Exhibit 10.8
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement") is being made as of the 14th day
of March 1997 between DATA BROADCASTING CORPORATION, a Delaware corporation
(the "Company"), and XXXX X. XXXXXXXXX, having its principal offices at 0000
Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000 (the "Executive"), an individual
residing at 00 Xxxx Xxxx, Xxxx Xxxxxx, Xxx Xxxxxx 00000.
WITNESSETH:
WHEREAS, the Company desires to continue the employment of the Executive
and the Executive desires to be employed by the Company as its President and
Chief Operating Officer upon the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual premises and agreements
contained herein, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Nature of Employment; Term of Employment. The Company hereby
employs the Executive and the Executive agrees to serve the Company as its
President and Chief Operating Officer and, if requested, its Chief Financial
Officer, upon the terms and conditions contained herein, for a term commencing
as of January 1, 1997 and continuing until December 31, 2000 (the "Employment
Term"); provided, however, that unless either the Company or the Executive
gives notice that it or he desires to terminate this Agreement at least sixty
(60) days prior to the date of its termination, this Agreement (including this
Section 1) shall automatically be renewed for additional successive periods of
one (1) year.
2. Duties and Powers as Employee. During the Employment Term, the
Executive shall be employed by the Company as its President and Chief
Operating Officer. The Executive agrees to devote such time and efforts to
the performance of his duties under this Agreement as shall be reasonably
necessary. In the performance of his duties, the Executive shall be subject
to the direction of the Board of Directors of the Company. The Executive
shall be available to travel as the needs of the business require.
3. Compensation.
(a) As compensation for his services hereunder, the Company shall
pay the Executive, during the Employment Term, a base salary (the "Base
Salary") payable in equal semi-monthly installments at the annual rate of
$275,000 for the year ended December 31, 1997, $300,000 for the year ended
December 31, 1998, and $325,000 for the year ended December 31, 1999 and for
each year thereafter. Additionally, the Executive shall participate in the
present or future employee benefit plans of the Company provided that he meets
the eligibility requirements therefor.
(b) In addition to the Base Salary provided herein, the Executive
shall receive as a performance bonus payment (a "Bonus"), on an annual basis,
a sum equal to up to 100% of the Executive's Base Salary for the fiscal year
then ended. The exact percentage shall be determined in the absolute sole
discretion of the Compensation Committee of the Board of Directors of the
Company based upon an evaluation of the performance of the Executive and the
Company during the previous fiscal year. The Bonus shall be paid to the
Executive within ninety (90) days after the end of the Company's fiscal year
notwithstanding that such date may be after the expiration of the Employment
Term.
(c) In addition, the Company shall request that the Stock Option
Committee of the Board of Directors of the Company issue the Executive
incentive stock options ("Options") to acquire 100,000 shares of common stock
of the Company effective as of January 2, 1997. The Options shall have an
exercise price equal to the fair market value on the trading day preceding the
date of grant, and shall vest in equal installments over three years, subject
to earlier vesting as described in this Agreement and in the Company's Stock
Option Plan. It is also anticipated that the Executive will be granted
additional options effective as of January 2, 1999 as shall be determined in
the absolute sole discretion of the Compensation Committee of the Board of
Directors of the Company.
4. Expenses; Vacations. The Executive shall be entitled to
reimbursement for reasonable travel and other out-of-pocket expenses
necessarily incurred in the performance of his duties hereunder, upon
submission and approval of written statements and bills in accordance with the
then regular procedures of the Company. The Executive shall be entitled to
reasonable vacation time in accordance with then regular procedures of the
Company governing executives as determined from time to time by the Company's
Board of Directors but in no event less than twenty-five days per year.
5. Representations and Warranties of Employee. The Executive
represents and warrants to the Company that (a) he is under no contractual or
other restriction or obligation which is inconsistent with the execution of
this Agreement, the performance of his duties hereunder, or the other rights
of the Company hereunder; and (b) he is under no physical or mental disability
that would hinder his performance of duties under this Agreement.
