Exhibit 10.1
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EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") is entered into by
and between MediaBin, Inc., a Georgia corporation with its principal offices at
Suite 600 - Seven Piedmont Center, 0000 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000
(the "the Company") and Xxxxx Xxxxx ("Executive"), an individual, and shall be
effective on the Effective Date, as defined below.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements of the parties hereto, the parties do hereby covenant and agree
as follows:
1. Background.
A. The Company is engaged in the business developing, marketing, and
selling commercial computer software that enables large corporations to
electronically (i) prepare and re-format pictures of their brands and products
("Images") for use in various types of medium, including, but not limited to,
print ads, the Internet, store merchandising displays, and billboards, (ii)
track the usage of their Images and subsequent revisions of such Images, (iii)
access the most current version of any Image, (iv) share Images or sets of
Images among geographically dispersed employees, and (v) search for any Image
stored in the corporation's local or remote database.
B. The Company desires to secure and retain the services of Executive in
the office and in the capacities to be designated pursuant to Subsection 4A
hereof, and Executive desires to engage in the full and active employ of the
Company in accordance with the terms and conditions herein set forth, and the
Company desires to retain Executive's valuable skills and services for the
benefit of the Company.
2. Definitions.
For purposes of this Agreement and unless otherwise indicated, the
following terms shall have the meaning as set forth below, and the parties
hereto agree to be bound by the provisions hereof:
A. Board of Directors means the Board of Directors of the Company.
B. Business means the business of developing, marketing, and selling
commercial computer software ("Software") that enables large corporations to
electronically (i) prepare and re-format pictures of their brands and products
("Images") for use in various types of medium, including, but not limited to,
print ads, the Internet, store merchandising displays, and billboards, (ii)
track the usage of their Images and subsequent revisions of such Images, (iii)
access the most current version of any Image, (iv) share Images or sets of
Images among geographically dispersed employees, and (v) search for any Image
stored in the corporation's local or remote database. The Software can perform
the foregoing capabilities for Images in all types of formats.
C. Change in Control means either of the following: (a) any transaction or
series of transactions pursuant to which the Company sells, transfers, leases,
exchanges or disposes of substantially all of its assets for cash or property,
or for a combination of cash and property, or for other consideration; or (b)
any transaction pursuant to which persons who are not current shareholders of
the Company acquire by merger, consolidation, reorganization, division or other
business combination or
transaction, or by a purchase of an interest in the Company, an interest in the
Company so that after such transaction, the shareholders of the Company
immediately prior to such transaction no longer have a controlling (i.e., 50% or
more) voting interest in the Company. However, notwithstanding the foregoing, in
no event shall an initial public offering of the Company's common stock
constitute a Change of Control.
D. Company means MediaBin, Inc., its parents, subsidiaries, affiliates and
all related companies, as well as their respective officers, directors,
shareholders, employees, agents and any other representatives.
E. Confidential Information means (a) information of the Company, to the
extent not considered a Trade Secret under applicable law, that (i) relates to
the business of the Company, (ii) possesses an element of value to the Company,
(iii) is not generally known to the Company's competitors, and (iv) would damage
the Company if disclosed, and (b) information of any third party provided to the
Company which the Company is obligated to treat as confidential. Confidential
Information includes, but is not limited to, (i) future business plans, (ii) the
composition, description, schematic or design of products, future products or
equipment of the Company, (iii) communication systems, audio systems, system
designs and related documentation, (iv) advertising or marketing plans, (v)
information regarding independent contractors, employees, clients and customers
of the Company, and (vi) information concerning the Company's financial
structure and methods and procedures of operation. Confidential Information
shall not include any information that (i) is or becomes generally available to
the public other than as a result of an unauthorized disclosure, (ii) has been
independently developed and disclosed by others without violating this Agreement
or the legal rights of any party, or (iii) otherwise enters the public domain
through lawful means.
F. Contact means any interaction between Executive and a Customer which
(i) takes place in an effort to establish, maintain, and/or further a business
relationship on behalf of the Company and (ii) occurs during the last two years
of Executive's employment with the Company (or during Executive's employment if
employed less than two years).
