Exhibit 10.5
June 26, 2000
Xx. Xxxxxxx Xxxxxx
[ADDRESS]
Dear Xxxx:
This letter confirms our recent conversations concerning your relinquishing your
duties as Senior Vice President of EarthWeb Inc., and sets forth the agreement
that has been reached between EarthWeb Inc., including its subsidiaries,
divisions, affiliates, predecessors, successors and assigns and its past and
present officers, directors, shareholders, counsel, employees, agents,
administrators, representatives, insurers or fiduciaries in their individual
and/or representative capacities (collectively referred to as the "Company") and
you regarding your separation from the Company.
1. (a) For the period from June 30, 2000 through December 31, 2000 (the
"Six-Month Period"), you will continue to provide such services as are
necessary and appropriate to effect a smooth transition of your
responsibilities. You will continue to advise the Company, provide
transitional services to the Company and be available to the Company
on an on-call basis during reasonable business hours. Reasonable
business travel to New York or Boston may be required during this
period, with any travel to other locations to be mutually agreed upon
by you and the Company. The Company will not interfere with your
efforts to obtain additional employment at any time after June 30,
2000 provided such employment would otherwise be in compliance with
the terms outlined herein.
(b) Upon August 1, 2000, you will submit a written turn-over report
detailing the status of any projects then in progress or planned in
which you are involved. You will also work with the Company to put
together a plan for transitioning your responsibilities.
(c) For the period from January 1, 2001 through March 31, 2001 you will be
available for nine hours per month to provide transition-related
services to the Company.
(d) Upon termination of your employment on March 31, 2001, you will return
all equipment, materials and records of the Company which are then in
your possession and repay any advances from the Company that may be
then outstanding. Any expenses for which you are entitled to be
reimbursed under the Company's expense reimbursement policy will be
reimbursed in accordance with the Company's standard policies and
procedures.
2. Provided that you abide by the terms of this Agreement and in consideration
for the covenants and agreements herein contained, the Company will:
i. pay you your current base salary for the Six-Month period through
December 31, 2000 in twelve (12) semi-monthly installments, less
applicable withholding deductions;
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ii. pay you $26,875, as your incentive bonus for the first half of 2000,
when and as due in accordance with the Company's standard policies and
procedures;
iii. pay you a lump sum on March 31, 2001 of $ 53,750, less applicable
withholding deductions in accordance with the Company's standard pay
practices (all Company dental, vision, health and life insurance and
401K benefits will be available to you through March 31, 2001);
iv. pay you a lump-sum bonus on June 30, 2001 of $ 53,750, less applicable
withholding deductions in accordance with the Company's standard pay
practices;
v. during the period through March 31, 2001, you would continue to vest
in the following previously granted options: Grant No. 96-22 NQ
(9/1/97), Grant No. 96-47 NQ (11/4/97), and Grant No. 96-57 ISO
(1/30/98). In addition, 1,173 PSOs previously granted to you pursuant
to Grant No. 96-57PA NQ (11/30/98) would vest upon the earlier to
occur of the successful launch of the ATG Dynamo Project as determined
for the rest of EarthWeb's team working on this Project (currently
anticipated to be July 25, 2000) or March 31, 2001; and
vi. grant you 7,500 PSOs that would be granted in the next company-wide
option grant and would vest upon the delivery of the transition report
referenced above and satisfaction of certain mutually agreed-upon
objective transition-related performance goals based on action items
identified by you in the report for completion by December 31, 2000;
provided that the foregoing is, in all events, conditioned upon your
full compliance with the terms set forth in this agreement.
vii. grant you access to a Company cell phone, a Company notebook computer,
and access to the Company's email and voicemail systems through March
31, 2001.
3. With respect to your options, you would agree not to sell more than 10,000
shares in any one day.
4. For a period of three years from the date hereof, you may direct reasonable
inquiries for references to either Xxxx Xxxxxx or Xxxxx Xxxxx, who will
indicate that many of your responsibilities with the Company were in many
respects the functional equivalent of chief operating officers of other
companies and explain that titles used at EarthWeb were different than at
other companies.
5. As a key senior executive of the Company, you have been intimately involved
in the management of the business of the Company and in planning and
implementing its business strategies. In the course of your long employment
with the Company, you have developed special skills, knowledge and
abilities in the Internet field which are of a uniquely personal nature.
