EMPLOYMENT AGREEMENT (the "Agreement"), dated as of November 18, 1996, by
and between MEDIALINK WORLDWIDE INCORPORATED, a Delaware corporation with
offices at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Corporation"), and
XXXXX XXXXX, an individual residing at 00 Xxxxxx Xxxx Xxxxxx Xx, Xxxxxx X00XX
(xxx "Employee").
W I T N E S S E T H:
WHEREAS, the Corporation desires to continue the services of the Employee
upon the terms and conditions hereinafter set forth; and
WHEREAS, the Employee desires to render services to the Corporation upon
the terms and conditions hereinafter set forth.
NOW, WHEREFORE, the parties mutually agree as follows:
Section 1. Employment. The Corporation hereby employs the Employee and the
Employee accepts such employment, as an executive of the Corporation, subject to
the terms and conditions set forth in this Agreement.
Section 2. Duties. The Employee shall be employed as Senior Vice President
- International. The Employee shall properly perform such duties as may be
assigned to him from time to time by the Corporation's Chief Executive Officer
or the Board of Directors of the Corporation as the case may be. During the term
of this Agreement, the Employee shall devote all of his available business time
to the performance of his duties hereunder.
Section 3. Term of Employment. The term of the Employee's employment shall
commence on November 29, 1996 and shall continue until November 29, 1998 or
until terminated pursuant to Section 5 hereof.
Section 4. Compensation of Employee.
4.1. Compensation. The Corporation shall pay to the Employee as annual
compensation for his services hereunder a salary ("Salary") in an amount equal
to Eighty-Eight Thousand (88,000 pounds) Pounds Sterling. The Salary shall be
payable monthly less such deductions as shall be required to be withheld by
applicable law and regulations. The Employee's Salary shall be reviewed annually
during the term and in no event shall be decreased during the term.
4.2. Bonus. The Employee shall be entitled to receive a bonus (the
"Bonus") in accordance with the provisions of this Section 4.2 and the annual
goals set by the Compensation Committee. The goals set by the Compensation
Committee shall be consistent with the goals set by the Compensation Committee
in prior years. Such goals shall be based on turnover and income/loss of the
Corporation's European operation. The amount of the Bonus shall be equal to the
sum of (i) five (5%) percent of the excess over the agreed revenue target and
(ii) five (5%) percent of the improvement over the agreed net income/loss
target; provided, however, once the Corporation's European operation has
achieved profitability, the total Bonus for each year shall not exceed five (5%)
percent of the Pre-Tax Net Profits, as defined herein. Subject to the provisions
of the following sentence, the Bonus shall be paid in cash. Notwithstanding the
provisions of the preceding two sentences, the Employee shall not be entitled to
receive the bonus in the event either (i) of the termination of this Agreement
For Cause (as hereinafter defined), or (ii) the Employee wrongfully fails to
provide the services contemplated hereby, in either case at any time prior to
the payment of the bonus. The Employee shall be entitled to receive the bonus in
accordance with the terms and provisions of this Agreement in the event of
either (i) the death or Disability (as hereinafter defined) of the Employee, or
(ii) the Corporation's
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termination of this Agreement which is not a termination For Cause. The term
"Pre-Tax Net Profits" as used in this Agreement shall mean the net profits of
the Corporation relating only to its European operation for a fiscal year prior
to (i) the payment or provision for any Federal, state or local income or other
taxes; and (ii) the amount of the Bonus of the Employee for such fiscal year, as
computed by the Corporation's Accountants.
4.3. Expenses. The Corporation shall pay or reimburse the Employee for
all reasonable and necessary business, travel or other expenses incurred by him
with the prior consent of the Corporation, upon proper documentation thereof,
which may be incurred by him in connection with the rendition of the services
contemplated hereunder. The Corporation shall also contribute Fifty (50 pounds)
Pounds Sterling per month to the Employee's television and cable expenses.
