EXHIBIT 10.36
EMPLOYMENT AGREEMENT dated as of
February 5, 2004, between GREENFIELD ONLINE,
INC., a Delaware corporation (the
"Company"), and XXXX XXXXXX (the
"Executive").
The Company is engaged in the business (the "Subject Business") of
providing marketing research data collection services over the Internet. The
Executive has experience in the field of senior level corporate management,
which experience is valuable to the Subject Business and the Company and the
Company desires to employ and the Executive desires to be employed as the
Company's Senior Vice President Global Partner Strategy.
The Executive and the Company desire to enter into this Employment
Agreement to set forth the terms governing the Executive's employment as well as
to provide adequate and reasonable protection for the Company's legitimate
business interest of safeguarding its trade secrets, confidential information,
customer and employee relationships.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. INTENTIONALLY OMITTED.
SECTION 2. EMPLOYMENT.
The Company shall employ the Executive, and the Executive accepts
employment with the Company, as an employee-at-will upon the terms and
conditions set forth in this Agreement for the period beginning on the Effective
Date (as defined in Section 15(j)) and ending on the Termination Date determined
pursuant to Section 5(a) (the "Employment Period"). THIS IS NOT A CONTRACT OF
EMPLOYMENT. EXECUTIVE IS AN EMPLOYEE-AT-WILL AND MAY BE TERMINATED BY COMPANY AT
ANY TIME WITH OR WITHOUT CAUSE.
SECTION 3. BASE SALARY, BONUS AND BENEFITS.
(a) During the Employment Period, the Executive's base salary shall be
$150,000 per annum or such other rate as the Compensation Committee of the Board
(excluding the Executive if he should be a member of the Board or the
Compensation Committee at the time of such determination) may designate from
time to time (the "Base Salary"), which salary shall be reviewed by the
Compensation Committee on an annual basis and payable in such installments as is
customary for other senior executives of the Company. In addition, during the
Employment Period, the Executive shall be entitled to (i) participate in
employee benefit programs and published bonus programs for which other senior
executives of the Company are generally eligible, (ii) be eligible to
participate in all insurance plans available generally to other senior
executives of the Company, and (iv) take 3 weeks of paid vacation annually. In
the case of any partial month during the Employment Period, reimbursements,
payments and other entitlements pursuant to this Section 3 shall be made or
provided to the Executive on a per diem basis.
(b) In addition to the Base Salary and benefits set forth in paragraph (a)
above, during the Employment Period the Executive shall be entitled to receive
performance bonuses, which for Fiscal Year 2004 at 100% of plan entitled the
Executive to an annual bonus of $75,000 (pro-rated for the partial year). The
Fiscal Year 2004 bonus will be calculated as set forth below. In subsequent
years of the Employment Period the bonus plan (which may result in a higher or
lower bonus potential), will be determined within the first quarter of each
fiscal year.
(i) One half will be earned and paid in accordance with the terms
enjoyed by other members of the senior management team.
(ii) One half will be earned by achieving certain personal quarterly
goals, which shall be determined in the first 30 days of your employment.
This portion of your bonus will be paid within 45 days of the end of each
quarter.
(c) Subject to the approval of the Compensation Committee of the Board
Directors, the Company will grant the Executive options (the "Options") to
purchase 750,000 shares of Common Stock, $.0001 par value with an exercise price
of $_____ per share, of the Company pursuant to the GREENFIELD ONLINE, INC.
AMENDED AND RESTATED 1999 STOCK OPTION PLAN (the "Option Plan"). The Options
will be evidenced by a Stock Option Agreement between the Executive and the
Company in a form and according to the terms identified in Exhibit __ attached
hereto. The Option Plan and the Stock Option Agreement will contain all of the
terms and conditions of the Executive's Options. As a condition to receipt of
the Options the Executive will be required to sign a Retained Shareholder
Joinder to the Company's Shareholders' Agreement dated as of May 17, 1999 as
Amended and Shareholder Joinder to the Company's Registration Rights Agreement
dated as of May 17, 1999, as amended.
(d) The Company shall reimburse the Executive for all reasonable expenses
incurred by him in the course of performing her duties under this Agreement
which are consistent with the Company's policies in effect from time to time
with respect to travel, entertainment and other business expenses, subject to
the Company's requirements with respect to reporting and documentation of such
expenses.
(e) The Company shall deduct from any payments to be made by it to the
Executive under this Agreement any amounts required to be withheld in respect of
any Federal, state or local income or other taxes.
SECTION 4. POSITION AND DUTIES.