G. Customer means any person or entity to whom the Company has sold its
products or services, or solicited to sell its products or services.
H. Effective Date means September 1, 2001.
I. Employee means any person who (i) is employed by the Company at the
time Executive's employment with the Company ends, (ii) was employed by the
Company during the last year of Executive's employment with the Company (or
during Executive's employment if employed less than a year), or (iii) is
employed by the Company during the Restricted Period.
J. Licensed Materials means any materials that Executive utilizes for the
benefit of the Company, or delivers to the Company or the Company's customers,
which (i) do not constitute Work Product, (ii) are created by Executive or of
which Executive is otherwise in lawful possession, and (iii) Executive may
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lawfully utilize for the benefit of, or distribute to, the Company or the
Company's customers.
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K. Permanent Disability means a physical or mental condition which renders
Executive incapable of performing the essential functions of his job with or
without reasonable accommodation for a period of ninety (90) consecutive days as
reasonably determined by the Board of Directors.
L. Plan means the Company's 2001 Stock Incentive Plan.
M. Restricted Period means the time period during Executive's employment
with the Company, and for two (2) years after Executive's employment with the
Company ends.
N. Term means the two-year period beginning on the Effective Date and
ending on August 31, 2003, unless this Agreement is either renewed or terminated
earlier as provided in Section 6 below.
O. Termination With Cause means the termination by the Company of this
Agreement and Executive's employment for any one of the following reasons:
(i) Executive's theft or embezzlement of property of the Company;
(ii) Continued gross neglect by Executive in fulfilling his duties as set
forth in this Agreement and Executive's failure to cure such gross
neglect, if possible as determined in the sole discretion of the
Board of Directors, within thirty (30) days after receiving written
notification of such gross neglect from the Board of Directors
setting forth in detail the matters involved;
(iii) Actual fraud or other material acts of dishonesty in conducting the
Company's business or in the fulfillment by Executive of his
assigned responsibilities; the destruction of any material amount of
the Company's property willfully or through Executive's gross
neglect; or the unauthorized disclosure of any Confidential
Information or Trade Secrets in violation of Section 7 below; or
(iv) A violation or other failure of Executive to perform in accordance
with any material provision of any written agreement with the
Company or the codes of conduct, policies, and procedures of the
Company, including, but not limited to, those described in any
employee handbook distributed by the Company, or to perform in
accordance with the reasonable directives imposed upon him by the
Board of Directors, and Executive does not cure such violation or
other failure, if possible as determined in the sole discretion of
the Board of Directors, within thirty (30) days after receipt of
notice by Executive from the Company.
P. Termination Without Cause means a termination by the Company of this
Agreement and Executive's employment for any reason that is not listed in
Section 6B(i), (ii), (iii), (iv), or (v) of this Agreement.
Q. Trade Secrets means information of the Company, and its licensors,
suppliers, clients and customers, without regard to form, including, but not
limited to, technical or nontechnical 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
generally known to, and not being readily ascertainable by proper
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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.
R. Voluntary Termination means unilateral termination by Executive of
his employment with the Company prior to the end of the Term; provided that
Executive shall not be considered to have unilaterally terminated his employment
with the Company if Executive terminates his employment following: (i) the
Company's breach of a material term of this Agreement which the Company fails to
cure within thirty (30) days after receiving notice thereof from Executive and
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Executive terminates his employment within twenty (20) days following the
expiration of such cure period, or (ii) any relocation without Executive's
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consent to an office of the Company located more than fifty (50) miles from the
city limits of Atlanta, Georgia and Executive terminates his employment within
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twenty (20) days following such relocation. A termination by Executive of his
employment that falls within sub-clauses (i) or (ii) of the preceding sentence
shall constitute a Termination Without Cause for purposes of Section 6 below.