4.4. Benefits. During the term of this Agreement, the Employee shall
be entitled to participate in such option, profit sharing and disability plans
which the Corporation provides to its employees. The Corporation shall, in lieu
of having the Employee participate directly in the Corporation's pension plan,
make pension payments directly to the Employee's existing pension plan in an
amount equal to the payments the Corporation would have made if the Employee was
participating directly in the Corporation's pension plan. The Employee shall not
be entitled to participate in the Corporation's hospitalization or group health
benefit plans. Provided that the Corporation files a registration statement on
Form S-1 covering the registration of shares of its Common Stock, $.01 par value
("Common Stock"), the Corporation intends to file a registration statement on
Form S-8 to register the shares of Common Stock underlying the stock options
granted pursuant to its option plans. In the event such registration statement
on Form S-8 is filed, the Corporation agrees to use its best efforts
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to keep such registration statement on Form S-8 in full force and effect. The
Corporation shall contribute One Hundred Fifty (150 pounds) Pounds Sterling per
month to the Employee's health insurance premiums.
Section 5. Termination.
5.1. Termination of Employment. This Agreement shall terminate upon
the death, Disability, as hereinafter defined, termination of employment of the
Employee For Cause, as hereinafter defined, termination of the employment of
Employee without cause or because Employee wrongfully leaves his employment
hereunder.
5.2. Termination For Cause. In the event of a termination For Cause or
because Employee wrongfully leaves his employment hereunder, the Corporation
shall pay Employee all accrued and unpaid Salary through the date of
termination.
5.3. Termination Without Cause. In the event of a termination without
cause, the Employee shall be entitled to continue to participate in the
disability plans of the Corporation on the same terms and conditions as
immediately prior to his termination and shall receive his Salary, both for a
period equal to the earlier of (i) the date the Employee commences employment
elsewhere; (ii) six (6) months; or (iii) the date the term would have expired
pursuant to Section 3 of this Agreement had the Employee not been terminated.
5.4. Termination Upon Death. In the event of a termination upon the
death of Employee, the Corporation shall pay to the Employee, any person
designated by the Employee in writing or if no such person is designated, to his
estate, as the case may be, the Salary which would otherwise be payable to the
Employee for a period of six (6) months from the date of such death.
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5.5. Termination Upon Disability. In the event of a termination upon
the Disability of Employee, the Corporation shall pay to the Employee or any
person designated by the Employee, (i) during the first month immediately after
the termination of employment due to such Disability, the Salary which would
otherwise by payable to the Employee and (ii) during the second and third months
immediately after the termination of employment due to such Disability, the
difference between the Salary which would otherwise be payable to the Employee
and the disability insurance payments received by Employee for such period.
5.6. Definition of "For Cause". As used herein, the term "For Cause"
shall mean (i) Employee's indictment, plea or conviction in a court of law of
any crime or offense involving willful misappropriation of money or other
property or any other crime involving moral turpitude which constitutes felony,
whether or not involving the Corporation, or (ii) disobedience of a directive
from the Chief Executive Officer or Board of Directors of the Corporation
consistent with Employee's duties hereunder or (iii) breach of his
responsibilities under this Agreement.
Section 6. Disability
6.1. Definition. In the event the Employee is mentally or physically
incapable or unable to perform his regular and customary duties of employment
with the Corporation for a period of seventy-five (75) days in any one hundred
twenty (120) day period during the term, the Employee shall be deemed to be
suffering from a "Disability".
6.2. Payment During Disability. In the event the Employee is unable to
perform his duties hereunder by reason of a disability, which disability does
not constitute a Disability, the Corporation shall continue to pay the Employee
his Salary and benefits during the continuance of such disability.
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Section 7. Vacations and Personal Days. The Employee shall be entitled to
vacation and personal days in accordance with Corporation policy. The Employee's
Salary shall be paid in full during his vacation and personal days. The Employee
shall take his vacation at such time or times as the Employee and the
Corporation shall determine is mutually convenient.
Section 8. Disclosure of Confidential Information.