(a) During the Employment Period, the Executive shall initially serve as
Senior Vice President Global Partner Strategy, and shall report to the President
and CEO. The Executive shall perform her duties at a location within the
Minneapolis metro area in suitable facilities provided by the Company. The
Executive acknowledges and agrees that he owes a fiduciary duty of loyalty to
the Company to discharge her duties and otherwise act in a manner consistent
with the best interests of the Company and its Subsidiaries.
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(b) During the Employment Period, the Executive shall devote her best
efforts and full working time, attention and energies to the performance of her
duties and responsibilities under this Agreement (except for vacations to which
he is entitled pursuant to Section 3(a) and except for illness or incapacity).
During the Employment Period, the Executive shall not engage in any business
activity which, in the reasonable judgment of the Board (excluding the Executive
if he should be a member of the Board at the time of such determination),
conflicts with the duties of the Executive hereunder, whether or not such
activity is pursued for gain, profit or other pecuniary advantage.
SECTION 5. TERMINATION.
(a) Termination Date. The Executive's employment under this Agreement
shall terminate upon the earliest to occur (the date of such occurrence being
the "Termination Date") of (i) the effective date of the Executive's resignation
(a "Resignation"), (ii) the Executive's death or Disability (an "Involuntary
Termination"), (iv) the effective date of a termination of the Executive's
employment for Cause by the Board or the President of the Company (a
"Termination for Cause"), and (v) the effective date of a termination of the
Executive's employment by the Board for reasons that do not constitute Cause (a
"Termination Without Cause"). The effective date of a Resignation shall be as
determined under Section 5(b); the effective date of an Involuntary Termination
shall be the date of death or, in the event of a Disability, the date specified
in a notice delivered to the Executive by the Company; and the effective date of
a Termination for Cause or a Termination Without Cause shall be the date
specified in a notice delivered to the Executive by the Company of such
termination.
(b) Resignation. The Executive shall give the Company at least 30 days'
prior written notice of a Resignation, with the effective date of such
Resignation specified therein. The Company may, in its discretion, accelerate
the effective date of the Resignation.
SECTION 6. EFFECT OF TERMINATION; SEVERANCE.
(a) In the event of a Termination Without Cause, the Executive or her
beneficiaries or estate shall have the right to receive the following:
(i) the unpaid portion of the Base Salary, computed on a pro rata
basis to the Termination Date;
(ii) the unpaid portion of the Base Salary for the period beginning
on the Termination Date and ending thirty (30) days from the Termination
Date., payable in the same amounts and at the same intervals as the Base
Salary was paid immediately prior to the Termination Date; provided,
however, that in the event of a breach by the Executive of Section 7, 8, 9
or 10 on or after the Termination Date, the provisions of Section 12 shall
apply;
(iii) reimbursement for any expenses for which the Executive shall
not have been previously reimbursed, as provided in Section 3(c); and
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(iv) the portion of any bonus payable in accordance with Section
3(b) for the calendar year in which such termination occurs, pro rated
through the date of such termination on a per diem basis.
(b) In the event of a Termination for Cause, an Involuntary Termination or
a Resignation, the Executive or her beneficiaries or estate shall have the right
to receive the following:
(i) the unpaid portion of the Base Salary, computed on a pro rata
basis to the Termination Date; and
(ii) reimbursement for any expenses for which the Executive shall
not have been previously reimbursed, as provided in Section 3(c).
(c) Upon any termination, neither the Executive nor her beneficiaries or
estate shall have any further rights under this Agreement or any rights arising
out of this Agreement other than as provided in Sections 6(a) and (b) above.
SECTION 7. NONDISCLOSURE AND NONUSE OF CONFIDENTIAL INFORMATION.
The Executive will not disclose or use at any time, either during the
Employment Period and for a period of five years thereafter, any Confidential
Information of which the Executive is or becomes aware, whether or not such
information is developed by him, except to the extent that such disclosure or
use is directly related to and required by the Executive's performance of duties
assigned to the Executive by the Company.
SECTION 8. INVENTIONS AND PATENTS.
The Executive agrees that all Work Product belongs to the Company. The
Executive will promptly disclose such Work Product to the Board and perform all
actions reasonably requested by the Board (whether during or after the
Employment Period) to establish and confirm such ownership (including, without
limitation, the execution and delivery of assignments, consents, powers of
attorney and other instruments) and to provide reasonable assistance to the
Company in connection with the prosecution of any applications for patents,
trademarks, trade names, service marks or reissues thereof or in the prosecution
or defense of interferences relating to any Work Product.
SECTION 9. NON-COMPETE, NON-SOLICITATION, NON-DISPARAGEMENT.
