either Xxxxxxx,
Xxxxxxx (xx xxx Xxxxxxx xxxxxxxxxxxx xxxx) or Xxx Xxxx, Xxx Xxxx (xx xxx Xxx
Xxxx Xxxx xxxxxxxxxxxx xxxx), which offices Employee understands may be
relocated by Employer within a fifty (50) mile radius of their current
locations.
3. Exclusivity of Service
Employee agrees to devote all of his business time, efforts and attention
to the business and affairs of Employer on an exclusive basis, and not to engage
in any other business activities for any person or entity, other than personal
investment activities, provided that such activities do not materially affect
the performance of Employee's duties hereunder.
4. Compensation; Bonus
(a) In consideration for his services to be performed under this Agreement
and as compensation therefor, Employee shall receive, in addition to all other
benefits provided in this Agreement, a base salary (the "Base Salary") at the
annual rate of three hundred twenty five thousand ($325,000) Dollars. All
payments of Base Salary shall be payable in bi-weekly installments or otherwise
in accordance with Employer's policies.
(b) In addition to the Base Salary, Employee shall be entitled to an annual
bonus (the "Bonus"), payable on approximately December 15 of each year
(commencing December 15, 1998), pursuant to a bonus compensation plan to be
formulated by Employer for Employee and its other senior executives. Such bonus
plan shall be tailored to Employee's particular skills and Employer's goals,
provided that any such bonus plan formulated for Employee shall be within
Employer's sole and absolute discretion. Notwithstanding anything to the
contrary contained herein, Employee's bonus compensation for Employer's fiscal
year ending September 30, 1998 (payable on approximately December 15, 1998)
shall not be less than $75,000.
5. Benefits
In addition to the Base Salary and Bonus provided for in Section 4 hereof,
Employee shall be entitled to the following benefits during and in respect of
the Term (as defined below):
(a) Employer shall provide Employee with the hospitalization, medical and
dental insurance coverage and other benefits (including long term disability and
life insurance) on the same basis as provided to the majority of the other
senior executive employees of Employer, in accordance with Employer's practices.
Employee shall be entitled to participate in Employer's 401(K) plan and other
similar plans adopted by Employer for similar employees.
(b) Employee shall be entitled to four (4) weeks paid vacation to be taken
by Employee at times mutually and reasonably agreed upon by Employer and
Employee in addition to all other holidays established as part of Employer's
standard practices.
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No payment shall be made to Employee for unused vacation days nor may such days
be carried over to future years.
(c) Employee shall be entitled to reimbursement for all reasonable travel,
entertainment and other reasonable expenses incurred in connection with
Employer's business, provided that such expenses are adequately documented and
vouchered in accordance with Employer's policies.
(d) Employee shall be entitled to an automobile allowance in the amount of
$500 per month, payable in equal installments during each payroll period, to
defray all costs incurred by Employee in connection with Employee's use of his
automobile in connection with the business of Employer (except for those which
Employee is entitled to reimbursement pursuant to Section 5 (c) hereof).
(e) Employer shall grant to Employee options to purchase sixty thousand
(60,000) shares of common stock (the "Common Stock") of Employer, par value
$0.01 per share, pursuant to Employer's 1996 Stock Option Plan (the "Plan") and
a Stock Option Agreement to be entered into by Employer and Employee in the form
adopted pursuant to the Plan promptly following the mutual execution and
delivery of this Agreement. All options so granted shall, subject to the terms
and conditions of the Plan, be exercisable at the price per share of the Common
Stock on the date of the issuance of such options.
6. Term of Employment
The term (the "Term") of employment shall be from the date hereof for a
period of two (2) years, unless terminated prior thereto in accordance with
Section 9 hereof. Employer agrees that no sooner than six (6) months prior to
the end of the Term and any renewal term (a "Renewal Term"), Employer will
confirm to Employee in writing, following Employee's written request therefor (a
"Renewal Indication"), whether Employer intends to extend the term of this
Agreement upon terms no less favorable than those contained herein. If such
Renewal Indication shall state that Employer intends to renew this Agreement at
the end of the Term, or a Renewal Term, as the case may be, subject to Section 9
hereof, this Agreement shall be extended for an additional two (2) year term
upon terms no less favorable than those contained herein, provided, however,
that it is contemplated that the parties will negotiate in good faith the terms
of such extended employment.