6. Non-Competition. The Executive agrees that he will not (a) during
the period he is employed under this Agreement engage in, or otherwise
directly or indirectly be employed by, or act as a consultant or lender to, or
be a director, officer, employee, owner, or partner of, any other business or
organization that is or shall then be competing with the Company, and (b) for
a period of two (2) years after he ceases to be employed by the Company under
this Agreement, directly or indirectly compete with or be engaged in the same
business as the Company, or be employed by, or act as consultant or lender to,
or be a director, officer, employee, owner, or partner of, any business or
organization which, at the time of such cessation, competes with or is engaged
in the same business as the Company, except that in each case the provisions
of this Section 6 will not be deemed breached merely because the Executive
owns not more than five percent (5.0%) of the outstanding common stock of a
corporation, if, at the time of its acquisition by the Executive, such stock
is listed on a national securities exchange, is reported on NASDAQ, or is
regularly traded in the over-the-counter market by a member of a national
securities exchange.
7. Confidential Information. All confidential information which the
Executive may now possess, may obtain during the Employment Term, or may
create prior to the end of the period he is employed by the Company under this
Agreement, relating to the business of the Company or of any customer or
supplier of the Company shall not be published, disclosed, or made accessible
by him to any other person, firm, or corporation during the Employment Term or
any time thereafter without the prior written consent of the Company. The
Executive shall return all tangible evidence of such confidential information
to the Company prior to or at the termination of his employment.
8. Termination.
(a) Notwithstanding anything herein contained, if on or after the
date hereof and prior to the end of the Employment Term, the Executive is
terminated "For Cause" (as defined below) then the Company shall have the
right to give notice of termination of Employee's services hereunder as of a
date to be specified in such notice, and this Agreement shall terminate on the
date so specified. Termination "For Cause" shall mean the Executive shall
(i) be convicted of a felony crime, (ii) commit any act or omit to take any
action in bad faith and to the detriment of the Company, (iii) commit an act
of moral turpitude, (iv) commit an act of fraud against the Company, or (v)
materially breach any term of this Agreement and fail to correct such breach
within thirty (30) days after commission thereof.
(b) In the event that the Executive shall be physically or
mentally incapacitated or disabled or otherwise unable fully to discharge his
duties hereunder for a period of six months, then this Agreement shall
terminate upon 90 days' written notice to the Executive, and the Executive
shall be entitled to receive a disability benefit in the form of a lump sum
distribution (with no present value adjustment) equal to the Base Salary at
the rate provided in Section 3 plus the Bonus (fixed at the rate of 50% of
such Base Salary) for the greater of (i) two (2) years, notwithstanding that
such two-year period might extend beyond the Employment Term or (ii) the
remainder of the Employment Term. In such case any of the Executive's issued
but unvested options (including the Options) shall vest immediately upon such
termination.
(c) In the event that the Executive shall die, then this
Agreement shall terminate on the date of the Executive's death, and no further
compensation shall be payable to the Executive, except as may otherwise be
provided under any insurance policy or similar instrument. In such case any
of the Executive's issued but unvested options (including the Options) shall
vest immediately upon such termination.
(d) In the event that this Agreement is terminated "For Cause"
pursuant to Section 9(a), then the Executive shall be entitled to receive only
his Base Salary at the rate provided in Section 3 to the date on which
termination shall take effect.
(e) In the event this Agreement is terminated by the Company other
than the reasons set forth in Sections 9(a) or 9(b) or upon a Section 9 Event,
the Executive shall be entitled to receive severance pay consisting of a lump
sum distribution (with no present value adjustment) equal to the Base Salary
at the
rate provided in Section 3 plus the Bonus (fixed at the rate of 50% of such Base
Salary) for the greater of (i) two (2) years, notwithstanding that such two-year
period might extend beyond the Employment Term or (ii) the remainder of the
Employment Term. In such case any of the Executive's issued but unvested
options (including the Options) shall vest immediately upon such termination.
In addition, in such case the two (2) year period described in Section 6(b)
of this Agreement shall be reduced to one (1) year.
(f) Nothing contained in this Section 8 shall be deemed to limit any
other right the Company may have to terminate Employee's employment hereunder
upon any ground permitted by law.