The Executive acknowledges and agrees with the Company that, during the
course of the Executive's employment with the Company, the Executive has had and
will continue to have the opportunity to develop relationships with existing
employees, customers and other business associates of the Company and its
Subsidiaries which relationships constitute goodwill of the Company, and the
Company would be irreparably damaged if the Executive were to take actions that
would damage or misappropriate such goodwill. Accordingly, the Executive agrees
as follows:
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(a) The Executive acknowledges that the Company currently conducts the
Subject Business throughout the world (the "Territory"). Accordingly, during the
term hereof and until the first anniversary of the Termination Date (the
"Non-Compete Period"), the Executive shall not, directly or indirectly, enter
into, engage in, assist, give or lend funds to or otherwise finance, be employed
by or consult with, or have a financial or other interest in, any business which
competes or could, in the reasonable judgment of the Board, be deemed to be in
competition with, at the time in question, the Company within the Territory,
whether for or by himself or as an independent contractor, agent, stockholder,
partner or joint venturer for any other Person. To the extent that the covenant
provided for in this Section 9(a) may later be deemed by a court to be too broad
to be enforced with respect to its duration or with respect to any particular
activity or geographic area, the court making such determination shall have the
power to reduce the duration or scope of the provision, and to add or delete
specific words or phrases to or from the provision. The provision as modified
shall then be enforced.
(b) Notwithstanding the foregoing, the aggregate ownership by the
Executive of no more than two percent (on a fully-diluted basis) of the
outstanding equity securities of any Person, which securities are traded on a
national or foreign securities exchange, quoted on the NASDAQ stock market or
other automated quotation system, and which Person competes with the Company (or
any part thereof) within the Territory, shall not be deemed to be a violation of
Section 9(a). In the event that any Person in which the Executive has any
financial or other interest directly or indirectly enters into a business during
the Non-Compete Period that competes with the Company within the Territory, the
Executive shall divest all of her interest (other than as permitted to be held
pursuant to the first sentence of this Section 8(b)) in such Person within 15
days after such Person enters into such business that competes with the Company
within the Territory.
(c) The Executive covenants and agrees that, during the period commencing
with the Effective Date and ending on the first anniversary of the date on which
the Executive ceases to be employed by the Company for any reason whatsoever,
the Executive will not, directly or indirectly, either for himself or for any
other Person (A) solicit any employee of the Company or any of its Subsidiaries
to terminate her or her employment with the Company or any of its Subsidiaries
or employ any such individual during her or her employment with the Company or
any of its Subsidiaries and for a period of one year after such individual
terminates her or her employment with the Company or any of its Subsidiaries,
(B) solicit any customer of the Company or any of its Subsidiaries to purchase
or distribute information, products or services of or on behalf of the Executive
or such other Person that are competitive with the information, products or
services provided by the Company or any of its Subsidiaries, or (c) take any
action that may cause injury to the relationships between the Company or any of
its Subsidiaries or any of their employees and any lessor, lessee, vendor,
supplier, customer, distributor, employee, consultant or other business
associate of the Company or any of its Subsidiaries as such relationship relates
to the Company's or any of its Subsidiaries' conduct of their business.
(d) The Executive understands that the foregoing restrictions may limit
her ability to earn a livelihood in a business which is competitive with the
business of the Company and any of its Subsidiaries, but he nevertheless
believes that he has received and will receive sufficient consideration and
other benefits as an employee of the Company and as otherwise provided hereunder
or as described in the recitals hereto to clearly justify such restrictions
which, in any
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event (given her education, skills and ability), the Executive does not believe
would prevent him from otherwise earning a living.
SECTION 10. DELIVERY OF MATERIALS UPON TERMINATION OF EMPLOYMENT.
The Executive shall deliver to the Company at the termination of the
Employment Period or at any time the Company may request all memoranda, notes,
plans, records, reports, computer tapes and software and other documents and
data (and copies thereof) relating to the Confidential Information, Work Product
or the Subject Business which he may then possess or have under her control
regardless of the location or form of such material and, if requested by the
Company, will provide the Company with written confirmation that all such
materials have been delivered to the Company.
SECTION 11. INSURANCE.
The Company may, for its own benefit, maintain "keyman" life and
disability insurance policies covering the Executive. The Executive will
cooperate with the Company and provide such information or other assistance as
the Company may reasonably request in connection with the Company obtaining and
maintaining such policies.
SECTION 12. ENFORCEMENT.