S. Work Product means (a) any data, databases, materials,
documentation, computer programs, inventions (whether or not patentable),
designs, and/or works of authorship, including but not limited to, discoveries,
ideas, concepts, properties, formulas, compositions, methods, programs,
procedures, systems, techniques, products, improvements, innovations, writings,
pictures, audio, video, images of Executive, and artistic works, and (b) any
subject matter protected under patent, copyright, proprietary database,
trademark, trade secret, rights of publicity, confidential information, or other
property rights, including all worldwide rights therein, that is or was
conceived, created or developed in whole or in part by Executive while employed
by the Company and that either (i) is created within the scope of Executive's
employment, (ii) is based on, results from, or is suggested by any work
performed within the scope of Executive's employment and is directly or
indirectly related to the business of the Company or a line of business that the
Company may reasonably be interested in pursuing, (iii) has been or will be paid
for by the Company, or (iv) was created or improved in whole or in part by using
the Company's time, resources, data, facilities, or equipment.
3. Employment. Subject to the terms and conditions hereof, the Company, through
its Board of Directors, agrees to employ Executive in the office of Chief
Executive Officer and President of the Company, and Executive agrees to accept
such employment and office upon the terms and conditions set forth herein.
4. Responsibilities.
A. Commencing as of the Effective Date and during the Term, Executive
shall assume the responsibilities, perform the duties, and exercise the powers
as directed by the Board of Directors as described on Exhibit A to this
Agreement.
B. In performing the duties and exercising the powers as set forth in this
Agreement, Executive agrees and acknowledges to act in a professional, ethical
and business like manner at all times and under all circumstances. Executive
also agrees to comply with and follow all codes of conduct, policies, and
procedures of the Company, including those described in any employee handbook
distributed by the Company. If this Agreement conflicts with such codes of
conduct, policies or procedures, this Agreement will control.
5. Compensation. The Company shall pay, and Executive agrees to accept, as
full and complete compensation for services to be rendered hereunder during the
Term, the remuneration described below:
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A. Monthly Salary. The Company shall pay Executive a base monthly salary
as of the Effective Date of Twenty Two Thousand Nine Hundred Sixteen Dollars and
Sixty-Six Cents ($22,916.66) per month ("Monthly Salary"), subject to increases
which, if granted, shall be effective and in such amounts as the Board of
Directors in its sole discretion may deem appropriate. Monthly Salary shall be
payable according to the customary payroll practices of the Company and shall be
subject to all applicable withholdings.
B. Quarterly Bonus. During the Term, Executive will be eligible to
receive a quarterly bonus with a target payment of up to $55,000 if Executive's
performance and the Company's performance meets certain quarterly goals
established each fiscal year by the Board of Directors (the "Quarterly Bonus").
Executive will not receive any Quarterly Bonus if, for any reason, Executive is
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not employed on the last day of the fiscal quarter for which the Quarterly Bonus
is to be paid. The Quarterly Bonus will be subject to all applicable
withholdings. The Quarterly Bonus for the year 2001 will be prorated based upon
the number of days Executive is employed during such quarter.
C. Signing Bonus. The Company will pay Executive a signing bonus of
$25,000 (the "Signing Bonus") within thirty (30) days of the Effective Date.
The Signing Bonus will be subject to all applicable withholdings.
D. Change in Control Bonus. Within thirty (30) days of a Change in
Control, the Company shall pay Executive a cash bonus of at least $500,000 (the
"Change in Control Bonus"); provided, however, that the Change in Control Bonus
may be increased based upon the realized value of the Company as determined by
the Board of Directors. Executive will not receive the Change in Control Bonus
if, for any reason, Executive is not employed on the date of the Change in
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Control. The Change in Control Bonus will be subject to all applicable
withholdings.
E. Stock Options. As soon as possible after execution of this Agreement,
the Company will request that the Board of Directors grant, within one (1) week
after the Effective Date, Executive one or more options to acquire a total of
1,000,000 shares of the Company's common stock (the "Options") pursuant to the
terms and conditions of the Company's 2001 Stock Incentive Plan as set forth in
Exhibit B (the "Plan") and the Stock Option Grant Certificate set forth on
Exhibit C. The exercise price per share of the Options shall be equal to the
fair market value of a share of the Company's common stock as of the date of
grant. To the extent possible, the Options shall be incentive stock options.