(a) The Employee hereby acknowledges that the principal business of
the Corporation is the production of video and audio public relations materials
for distribution to news media and the distribution by satellite or other means
to television and radio stations and news media services; distribution of public
relations text, audio and video to news media and the general public via
satellite, cassette, wire or other means; distribution of press releases by mail
and facsimile; the maintenance of databases of media contacts for and on behalf
of clients; analysis and written appraisal of public relations and public
affairs campaigns as determined through press clipping review, either on paper,
video or audio tape or electronic database searches and such other businesses as
the Corporation may conduct from time to time (the "Business"). Employee
acknowledges that he will be acquiring confidential information concerning the
Corporation and the Business and that, among other things, his knowledge of the
Business will be enhanced through his employment by the Corporation. Employee
acknowledges that such information is of great value to the Corporation, is the
sole property of the Corporation, and has been and will be acquired by him in
confidence. In consideration of the obligations undertaken by the Corporation
herein, Employee will not, at any time, during or after the term of this
Agreement, reveal, divulge or make known to any person, any information which is
treated as confidential by the Corporation and not otherwise in the public
domain or previously known to him.
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(b) The provisions of this Section 8 shall survive Employee's
employment hereunder.
Section 9. Covenant Not To Compete.
(a) Employee recognizes that the services to be performed by him
hereunder are special, unique and extraordinary. The parties confirm that it is
reasonably necessary for the protection of the Corporation that Employee agrees,
and, accordingly, Employee does hereby agree, that he will not, directly or
indirectly, in the Territory, as hereinafter defined, at any time during the
Restricted Period, as hereinafter defined:
(i) engage in the Business for his account or render any services
which constitute engaging in the Business, in any capacity to any entity;
or become interested in any entity engaged in the Business either on his
own behalf or as an officer, director, stockholder, partner, principal,
consultant, associate, employee, owner, agent, creditor, independent
contractor, or co-venturer of any third party or in any other relationship
or capacity; or
(ii) employ or engage, or cause to authorize, directly or
indirectly, to be employed or engaged, for or on behalf of himself or any
third party, any employee, representative or agent of the Corporation; or
(iii) solicit, directly or indirectly, on behalf of himself or
any third party, any client or vendor of the Corporation and its
affiliates; or
(iv) have an interest as an owner, lender, independent
contractor, co-venturer, partner, participant, associate or in any other
capacity, render services to or participate in the affairs of, any business
which is competitive with, or substantially similar to, the Business
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of the Corporation and its affiliates as presently conducted and as may be
conducted by the Corporation during the Restricted Period.
(b) If any of the restrictions contained in this Section 9 shall be
deemed to be unenforceable by reason of the extent, duration or geographical
scope thereof, or otherwise, then after such restrictions have been reduced so
as to be enforceable, in its reduced form this Section shall then be enforceable
in the manner contemplated hereby.
(c) This Section 9 shall not be construed to prevent Employee from
owning, directly and indirectly, in the aggregate, an amount not exceeding two
percent (2%) of the issued and outstanding voting securities of any class of any
corporation whose voting capital stock is traded on a national securities
exchange or in the over-the-counter market.
(d) Notwithstanding anything to the contrary set forth in this Section
9, the Employee shall not be prohibited from rendering services for news
organizations or public relations agencies; provided, however, that in rendering
such services, the Employee may not be involved, directly or indirectly, in (i)
the distribution of video, audio or print releases that are competitive with, or
substantially similar to, the Business; (ii) the production of video or audio
releases that are competitive with, or substantially similar to, the Business;
or (iii) the research or analysis of public relations and public affairs
campaigns as determined through press clipping review, either on paper, video or
audio tape or electronic database searches.
(e) The term "Restricted Period", as used in this Section 9, shall
mean the earlier of (i) the term of this Agreement plus one (1) year; (ii) one
(1) year after the Employee is terminated without cause or (iii) two (2) years
after the Employee is terminated For Cause. Employee acknowledges that the
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Corporation markets its Business worldwide and therefore, the term "Territory"
as used herein shall mean the entire world.
(f) The provisions of this Section 9 shall survive the termination of
Employee's employment hereunder and until the end of the Restricted Period as
provided in Section 9 (e) hereof.
Section 10. Rights and Remedies Upon Breach of Sections 8 or 9.