7. Confidentiality; Inventions; Product Development, Etc.
(a) Employee agrees and covenants that, at any time during employment by
Employer (which, for purposes of Sections 7 and 8 hereof shall include
Employer's subsidiaries and affiliates) or
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thereafter, he will not (without first obtaining the written permission of
Employer) (i) at any time during employment by Employer and for a period of
three (3) years thereafter, divulge to any person or entity, nor use (either
himself or in connection with any business) any "Confidential Information" (as
hereinafter defined in Section 7(c) hereof) and (ii) at any time during
employment by Employer and thereafter, divulge to any person or entity, nor use
(either himself or in connection with any business) any "Trade Secrets" (as
hereinafter defined in Section 7(c) hereof) to which he may have had access or
which had been revealed to him during the course of his employment unless such
disclosure is pursuant to a court order, disclosure in litigation involving the
Employer or in any reports or applications required by law to be filed with any
governmental agency.
(b) Employee hereby grants to Employer or its nominee all rights of every
kind whatsoever, exclusively and perpetually, in and to all services performed,
products created and product ideas conceived by Employee for Employer or its
nominee, and hereby agrees, upon Employer's request therefor, to assign and
transfer to Employer or its nominee, any and all inventions, Trade Secrets,
product ideas, improvements, processes, Confidential Information and "know how"
relating to the business or products of Employer or any subsidiary or division
thereof, including any thereof which Employee may learn, possess or acquire
during Employee's employment by Employer, and agrees that all such things and
such knowledge are, and will be, the sole and exclusive property of Employer or
its nominee, and are known or held by Employee only for the benefit of Employer
or its nominee. Any patent, trademark, servicemark or copyright applications and
patents, trademarks, servicemarks or copyrights developed, obtained or conceived
by Employee while employed or engaged by Employer which relate to the business
or product development activities of Employer or its nominee, as well as all
physical embodiments of Confidential Information, shall be and remain the sole
exclusive property of Employer, or its nominee. At Employer's request, Employee
will execute any and all applications, assignments or other instruments which
Employer or its nominee shall deem necessary to apply for and obtain Letters
Patent of the United States or any foreign country or to protect otherwise
Employer's interest therein.
(c) As used in this Agreement, the term "Confidential Information" shall
mean and include all information and data in respect of Employer's operations,
financial condition, products, customers and business (including, without
limitation, artwork, photographs, specifications, facsimiles, samples, business,
marketing or promotional plans, creative written material and information
relating to characters, concepts, names, trademarks and copyrights) which may be
communicated to Employee or to which Employee may have access in the course of
Employee's employment
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by Employer. Notwithstanding the foregoing, the term "Confidential Information"
shall not include information which:
(i) is, at the time of the disclosure, a part of the public domain through
no act or omission by Employee;
(ii) was otherwise in Employee's lawful possession prior to the disclosure;
or
(iii) is hereafter lawfully disclosed to Employee by a third party who or
which did not acquire the information under an obligation of
confidentiality to or through Employer.
As used in this Agreement, the term "Trade Secrets" shall mean and include
information, without regard to form, including, but not limited to, technical or
non-technical data, a formula, a pattern, a compilation, a program, a device, a
method, a technique, a drawing, a process, financial data, financial plans,
product plans, or a list of actual or potential customers or suppliers which is
not commonly known by or available to the public and which information (i)
derives economic value, actual or potential, from not being known to, and not
being readily ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use; and (ii) is the subject of efforts
that are reasonable under the circumstances to maintain its secrecy.
Any combination of known information shall be within any of the foregoing
exclusions only if the combination as such is within such exclusions.
Nothing in this Section 7 shall limit any protection, definition or remedy
provided to Employer under any law, statute or legal principle relating to
Confidential Information or Trade Secrets.
(d) Employee agrees that at the time of leaving the employ of Employer he
will deliver to Employer and not keep or deliver to anyone else any and all
notes, notebooks, drawings, memoranda, documents, and in general, any and all
material relating to the business of Employer (except Employee's personal files
and records) or relating to any employee, officer, director, agent or
representative of Employer.