Because the Executive's services are unique and because the Executive has
access to Confidential Information and Work Product, the parties hereto agree
that money damages would be an inadequate remedy for any breach of this
Agreement. Therefore, in the event of a breach or threatened breach of this
Agreement, the Company or its successors or assigns may, in addition to other
rights and remedies existing in their favor, apply to any court of competent
jurisdiction for specific performance and/or injunctive or other relief in order
to enforce, or prevent any violations of, the provisions hereof (without posting
a bond or other security). In addition to the foregoing, and not in any way in
limitation thereof, or in limitation of any right or remedy otherwise available
to the Company, if the Executive violates any provision of the foregoing
Sections 7, 8, 9 or 10, any payments then or thereafter due from the Company to
the Executive pursuant to Section 6(a)(ii) shall be terminated forthwith and the
Company's obligation to pay and the Executive's right to receive such payments
shall terminate and be of no further force or effect, in each case without
limiting or affecting the Executive's obligations under such Sections 7, 8, 9 or
10 or the Company's other rights and remedies available at law or equity.
SECTION 13. REPRESENTATIONS.
Each party hereby represents and warrants to the other party that (a) the
execution, delivery and performance of this Agreement by such party does not and
will not conflict with, breach, violate or cause a default under any agreement,
contract or instrument to which such party is a party or any judgment, order or
decree to which such party is subject, and (b) upon the execution and delivery
of this Agreement by such party, this Agreement will be a valid and binding
obligation of such party, enforceable in accordance with its terms, except as
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enforcement hereof may be limited by any applicable bankruptcy, reorganization,
insolvency or other laws affecting creditors rights generally or by general
principles of equity. In addition, the Executive represents and warrants to the
Company that the Executive is not a party to or bound by any employment
agreement, consulting agreement, non-compete agreement, confidentiality
agreement or similar agreement with any other Person. The Company and the
Executive hereby terminate all existing employment or consulting agreements
between them, if any, to the extent such agreements may be in effect after the
date hereof.
SECTION 14. DEFINITIONS.
"Board" shall mean the board of directors of the Company.
"Business Day" shall mean any day that is not a Saturday, Sunday, or a day
on which banking institutions in New York are not required to be open.
"Cause" shall mean (i) the Executive's material breach of any of the terms
of this Agreement; (ii) the conviction of or entry of a plea of nolo contender
to a crime involving fraud, theft or dishonesty by the Executive; (iii) the
Executive's willful and continuing disregard of lawful instructions of the Board
or superiors (if any) or has engaged in conduct in clear violation of material
policies of the Company; (iv) the continued use of alcohol or drugs by the
Executive to an extent that, in the good faith determination of the Board, such
use interferes in any manner with the performance of the Executive's duties and
responsibilities; or (v) the conviction of the Executive for violating any Law
constituting a felony (including the Foreign Corrupt Practices Act of 1977).
"Confidential Information" means information that is not generally known
to the public and that is used, developed or obtained by the Company or any of
its Subsidiaries in connection with the Subject Business, including, but not
limited to, (i) information, observations, procedures and data obtained by the
Executive while employed by the Company (including those obtained prior to the
date of this Agreement) concerning the business or affairs of the Company or any
of its Subsidiaries, (ii) products or services, (iii) costs and pricing
structures, (iv) analyses, (v) drawings, photographs and reports, (vi) computer
software, including operating systems, applications and program listings, (vii)
flow charts, manuals and documentation, (viii) data bases, (ix) accounting and
business methods, (x) inventions, devices, new developments, methods and
processes, whether patentable or unpatentable and whether or not reduced to
practice, (xi) customers and customer lists, (xii) other copyrightable works,
(xiii) all production methods, processes, technology and trade secrets, and
(xiv) all similar and related information in whatever form. Confidential
Information will not include any information that has been published in a form
generally available to the public prior to the date the Executive proposes to
disclose or use such information. Confidential Information will not be deemed to
have been published merely because individual portions of the information have
been separately published, but only if all material features comprising such
information have been published in combination.
"Disability" shall mean the physical or mental inability of the Executive
(i) to substantially perform all of her duties under this Agreement for a period
of 90 consecutive days or longer or for any 90 days in any period of 365
consecutive days, or (ii) that, in the opinion of a
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physician selected by the Board (excluding the Executive if the Executive is a
member of the Board at such time) is likely to prevent the Executive from
substantially performing all of her duties under this Agreement for more than 90
days in any period of 365 consecutive days.
"Subsidiary" of the Company means and includes (i) any corporation more
than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by the Company or indirectly
through Subsidiaries and (ii) any partnership, association, joint venture or
other entity (other than a corporation) in which the Company directly or
indirectly through Subsidiaries, has more than a 50% equity interest at the
time.