You have also acquired detailed knowledge of the internal operations of the
Company and its business and possess highly confidential information
concerning both the U.S. and non-U.S. business activities of the Company.
In addition, you have been afforded the opportunity to develop special
relationships of confidence and trust with the customers, suppliers,
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consultants, employees, officers and directors of the Company.
(a) The parties acknowledge and agree that the Company would be unfairly
and irreparably damaged if you were to take any of such skills,
knowledge, information or relationships, which you have acquired and
developed during the course of your employment with the Company, and
use them to the detriment of the Company, and therefore the provisions
of this paragraph 5(a) are reasonable, appropriate and necessary for
the protection of the Company's properties, investments, business
relationships, economic advantages and good will. Accordingly, you
hereby agree that:
i. Through December 31, 2000, and for a 1-year period thereafter,
you will not, without the Company's prior written consent,
directly or indirectly hold an ownership interest in, provide
financing for, control, manage or operate, or participate in the
ownership, control, management or operation of, or render
services in the capacity of any employee, freelancer, consultant,
agent, independent sales representative or a similar capacity to
or for the benefit of any publication, product or service which
is competitive with (1) any product or service of the Company or
(2) any product or service which the Company has a bona fide plan
to launch within the next 12 months, which plan or intention you
have actual knowledge of before engaging in any of the above
activities. Notwithstanding anything to the contrary contained
herein, you shall not be deemed to have breached the provisions
hereof solely by reason of your ownership of an equity interest
of less than one-half of one percent (0.5%) in the securities of
a publicly traded competitive business or an interest in a mutual
or other investment fund which owns an interest in a competitive
business, provided that you have no influence or control over
such fund's investment decisions.
ii. Through December 31, 2000, and for a 1-year period thereafter,
you will not, without the Company's prior written consent, on
your own behalf or on behalf of any other person or entity, (1)
solicit the service of or employ any employee of the Company for
your own benefit or the benefit of any person or entity other
than the Company; (2) induce or help to induce any such employee
to leave employment with the Company for any reason; or (3)
employ or cause any other person or entity to employ any former
employee of the Company whose resignation from the Company
occurred less than six months prior to such employment by you or
such other person or entity. This provision shall not apply to
Xxxxx Xxxxxx or Xxxxx Xxxxxx. You may seek a waiver of any
provisions of this section in writing from the Company.
iii. Through December 31, 2000, and for a 1-year period thereafter,
you will not, without the Company's prior written consent, (1)
induce or attempt to induce any customer, supplier or contractor
of the Company to terminate or materially diminish any agreement
or arrangement with the Company; or (2) induce or attempt to
induce any customer, supplier or contractor, or any potential
customer, supplier or contractor of the Company not to enter into
any agreement or arrangement with the Company.
iv. You will not at any time, either during and after your
employment, disclose, communicate or divulge, or use for your
benefit or the benefit of any third party, any of
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the trade secrets or other confidential or proprietary
information and materials of the Company, including, solely by
way of illustration but not of limitation, its business
strategies, business plans, budgets, pricing, financial data,
confidential reports, personnel records, credit and financial
data concerning is suppliers or its present and prospective
customers, data about competitors, new product-development
initiatives, customer research and new product or service ideas.
Once your employment has terminated, you will not retain copies
of any confidential information or materials of the Company in
any form, whether print, electronic or otherwise.
v. You will not willfully make any oral or written statement which
reflects adversely upon the character, honesty, credit,
efficiency or business practices of the Company or its former or
current stockholders, directors, officers or employees in their
capacities as such.
vi. Both during and after your employment with the Company you will,
if requested by the Company from time to time, provide
information, testimony and assistance in connection with the
prosecution of any rights or claims by the Company and the
defense of any claims against the Company arising out of matters
of which you acquired knowledge while an employee of the Company.
You agree to make yourself available for such purpose at such
times as the Company may reasonably request and as do not
unreasonably interfere with your other business activities or
commitments.
vii. For a period of 1-year after December 31, 2000, you will make
yourself available to the Company and its designated
representatives for consultation with respect to the past
business and affairs of the Company by telephone or in person at
such times as the Company may reasonably request and as do not
unreasonably interfere with your other business activities or
commitments.
viii. You will not willfully take any action materially adverse to the
interests of the Company, even if such action is in technical
compliance with the other provisions of this letter, but shall at
all times conduct yourself in the same manner and with the same
degree of loyalty to the Company as if you were still an employee
and officer of the Company.