8. Non-Competition; Non-Solicitation
(a) Employee hereby agrees and covenants that commencing as of the date
hereof and for a period of two (2) years following the termination of his
employment with Employer (the "Limited Period") he will not directly or
indirectly engage in or become
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interested (whether as an owner, principal, agent, stockholder, member, partner,
trustee, venturer, lender or other investor, director, officer, employee,
consultant or through the agency of any corporation, limited liability company,
partnership, association or agent or otherwise) in any business or enterprise
that shall, at the time, be in whole or in substantial part competitive with any
material part of the business conducted by Employer during the period of
Employee's employment with Employer (except that ownership of not more than 1%
of the outstanding securities of any class of any entity that are listed on a
national securities exchange or traded in the over-the-counter market shall not
be considered a breach of this Section 8(a)).
(b) Employee agrees and covenants that for the Limited Period he will not
(without first obtaining the written permission of Employer) directly or
indirectly participate in the solicitation of any business of any type conducted
by Employer during the period of Employee's employment with Employer from any
person or entity which was a client or customer of Employer during the period of
Employee's employment with Employer, or was a prospective customer of Employer
from which Employee (or employees under Employee's supervision) solicited
business or for which a proposal for submission was prepared during the period
of Employee's employment with Employer.
(c) Employee agrees and covenants that for the Limited Period he will not
(without first obtaining the written permission of Employer) directly or
indirectly, recruit for employment, or induce or seek to cause such person to
terminate his or his employment with Employer, any person who then is an
employee of Employer.
9. Termination
(a) Cause. Notwithstanding the terms of this Agreement, Employer may
discharge Employee and terminate this Agreement in the event that (i) Employee
shall wilfully fail materially to perform his duties hereunder with reasonable
diligence or shall violate any covenant of his herein contained, (ii) Employee
shall engage in an act of dishonesty in connection with his duties hereunder or
theft, (iii) Employee shall unreasonably refuse to carry out the lawful order of
Employer commensurate with Employee's duties to be performed hereunder or (iv)
Employee shall be charged with a felony involving moral turpitude (which shall
include any felony relating to drugs) or shall be convicted of, or plead nolo
contendere (or make an equivalent plea) in respect of, any governmental
indictment, complaint or other formal allegation. Notwithstanding the foregoing
to the contrary, prior to discharging Employee pursuant to clauses (i) or (iii)
of the immediately preceding sentence, Employer shall give Employee ten (10)
days' prior written notice of any breach or failure and a reasonable opportunity
to cure any such breach
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or failure, or cease violating any covenant contained herein, to the extent
curable or ceasable; provided, however, that no notice shall be required to be
given in the event such breach, failure or violation is not curable or ceasable.
In the event Employee is discharged pursuant to this Section 9, Employee's Base
Salary and bonus under Section 4 hereof and all benefits under Section 5 hereof
shall terminate immediately upon such discharge (subject to applicable law such
as COBRA), and Employer shall have no further obligation to Employee except the
payment to and reimbursement to Employee for any monies due to Employee which
right to payment or reimbursement accrued prior to such discharge. In the event
Employee is terminated other than pursuant to this Section 9, Employee's Base
Salary and Bonus under Section 4 hereof and all benefits under Section 5 hereof
shall, notwithstanding such termination, be paid pursuant to the terms of this
Agreement.
(b) Incapacity. Should Employee, in the reasonable judgment of a physician
chosen by the Board, become incapacitated to the extent that he is unable to
perform his material duties pursuant to this Agreement for a period of two (2)
consecutive months by reason of illness, disability, or other incapacity,
Employer may terminate this Agreement upon one (1) month's notice after said two
(2) month period.
(c) Death. This Agreement shall terminate immediately upon the death of
Employee, in which case Employee's legal representatives shall be entitled to
receive promptly a payment equal to one (1) month's Base Salary.
10. Violation of Other Agreements
Employee represents and warrants to Employer that he is legally able to
enter into this Agreement and accept employment with Employer; that Employee is
not prohibited by the terms of any agreement, understanding or policy from
entering into this Agreement; and the terms hereof will not and do not violate
or contravene the terms of any agreement, understanding or policy to which
Employee is or may be a party, or by which Employee may be bound. Employee
agrees that, as it is a material inducement to Employer that Employee make the
foregoing representations and warranties and that they be true in all respects,
Employee shall forever indemnify and hold Employer harmless from and against all
liability, costs or expenses (including attorney's fees and disbursements) on
account of the foregoing representations being untrue.