F. Insurance and Benefits.
(i) The Company shall allow Executive to participate in or receive
benefits under all employee and executive benefit plans or
arrangements maintained by the Company all at the highest level that
is available through the Company to other senior officers of the
Company subject to the same terms and conditions as generally apply to
such other senior officers.
(ii) Executive shall be entitled to all holidays recognized by the Company
and vacation time as are generally available to other senior officers
of the Company, with continuing payment of all compensation as set
forth herein. Executive shall be reimbursed by the Company for all
necessary and reasonable expenses incurred on behalf of the Company in
accordance with then current reimbursement policies of the Company.
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G. Automobile Allowance. During the Term, the Company will pay Executive
an automobile allowance of $14,000 per year, to be paid semi-monthly, subject to
all applicable withholdings.
H. Form of Currency. All amounts set forth in this Agreement are
designated in U.S. dollars.
I. Excise Taxes. If Executive believes that he might be required to pay
any Code (S) 4999 excise tax in connection with the benefits described in this
Agreement, Executive shall be entitled to request the calculation and payment of
such excise tax to the extent provided in this Agreement; provided, however,
that Executive must provide an independent tax consultant selected by the
Company (the "ITC") with all information the Company or the ITC deems necessary,
appropriate or useful for the ITC to determine the proper amount of excise tax
which should be paid by Executive, and Executive must agree with the release of
such information by the Company to the ITC.
The ITC shall, with respect to Executive upon Executive's making a request
for the calculation and payment of Code (S) 4999 excise tax, make a
determination as to whether the amounts paid to Executive under this Agreement
which constitute "parachute payments" (as defined in Code (S) 280G) (hereinafter
referred to as "Parachute Payments") could be subject to the Code (S) 4999
excise tax. In doing so, the ITC shall determine Executive's "Base Amount" (as
defined in Code (S) 280G) and, provided the Parachute Payments equal or exceed
three hundred sixty percent (360%) of Executive's Base Amount, Executive shall
receive an additional lump sum cash payment (the "Gross-Up Payment") in an
amount determined by the ITC such that, after payment by Executive of all taxes
(including any Code (S) 4999 excise tax) imposed upon the Gross-Up Payment and
any interest or penalties imposed with respect to such taxes, Executive will
retain from the Gross-Up Payment an amount equal to the Code (S) 4999 excise tax
imposed upon the Parachute Payments, subject to any other provisions of this
Agreement to the contrary. If the ITC shall determine that no Code (S) 4999
excise tax is payable by Executive, the ITC shall furnish Executive with a
written opinion that Executive has substantial authority not to report any Code
(S) 4999 excise tax due on Executive's income tax returns. If the ITC
determines the Parachute Payments do not equal or exceed 360% of Executive's
Base Amount, no Gross-Up Payment shall be made to Executive.
Executive shall notify the Company in writing within fifteen (15) days of
any claim by the Internal Revenue Service ("IRS") that, if successful, would
require the payment by the Company of Code (S) 4999 excise tax on behalf of
Executive. If Executive is subsequently required to make a payment of any Code
(S) 4999 excise tax by the IRS, then the Company shall make a Gross-Up Payment
to Executive if the IRS determines the Parachute Payments equal or exceed three
hundred sixty (360%) of Executive's Base Amount; provided, however, the Company
may, in lieu of making such payment to Executive, notify Executive in writing
that it desires that Executive contest the IRS's claim, in which case Executive
and the Company shall cooperate, and the Company shall bear all costs and
expenses (including payment of any resulting Code (S) 4999 excise tax ultimately
determined to be due, additional interest and penalties) incurred in connection
with contesting such claim, to the extent that such would exceed the necessary
Gross-Up Payment.