10.1. Return of Benefits. If the Employee breaches, or threatens to
commit a breach of, any of the provisions of Sections 8 or 9 (the "Restrictive
Covenants"), the Corporation shall have the right and remedy to require the
Employee to account for and pay over to the Corporation all compensation,
profits, monies, accruals, increments or other benefits (collectively,
"Benefits") derived or received by him as the result of any transactions
constituting a breach of the Restrictive Covenants, and the Employee shall
account for and pay over such Benefits to the Corporation. In addition, if the
Employee breaches or threatens to commit a breach of any of the Restrictive
Covenants, (i) the Employee's unvested stock options shall immediately lapse and
(ii) the Corporation shall have the right to purchase from the Employee the
Employee's vested stock options for the book value of the shares of Common Stock
underlying such vested options less the exercise price of such vested options.
The Corporation may set off any amounts due to the Corporation under this
Section 10.1 against any amounts owed to the Employee by the Corporation.
10.2. Injunctive Relief. Employee acknowledges that the services to be
rendered under the provisions of this Agreement are of a special, unique and
extraordinary character and that it would be difficult or impossible to replace
such services. Accordingly, Employee agrees that any breach or threatened breach
by him of Sections 8 or 9 of this Agreement shall entitle the Corporation, in
addition to all other
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legal remedies available to it, to apply to any court of competent jurisdiction
to enjoin such breach or threatened breach without posting a bond or showing
special damages. The parties understand and intend that each restriction agreed
to by Employee hereinabove shall be construed as separable and divisible from
every other restriction, that the unenforceability of any restriction shall not
limit the enforceability, in whole or in part, of any other restriction, and
that one or more of all of such restrictions may be enforced in whole or in part
as the circumstances warrant. In the event that any restriction in this
Agreement is more restrictive than permitted by law in the jurisdiction in which
the Corporation seeks enforcement thereof, such restriction shall be limited to
the extent permitted by law.
Section 11. Termination of Consulting Agreement. In consideration of the
parties entering into this Agreement, the consulting agreement 1994, dated March
1, 1994, by and between the Corporation and Xxxxx Partnership, an affiliate of
Employee, shall be terminated simultaneously with the commencement of the term
hereunder.
Section 12. Miscellaneous.
12.1. Assignment. The Employee may not assign or delegate any of his
rights or duties under this Agreement.
12.2. Entire Agreement. This Agreement constitutes and embodies the
full and complete understanding and agreement of the parties with respect to the
Employee's employment by the Corporation, supersedes all prior understandings
and agreements, if any, whether oral or written, between the Employee and the
Corporation and shall not be amended, modified or changed except by an
instrument in writing executed by the party to be charged. The invalidity or
partial invalidity of one or more provisions of this Agreement shall not
invalidate any other provision of this Agreement. No waiver by either party of
any provision or condition to
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be performed shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or any prior or subsequent time.
12.3. Binding Effect. This Agreement shall inure to the benefit of, be
binding upon and enforceable against, the parties hereto and their respective
successors and permitted assigns.
12.4. Captions. The captions contained in this Agreement are for
convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
12.5. Notices. All notices, requests, demands and other communications
required or permitted to be given hereunder shall be in writing and shall be
deemed to have been duly given when personally delivered or sent by certified
mail, postage prepaid, or overnight delivery to the party at the address set
forth above or to such other address as either party may hereafter give notice
of in accordance with the provisions hereof.
12.6. Governing Law. This Agreement shall be governed by and
interpreted under the laws of the State of New York applicable to contracts made
and to be performed therein without giving effect to the principles of conflict
of laws thereof. Except in respect of any action commenced by a third party in
another jurisdiction, the parties hereto agree that any legal suit, action, or
proceeding against them arising out of or relating to this Agreement shall be
brought exclusively in the United States Federal Courts or New York County
Supreme Court, in the State of New York. The parties hereto hereby accept the
jurisdictions of such courts for the purpose of any such action or proceeding
and agree that venue for any action or proceeding brought in the State of New
York shall lie in the Southern District of New York or Supreme Court, New York
County, as the case may be. Each of the parties hereto hereby irrevocably
consents to
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the service of process in any action or proceeding in such courts by the mailing
thereof by United States registered or certified mail postage prepaid at its
address set forth herein.
12.7. Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date set forth above.
MEDIALINK WORLDWIDE INCORPORATED
By: /s/ J. Xxxxxx XxXxxxxxx
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/s/ Xxxxx Xxxxx
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XXXXX XXXXX
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