"Work Product" shall mean all inventions, innovations, improvements,
technical information, systems, software developments, methods, designs,
analyses, drawings, reports, service marks, trademarks, tradenames, logos and
all similar or related information (whether patentable or unpatentable) which
relates to the Company's or any of its Subsidiaries' actual or anticipated
business, research and development or existing or future products or services
and which are conceived, developed or made by the Executive in connection with
or relating to (whether or not during usual business hours and whether or not
alone or in conjunction with any other Person) the Executive's position and
duties while employed by the Company (including those conceived, developed or
made prior to the date of this Agreement) together with all patent applications,
letters patent, trademark, tradename and service xxxx applications or
registrations, copyrights and reissues thereof that may be granted for or upon
any of the foregoing.
SECTION 15. GENERAL PROVISIONS.
(a) Severability. It is the desire and intent of the Parties hereto that
the provisions of this Agreement be enforced to the fullest extent permissible
under the laws and public policies applied in each jurisdiction in which
enforcement is sought. Accordingly, if any particular provision of this
Agreement shall be adjudicated by a court of competent jurisdiction to be
invalid, prohibited or unenforceable for any reason, such provision, as to such
jurisdiction, shall be ineffective, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of this
Agreement or affecting the validity or enforceability of such provision in any
other jurisdiction. Notwithstanding the foregoing, if such provision could be
more narrowly drawn so as not to be invalid, prohibited or unenforceable in such
jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
(b) Notices. All notices, requests, demands, claims and other
communications hereunder shall be in writing and sufficient if (i) delivered
personally, (ii) delivered by certified United States Post Office mail, return
receipt requested, (iii) telecopied or (iv) sent to the recipient by a
nationally-recognized overnight courier service (charges prepaid) and addressed
to the intended recipient as set forth below:
(a) if to the Executive, to:
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with a copy to:
(b) if to the Company, to:
Greenfield Online, Inc.
00 Xxxxx Xxxx
Xxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx, President and CEO
Telecopier: (000) 000-0000
with copies to:
General Counsel
Greenfield Online, Inc.
00 Xxxxx Xxxx
Xxxxxx, Xxxxxxxxxxx 00000
Telecopier: (000) 000-0000
or such other address as the recipient party to who notice is to be given may
have furnished to the other party in writing in accordance herewith. Any such
communication shall deemed to have been delivered and received (a) in the case
of personal delivery, on the date of such delivery, (b) in the case of delivery
by mail, on the third Business Day following such mailing, (c) if telecopied, on
the date telecopied, and (d) in the case of delivery by nationally-recognized,
overnight courier, on the Business Day following dispatch.
(c) Entire Agreement. This Agreement and the documents expressly referred
to herein embody the complete agreement and understanding among the parties and
supersede and preempt any prior understandings, agreements or representations by
or among the parties, written or oral, which may have related to the subject
matter hereof in any way.
(d) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
(e) Successors and Assigns. Except as otherwise provided herein, this
Agreement shall bind and inure to the benefit of and be enforceable by the
Executive and the Company and their respective successors, assigns, heirs,
representatives and estate, as the case may be; provided, however, that the
obligations of the Executive under this Agreement shall not be assigned without
the prior written consent of the Company.
(f) Amendment and Waiver. The provisions of this Agreement may be amended
and waived only with the prior written consent of the Company and the Executive,
and no course of conduct or failure or delay in enforcing the provisions of this
Agreement shall affect the validity, binding effect or enforceability of this
Agreement or any provision hereof.
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(g) Governing Law/Venue. This Agreement shall be governed by and construed
in accordance with the domestic laws of the State of Connecticut without giving
effect to any choice or conflict of law provision or rule that would cause the
application of the laws of any jurisdiction other than the State of Connecticut.
The parties agree that any action to enforce the terms of this Agreement shall
be brought in State of Federal Court located in Fairfield County Connecticut.
(h) Descriptive Headings; Nouns and Pronouns. Descriptive headings are for
convenience only and shall not control or affect the meaning or construction of
any provision of this Agreement. Whenever the context may require, any pronouns
used herein shall include the corresponding masculine, feminine or neuter forms,
and the singular form of nouns and pronouns shall include the plural and
vice-versa.
(i) Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(j) Effectiveness. This Agreement shall become effective when executed by
both parties (the "Effective Date").
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first written above.
GREENFIELD ONLINE, INC EXECUTIVE
By: ________________________________ By: ________________________________
Name: Xxxx Xxxxxx
Title: Date:
Date:
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