6. Term and Termination.
A. The Term shall be for a period of two (2) years, beginning on the
Effective Date and ending on August 31, 2003. Upon expiration of the Term, this
Agreement will automatically renew for a
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one-year period (each a "Renewal Period"), unless either party notifies the
other party prior to the end of the Term or the Renewal Period that the
Agreement will not be renewed. If this Agreement is renewed in accordance with
this Section, each Renewal Period shall be included in the definition of "Term"
for purposes of this Agreement. If this Agreement is not renewed in accordance
with this Section, Executive's employment will terminate or Executive's
employment relationship will convert to an at-will relationship, meaning that
Executive may terminate his employment with the Company at any time and for any
reason whatsoever simply by notifying the Company, and the Company may terminate
Executive's employment at any time with or without cause or advance notice. If
this Agreement is not renewed and Executive's employment relationship converts
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to an at-will relationship, the period in which Executive continues to be
employed with the Company shall not be included in the definition of "Term" for
purposes of this Agreement.
B. During the Term, this Agreement may be terminated by any of the
following events:
(i) Mutual written agreement signed by both the Company and
Executive at any time;
(ii) Voluntary Termination by Executive;
(iii) Death or Permanent Disability of Executive;
(iv) Expiration of the Term, unless renewed as provided in Section
6A above;
(v) Termination With Cause; provided, however, that the Company
shall provide Executive with the opportunity to meet with the
Board of Directors before terminating this Agreement With
Cause; or
(vi) Termination Without Cause.
C. If this Agreement terminates for any of the reasons stated in Section
6B(i), (ii), (iii), (iv), or (v) above, then Executive shall be entitled to
receive his Monthly Salary through the termination date and thereafter the
Company shall have no further obligations under this Agreement, including, but
not limited to, the obligation to pay Executive any portion of any bonus
contemplated by this Agreement, but Executive shall continue to be bound by
Sections 7A, B, and C, and all other post-termination obligations to which
Executive is subject, including, but not limited to, the obligations contained
in this Agreement.
D. If the Company terminates the employment of Executive for the reason
stated in Section 6B(vi) above, then (i) the Company shall pay Executive a
separation payment equal to Executive's Monthly Salary in effect as of the date
of termination for a period of twelve (12) months, payable over a period of
twelve (12) months (the "Separation Pay Period") in accordance with the
Company's normal payroll practices, and (ii) the Company shall reimburse
Executive's and Executive's eligible dependents' COBRA premium under the
Company's major medical group health plan on a monthly basis until the earlier
of (A) the expiration of the Separation Pay Period, or (B) the date on which
Executive obtains medical coverage from another employer. The separation
payments and benefits set forth in the preceding sentence shall constitute full
satisfaction of the Company's obligations under this Agreement. The Company's
obligation to provide the separation payments and benefits set forth in this
Section 6D shall be conditioned upon Executive's:
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1. Execution of a Separation and Release Agreement in a form prepared
by the Company whereby Executive releases the Company from any and
all liability and claims of any kind; and
2. Compliance with the restrictive covenants (Sections 7A, B, and C)
and all post-termination obligations, including, but not limited
to, the obligations contained in this Agreement.
The Company's obligation to make the separation payments set forth in
this Section 6D shall terminate immediately upon any breach by Executive of any
post-termination obligations to which he is subject.
E. If Executive has any outstanding obligations to the Company at the time
this Agreement terminates for any reason, Executive acknowledges that the
Company is authorized to deduct any amounts owed to the Company from Executive's
final paycheck and/or from any amounts that would otherwise be due to Executive
under Section 6D above.
F. Upon termination of employment for any reason, Executive shall return
immediately to the Company all documents, property, and other records of the
Company, and all copies thereof, within Executive's possession, custody or
control, including but not limited to any materials containing any Trade Secrets
or Confidential Information or any portion thereof.
7. Restrictive Covenants. Executive acknowledges that (i) his position is a
position of trust and responsibility with access to Confidential Information,
Trade Secrets, and information concerning employees and customers of the
Company, (ii) the Trade Secrets and Confidential Information, and the
relationship between the Company and each of its Employees and Customers are
valuable assets of the Company and may not be converted to Executive's own use,
(iii) the restrictions contained in this Section 7 are reasonable and necessary
to protect the legitimate business interests of the Company, and will not impair
or infringe upon Executive's right to work or earn a living after Executive's
employment with the Company ends.