9. Change of Control.
In the event of a future disposition of (or including) the properties
and business of the Company, substantially as an entirety, by merger,
consolidation, sale of assets, or otherwise, the Company shall assign this
letter and all of its rights and obligations hereunder to the acquiring or
surviving corporation, such corporation shall assume in writing all of the
obligations of the Company, and the Company (in the event and so long as
it remains in business as an independent going enterprise) shall remain
liable for the performance of its obligations hereunder in the event of an
unjustified failure of the acquiring corporation to perform its obligations
under this letter.
Notwithstanding the foregoing, in any such event, or in the event of the
acquisition by any person or group of persons acting in concert (other than
Xxxxx X. Xxxxxxx or Xxxx X. Xxxxxxxxxxx) of shares of capital stock of
the Company
enabling such person or persons to cast 20% or more of the votes entitled to be
voted at any meeting to elect directors (each such event of disposition or
acquisition of stock being hereinafter referred to as a "Section 9 Event"), the
Executive or the Company shall have the right to terminate this Agreement by
written notice given within six (6) months of the date (the "Section 9 Date") of
such Section 9 Event. Upon such termination, the Executive shall receive
severance pay consisting of a single lump sum distribution (with no present
value adjustment) equal to the Base Salary as provided in Section 3 plus
the Bonus (fixed at the rate of 50% of such Base Salary) for the greater of
(i) two (2) years, notwithstanding that such two-year period might extend
beyond the Employment Term or (ii) the remainder of the Employment Term.
Upon such Section 9 Event, any of the Executive's issued but unvested
options (including the options described in this Agreement) shall vest
immediately upon such Section 9 Event. In addition, upon such Section 9
Event the Executive shall receive an amount equal to the per share price paid
to the stockholders of the Company less the Pre-Announcement Price multiplied
by 100,000.
10. Survival. The covenants, agreements, representations, and
warranties contained in or made pursuant to this Agreement shall survive
the Executive's termination of employment, irrespective of any investigation
made by or on behalf of any party.
11. Modification. This Agreement sets forth the entire understanding of
the parties with respect to the subject matter hereof, supersedes all existing
agreements between them concerning such subject matter, and may be modified only
by a written instrument duly executed by each party.
12. Notices. Any notice or other communication required or permitted to
be given hereunder shall be in writing and shall be mailed by certified mail,
return receipt requested, or delivered against receipt to the party to whom it
is to be given at the address of such party set forth in the preamble to this
Agreement (or to such other address as the party shall have furnished in writing
in accordance with the provisions of this Section 12). In the case of a notice
to the Company, a copy of such notice (which copy shall not constitute notice)
shall be delivered to Camhy Karlinsky & Xxxxx LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000-0000, Attn. Xxxx X. Annex, Esq. Notice to the estate of the
Executive shall be sufficient if addressed to the Executive provided in this
Section 12. Any notice or other communication given by certified mail shall
be deemed given at the time of certification thereof, except for a notice
changing a party's address which shall be deemed given at the time of receipt
thereof.
13. Waiver. Any waiver by either party of a breach of any provision of
this Agreement shall not operate as or be construed to be a waiver of any other
breach of such provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any term
of this Agreement on one or more occasions shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. Any waiver must be in writing.
14. Binding Effect. The Executive's rights and obligations under this
Agreement shall not be transferable by assignment or otherwise, such rights
shall not be subject to encumbrance or the claims of the Executive's
creditors, and any attempt to do any of the foregoing shall be void. The
provisions of this Agreement shall be binding upon and inure to the benefit of
the Executive and his heirs and personal representatives, and shall be binding
upon and inure to the benefit of the Company and its successors and those who
are its assigns under Section 9.
15. Headings. The headings in this Agreement are solely for the
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
16. Counterparts; Governing Law. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. It shall be
governed by, and construed in accordance with, the laws of the State of Wyoming,
without given effect to the rules governing the conflicts of laws.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first written above.
DATA BROADCASTING CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Co-Chairman
/s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