11. Specific Performance; Damages
In the event of a breach or threatened breach of the provisions of Sections
7 or 8 hereof, Employee agrees that the injury which would be suffered by
Employer would be of a
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character which could not be fully compensated for solely by a recovery of
monetary damages. Accordingly, Employee agrees that in the event of a breach or
threatened breach of Section 7 or 8 hereof, in addition to and not in lieu of
any damages sustained by Employer and any other remedies which Employer may
pursue hereunder or under any applicable law, Employer shall have the right to
equitable relief, including issuance of a temporary or permanent injunction, by
any court of competent jurisdiction against the commission or continuance of any
such breach or threatened breach, without the necessity of proving any actual
damages or posting of any bond or other surety therefor. In addition to, and not
in limitation of the foregoing, Employee understands and confirms that, in the
event of a breach or threatened breach of Section 7 or 8 hereof, Employee may be
held financially liable to Employer for any loss suffered by Employer as a
result.
12. Notices.
Any and all notices, demands or requests required or permitted to be given
under this Agreement shall be given in writing and sent, by registered or
certified U.S. mail, return receipt requested, by hand, or by overnight courier,
addressed to the parties hereto at their addresses set forth above or such other
addresses as they may from time-to-time designate by written notice, given in
accordance with the terms of this Section, together with copies thereof as
follows:
In the case of Employer, with a copy to:
Xxxxxxxx Xxxx & Brandeis, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Notice given as provided in this Section shall be deemed effective: (i) on the
date hand delivered, (ii) on the first business day following the sending
thereof by overnight courier, and (iii) on the seventh calendar day (or, if it
is not a business day, then the next succeeding business day thereafter) after
the depositing thereof into the exclusive custody of the U.S. Postal Service.
13. Waivers
No waiver by any party of any default with respect to any provision,
condition or requirement hereof shall be deemed to be a waiver of any other
provision, condition or requirement hereof; nor shall any delay or omission of
any party to exercise any right hereunder in any manner impair the exercise of
any such right accruing to it thereafter.
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14. Preservation of Intent
Should any provision of this Agreement be determined by a court having
jurisdiction in the premises to be illegal or in conflict with any laws of any
state or jurisdiction or otherwise unenforceable, Employer and Employee agree
that such provision shall be modified to the extent legally possible so that the
intent of this Agreement may be legally carried out.
15. Entire Agreement
This Agreement sets forth the entire and only agreement or understanding
between the parties relating to the subject matter hereof and supersedes and
cancels all previous agreements, negotiations, letters of intent,
correspondence, commitments and representations in respect thereof among them,
and no party shall be bound by any conditions, definitions, warranties or
representations with respect to the subject matter of this Agreement except as
provided in this Agreement.
16. Inurement; Assignment
The rights and obligations of Employer under this Agreement shall inure to
the benefit of and shall be binding upon any successor of Employer or to the
business of Employer, subject to the provisions hereof. Employer may assign this
Agreement to any person, firm or corporation controlling, controlled by, or
under common control with Employer. Neither this Agreement nor any rights or
obligations of Employee hereunder shall be transferable or assignable by
Employee.
17. Amendment
This Agreement may not be amended in any respect except by an instrument in
writing signed by the parties hereto.
18. Headings
The headings in this Agreement are solely for convenience of reference and
shall be given no effect in the construction or interpretation of this
Agreement.
19. Counterparts
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, but all of which when taken together shall
constitute one and the same instrument.
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20. Governing Law
This Agreement shall be governed by, construed and enforced in accordance
with the internal laws of the State of New York, without giving reference to
principles of conflict of laws.
21. Arbitration
Any dispute arising under this Agreement shall be resolved by arbitration
in the manner provided by this Section 21. Such disputes shall be resolved by
binding arbitration commenced and conducted in accordance with the then
applicable rules of commercial arbitration of the American Arbitration
Association in an arbitration commenced and held before a single arbitrator.
Judgment upon the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. The location of the arbitration shall be in a
location mutually agreed upon by the parties. Notwithstanding the foregoing to
the contrary, Employer shall be entitled to seek equitable relief from a court
of competent jurisdiction in the event of a breach or threatened breach of the
provisions of Sections 7 or 8 hereof.
Section 21 Agreed to:
/s/ Xxxxxxx X. Vent /s/ Xxxxxxx X. Xxxxxxx
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Employee Employer
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
EMPLOYEE:
/s/ Xxxxxxx X. Vent
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Xxxxxxx Vent
EMPLOYER:
CARIBINER INTERNATIONAL, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Chairman and Chief
Executive Officer
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