A. Trade Secrets and Confidential Information. Executive represents and
warrants that: (i) he is not subject to any agreement that would prevent him
from performing his duties for the Company or otherwise complying with this
Agreement, and (ii) he is not subject to or in breach of any non-disclosure
agreement, including any agreement concerning trade secrets or confidential
information owned by any other party.
Executive agrees that he will not: (i) use, disclose, or reverse
engineer the Trade Secrets or the Confidential Information, except as authorized
by the Company; (ii) during his employment with the Company, use, disclose, or
reverse engineer (a) any confidential information or trade secrets of any former
employer or third party, or (b) any works of authorship developed in whole or in
part by Executive during any former employment or for any other party, unless
authorized in writing by the former employer or third party; or (iii) upon
Executive's resignation or termination (a) retain Trade Secrets or Confidential
Information, including any copies existing in any form (including electronic
form), which are in his possession or control, or (b) destroy, delete, or alter
the Trade Secrets or Confidential Information without the Company's consent.
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The obligations under this Section 7A shall: (i) with regard to the
Trade Secrets, remain in effect as long as the information constitutes a trade
secret under applicable law, and (ii) with regard to the Confidential
Information, remain in effect during the Restricted Period.
The confidentiality, property, and proprietary rights protections
available in this Agreement are in addition to, and not exclusive of, any and
all other rights to which the Company is entitled under federal and state law,
including, but not limited to, rights provided under copyright laws, trade
secret and confidential information laws, and laws concerning fiduciary duties.
B. Non-Solicitation of Customers. During the Restricted Period, Executive
will not solicit any Customer of the Company for the purpose of providing any
goods or services competitive with the Business. The restrictions set forth in
this Section 7B apply only to the Customers with whom Executive had Contact.
C. Non-Recruit of Employees. During the Restricted Period, Executive will
not, directly or indirectly, solicit, recruit or induce any Employee to (a)
terminate his or her employment relationship with the Company or (b) work for
any other person or entity engaged in the Business.
8. Work Product. Executive's employment duties may include inventing in areas
directly or indirectly related to the business of the Company or to a line of
business that the Company may reasonably be interested in pursuing. All Work
Product shall constitute work made for hire. If (i) any of the Work Product may
not be considered work made for hire, or (ii) ownership of all right, title, and
interest to the legal rights in and to the Work Product will not vest
exclusively in the Company, then, without further consideration, Executive
assigns all presently-existing Work Product to the Company, and agrees to
assign, and automatically assigns, all future Work Product to the Company.
The Company will have the right to obtain and hold in its own name
copyrights, patents, design registrations, proprietary database rights,
trademarks, rights of publicity, and any other protection available in the Work
Product. At the Company's request, Executive agrees to perform, during or after
Executive's employment with the Company, any acts to transfer, perfect and
defend the Company's ownership of the Work Product, including, but not limited
to: (i) executing all documents (including a formal assignment to the Company)
necessary for filing an application or registration for protection of the Work
Product (an "Application"), (ii) explaining the nature of the Work Product to
persons designated by the Company, (iii) reviewing Applications and other
related papers, or (iv) providing any other assistance reasonably required for
the orderly prosecution of Applications.
Executive agrees to provide the Company with a written description of any
Work Product in which he is involved (solely or jointly with others) and the
circumstances surrounding the creation of such Work Product.
9. License. Executive grants to the Company an irrevocable, nonexclusive,
worldwide, royalty-free license to: (i) make, use, sell, copy, perform,
display, distribute, or otherwise utilize copies of the Licensed Materials, (ii)
prepare, use and distribute derivative works based upon the Licensed Materials,
and (iii) authorize others to do the same. Executive shall notify the Company in
writing of any Licensed Materials he delivers to the Company.
10. Release. Executive consents to the Company's use of his image, likeness,
voice, or other characteristics in the Company's products or services. Executive
releases the Company from any cause of
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action which he has or may have arising out of the use, distribution,
adaptation, reproduction, broadcast, or exhibition of such characteristics.