(b) You will keep this letter strictly confidential and, except as may be
required by law, you agree not to disclose it or any of its terms or
conditions to any person other than your legal counsel and financial
advisors to whom disclosure is necessary to effectuate the purposes of
your consulting with such advisors, provided that they are informed of
the confidentiality agreement herein and agree to be bound by it. For
purposes of the restrictions in this agreement that relate to
non-competition and non-solicitation, you may provide a summary
description or excepts of those provisions of the agreement to a
prospective employer, provided it is informed of the confidentiality
agreement herein and agrees to be bound by it. In the event that any
court or agency of competent jurisdiction shall require this Agreement
to be filed with it, you and the Company shall request that the
Agreement be filed and maintained under seal.
6. To the extent requested by you in writing, the Company will provide you
with reasonable
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informational support (i.e., non-confidential information, records or
documentation, but no financial or monetary support) in connection with any
litigation involving you that arises out of matters relating to EarthWeb's
employment of Xxxx Xxxxx.
7. You hereby fully release and discharge the Company and its successors and
assigns from any and all claims, liabilities, obligations, damages, losses,
costs and expenses, known and unknown, suspected or unsuspected, which you
have, have had or may hereafter have arising out of your employment with
the Company, the termination thereof or your compensation in connection
therewith (other than obligations created by, acknowledged in or arising
from this agreement), and you hereby waive any and all rights to assert
against the Company and its successors and assigns, any such claims,
including, without limitation, claims of discrimination (whether based on
race, religion, national origin, sex, sexual orientation, age, marital
status, veteran status, handicap, physical or mental disability, or any
other cause), wrongful discharge, emotional distress, defamation, breach of
contract, breach of covenant of good faith and fair dealing, claims for
wages, bonuses, vacation or sick pay or other benefits, and violation of
any local, state or federal law or regulation. You specifically waive any
and all rights and claims arising under the federal Age Discrimination in
Employment Act of 1967 (although such waiver does not apply to rights or
claims that may arise after the date this Agreement is executed).
8. You acknowledge and agree that, except as expressly provided herein, you
will be entitled to no further employment with the Company, and, except for
the foregoing, you are not entitled to and will not receive any additional
compensation, payments or benefits of any kind from the Company, and that
no representations or promises to the contrary have been made to you.
9. This letter sets forth our entire agreement with respect to the subject
matter thereof and supersedes all prior written or oral agreements between
you and any representative of the Company on that subject. No provision of
this agreement may be modified or waived except in a writing signed by the
party against whom the enforcement of any such modification or waiver is
sought. If any provision of this agreement is prohibited or invalid under
any law, such provision shall be ineffective to the extent of any
prohibition or invalidity, without invalidating the remainder of such
provision or the other provisions of this agreement. This agreement will
bind and benefit both parties and their respective heirs, executors,
administrators, successors and assigns. This agreement shall be governed by
and construed in accordance with the laws of the State of New York without
reference to its rules regarding choice or conflicts of laws.
10. You acknowledge that you have read and understand this agreement; that you
have signed it voluntarily and without coercion; and that the waivers you
have made in this agreement have been made with full appreciation that you
will be foreclosed from pursuing the rights so waived. You agree that if
you assert or attempt to assert any claims or rights so waived, you will
pay all costs incurred by the Company or its employees, including
reasonable attorneys' fees and disbursements, in defending against such
claims.
For a period of seven (7) days following the execution of this agreement, you
may revoke the agreement by delivering written notice of revocation to the
Company's Vice President of Human Resources at 0 Xxxx Xxxxxx, Xxx Xxxx, XX. This
agreement will not become effective or enforceable until the 7-day revocation
period has expired. If the 7-day revocation period expires
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without you having revoked the agreement, the agreement becomes effective as of
the date executed by both parties. If you revoke the agreement, the Company will
not be bound by the terms set forth above. You understand that your acceptance
of any of the payments or benefits described herein at any time more than seven
(7) days after you sign this agreement and release confirms that you did not
revoke your consent to this agreement and release and therefore that it is fully
effective and enforceable.
Xxxx, if the above accurately reflects our agreement on this matter, please sign
the attached duplicate of this letter in the space provided below and return it
to me.
Sincerely,
EARTHWEB INC.
By:
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Xxxx X. Xxxxxx
CEO & President
AGREED AND ACCEPTED:
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Xxxxxxx Xxxxxx Date