Executive represents that he has obtained, for the benefit of the Company, the
same release in writing from all third parties whose characteristics are
included in the services, materials, computer programs and other deliverables
that Executive provides to the Company.
11. Post-Employment Disclosure. During the Restricted Period, Executive shall
provide a copy of this Agreement to persons and/or entities to whom Executive
provides goods and services. If Executive provides services to another person or
entity during the Restricted Period, Executive shall provide the Company with
such person or entity's name, Executive's job title, and a description of the
services he will provide.
12. Equitable Relief. Executive agrees that if he breaches Sections 7, 8, 9
and/or 10 of this Agreement: (i) the Company would suffer irreparable harm; (ii)
it would be difficult to determine damages, and money damages alone would be an
inadequate remedy for the injuries suffered by the Company, and (iii) if the
Company seeks injunctive relief to enforce this Agreement, Executive will waive
and will not (a) assert any defense that the Company has an adequate remedy at
law with respect to the breach, (b) require that the Company submit proof of the
economic value of any Trade Secret or Confidential Information, or (c) require
the Company to post a bond or any other security. Nothing contained in this
Agreement shall limit the Company's right to any other remedies at law or in
equity.
13. Severability. If any provision of this Agreement is held to be invalid or
unenforceable by any court of competent jurisdiction, such holdings shall not
affect the enforceability of any other provision of this Agreement, and all
other provisions shall continue in full force and effect.
14. Attorneys' Fees. If a dispute between the parties arises in connection
with this Agreement, the prevailing party shall be entitled to reimbursement
from the other party for reasonable attorneys' fees and expenses incurred by the
prevailing party in connection with the resolution of the dispute.
15. Headings. The headings of the several paragraphs in this Agreement are
inserted for convenience of reference only and are not intended to affect the
meaning or interpretation of this Agreement.
16. Notices. All notices, consents, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given or
delivered if (i) delivered personally; (ii) mailed by certified mail, return
receipt requested, with proper postage prepaid; or (iii) delivered by recognized
courier contracting for same day or next day delivery with signed receipt
acknowledgment to:
(a) To the Company:
MediaBin, Inc.
Suite 600 - Seven Piedmont Center
0000 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Chairman of the Board of Directors
With a copy to:
Xxxxxx, Xxxxxxx & Xxxxxx, LLP
1600 Atlanta Financial Center
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0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxxx, Esq.
(b) To Executive:
Xxxxx Xxxxx
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or at such other address as the parties hereto may have last designated by
notice to the other parties. Any item delivered personally or by recognized
courier contracting for same day or next day delivery shall be deemed delivered
on the date of delivery. Any item mailed by certified mail shall be deemed to
have been delivered on the date evidenced on the return receipt.
17. Governing Law. Except as provided in Section 22 of this Agreement, this
Agreement shall be governed by and construed under the laws of the State of
Georgia, without giving effect to its conflict of law principles.
18. Waiver. The Company's failure to enforce any provision of this Agreement
shall not act as a waiver of that or any other provision. The Company's waiver
of any breach of this Agreement shall not act as a waiver of any other breach.
19. Successors and Assigns. The terms of this Agreement shall be binding upon
and inure to the benefit of the Company and its successors and assigns.
Executive may not assign his rights and obligations under this Agreement to any
other party. The covenants contained in Sections 7 A, B, and C of this Agreement
shall survive cessation of Executive's employment with the Company, regardless
of the reason for cessation of his employment and regardless of who causes the
cessation.
20. Entire Agreement. This Agreement, including Exhibits A, B, and C which are
incorporated by reference, constitutes the entire agreement between the parties
concerning the subject matter of this Agreement. Except as otherwise provided
herein, this Agreement supersedes any prior communications, agreements or
understandings, whether oral or written, between the parties relating to the
subject matter of this Agreement. Other than terms of this Agreement, no other
representation, promise or agreement has been made with Executive to cause
Executive to sign this Agreement. No amendment or modification of this Agreement
shall be valid or binding unless in writing and signed by both parties.
21. Confidentiality. The terms and conditions of this Agreement are highly
confidential. Accordingly, Executive acknowledges and agrees that neither he
nor anyone acting on his behalf has made or will make any disclosures concerning
the existence or terms of this Agreement to any person or entity, except: (i)
Executive's spouse; (ii) Executive's attorneys, accountants, or financial
advisors, but only to the extent disclosure is necessary to obtain legal or
professional services from such persons; or (iii) a government agency or court
of competent jurisdiction pursuant to a legally enforceable subpoena. If
Executive makes any disclosure to any person described in sub-clauses (i) or
(ii) above, Executive shall inform such person of this confidentiality provision
and shall receive the individual's agreement not to make any use, disclosure, or
announcement concerning this Agreement in violation of this Section.
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22. Arbitration. Except as provided below, all disputes arising out of
Executive's employment or the cessation of Executive's employment, including,
but not limited to, claims arising under or relating to this Agreement, claims
for breach of contract, tort, employment discrimination, retaliation, or
harassment, as well as any other statutory or common law claims, at law or in
equity, recognized under any federal, state, or local law shall be exclusively
resolved by final binding arbitration under the Federal Arbitration Act, 9
U.S.C. (S) 1. Such claims shall be settled by final and binding arbitration
administered by the American Arbitration Association in accordance with its
Commercial Arbitration Rules, and judgment on the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof.
This arbitration provision shall not apply to any disputes or claims
relating to or arising out of the restrictive covenants set forth in Section 7
of this Agreement, including, but not limited to, any claims for equitable
relief relating to such restrictive covenants. Any claims relating to or arising
out of Section 7 of this Agreement shall be governed by the laws of the State of
Georgia and shall be (i) brought in the Superior Court of Xxxxxx County,
Georgia, or (ii) brought in or removed to the United States District Court for
the Northern District of Georgia, Atlanta Division. Executive consents to the
personal jurisdiction of the courts identified above. Executive waives (i) any
objection to jurisdiction or venue, or (ii) any defense claiming lack of
jurisdiction or improper venue, in any action brought in such courts.
23. AFFIRMATION. EXECUTIVE ACKNOWLEDGES THAT HE HAS CAREFULLY READ THIS
AGREEMENT AND KNOWS AND UNDERSTANDS ITS TERMS AND CONDITIONS. HE ACKNOWLEDGES
THAT HE HAS HAD THE OPPORTUNITY TO CONSULT WITH AN ATTORNEY AND TO ASK THE
COMPANY ANY QUESTIONS HE MAY HAVE HAD PRIOR TO SIGNING THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have affixed their seals and
executed this Agreement effective as of the Effective Date.
MEDIABIN, INC.
/s/ Xxxx X. Xxxxx
-----------------------------
By: Xxxx X. Xxxxx
-----------------------------
Title: Chairman
----------------------
Date: July 31, 2001
----------------------
EXECUTIVE:
/s/ Xxxxx Xxxxx
-----------------------------
XXXXX XXXXX, Individually
Date: July 31, 2001
----------------------
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EXHIBIT A
Duties of Executive
-------------------
The following duties of Executive may be modified, reduced or revised by
the Board of Directors in its discretion and upon providing notice to Executive:
1. Manage the daily business and affairs of the Company.
2. Exercise general supervision and administration over all daily affairs
of the Company with power to make and execute all contracts, leases and other
documents or instruments in the conduct of the regular and ordinary business of
the Company, subject to and unless otherwise directed by the Board of Directors.
3. Exercise general supervision over other officers and agents of the
Company.
4. Ensure that all orders and resolutions of the Board of Directors are
carried into effect.
5. Formulate and implement business plans of the Company as approved by
the Board of Directors.
6. Do and perform all such other acts as specified in the Bylaws of the
Company or as directed by the Board of Directors of the Company.
7. Comply with all policies, restrictions and procedures adopted by the
Company or the Board of Directors relating to the sale or purchase of securities
of the Company including all U.S. and Norwegian rules and regulations relating
thereto.
8. Other duties as assigned.
EXHIBIT B
2001 Stock Incentive Plan
-------------------------
[Attached to original]
EXHIBIT C
[Stock Option Grant Certificate]
