EXHIBIT 10.21
THIS AGREEMENT is made effective as of the 1st day of January, 2005
BETWEEN:
(1) NARROWSTEP INC, a Delaware corporation, having an office at 35F ▇▇▇ ▇ ▇▇▇▇
▇▇., ▇▇▇ ▇▇▇▇, ▇▇ (the "Company");
AND
(2) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, an individual residing at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ (the "Employee," and together with the Company, the "Parties").
THE PARTIES AGREE as follows:
1 (A) Definitions
In this Agreement, unless otherwise defined herein or the context otherwise
requires, the following words or expressions have the following meanings:
WORDS AND EXPRESSIONS MEANING:
"Affiliate" means, with respect to any specified Person, any other Person that
directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with such specified Person. As used in
this definition, the term "control"(including the terms "controlled by" and
"under common control with") means, with respect to the relationship between or
among two or more Persons, the possession, directly or indirectly, of the power
to direct or cause the direction of the affairs of management of a Person,
whether through the ownership of voting securities, as trustee or executor, by
contract or otherwise, including, without limitation, the ownership, directly or
indirectly, of securities having the power to elect a majority of the board of
directors or similar body governing the affairs of such Person.
the "Board" means the current or future Board of Directors of the Company.
"Confidential Information" means information relating to the business, products,
affairs and finances of the Company or of any Group Company or of any of its or
their suppliers, clients or customers that is now or hereafter confidential to
it or to them or treated by it or them as such and trade secrets (including,
without limitation, technical data and know-how) relating to the business of the
Company or of any Group Company or of any of its or their suppliers, clients or
customers;
the "Employment" means the Employee's employment with the Company;
the "Group" means the Company and the Group Companies;
"Group Company" means any company that is now or hereafter an Affiliate of the
Company;
"Permitted Activities" means those activities in which the Employee is permitted
to be engaged in addition to his activities as a director and an employee of the
Company, as set out in Schedule 2 annexed hereto and made a part hereof;
"Person" means any corporation, association, partnership, limited liability
company, organization, business, other entity, individual, government or
political subdivision thereof or governmental agency.
the "Salary" means the salary referred to in clause 6(A).
(B) References to clauses and schedules are, unless otherwise stated, to clauses
of and schedules to this Agreement.
(C) The headings to the clauses are for convenience only and shall not affect
the construction or interpretation of this Agreement.
2. EMPLOYMENT
(A) Commencing on January 1, 2005, the Company employs the
Employee and the Employee accepts employment, in the capacity
set out in Schedule 1 annexed hereto and made a part hereof
and/or in such other capacity as the Company from time to time
reasonably directs, upon the terms and subject to the conditions
of this Agreement.
3. DURATION OF THE EMPLOYMENT
(A) The Employment under this Agreement shall commence on
January 1, 2005 and shall continue until terminated pursuant to
the terms of this Agreement. During the first 6 months of the
Employment, either Party may terminate this Agreement by giving
to the other not less than 3 months' advance written notice of
termination. Thereafter, either Party may terminate this
Agreement by giving the other not less than 6 months' advance
written notice of termination. Subject to Board approval,
following July 1, 2006, the mutual notice period will increase
to 12 months' advance written notice. Employee will not be
required to perform services for the Company following service
of notice of termination by the Company and may obtain
alternative employment during the notice period, subject to the
restrictions contained in this Agreement. Company will remain
liable for full payment of salary and benefits during the notice
period. Notwithstanding the preceding sentence, to the extent
prohibited by the terms of the applicable benefit plans and
programs, Company will not be required to provide benefits
during the notice period; provided, however, in the event that
the continuation of medical insurance benefits are prohibited
during the notice period, then, subject to Employee's timely
election of COBRA coverage and provided that Employee continues
to make contributions to such continuation coverage equal to the
Employee's contribution amount to medical insurance in effect
immediately preceding the date of notice of termination, the
Company shall pay the remaining portion of Employee's healthcare
continuation payments under COBRA during the notice period,
unless Employee becomes eligible to obtain alternate healthcare
coverage from a new employer during the notice period, in which
case the Company's obligation to contribute to Employee's cost
of COBRA coverage shall cease. Employee understands that if
Employee wishes to obtain COBRA coverage after the notice
period, Employee must pay all costs and fees for such additional
coverage in accordance with COBRA.
(B) At any time during any period of notice of termination
(whether given by the Company or the Employee), the Company
shall be under no obligation to assign any duties to the
Employee and shall be entitled to exclude him from its premises.
(C) The Employee's period of continuous employment with the
Company began on 01/01/2005. The Employment is with the Company
and is not continuous with any previous employment with any
previous employer.
(D) The Employee represents and warrants that he is not bound by
or subject to any court order, agreement, arrangement or
undertaking which in any way restricts or prohibits him from
entering into this Agreement or from performing his duties under
it.
4. SCOPE OF THE EMPLOYMENT
(A) During the Employment the Employee shall:
(i) devote the whole of his time, attention and skill to
the business and affairs of the Company both during
normal business hours and during such additional hours
as are necessary for the proper performance of his
duties or as the Board may reasonably require from time
to time, subject to the Employee's ability to carry out
Permitted Activities to the extent set out in Schedule 2
attached hereto and made a part hereof;
(ii) faithfully and diligently perform such duties and
exercise such powers consistent with his position as may
from time to time be assigned to or vested in him by the
Board to a standard that is acceptable to the Board;
(iii) obey the reasonable and lawful directions of the
Board; and
(iv) comply with all the Company's rules, regulations,
policies and procedures from time to time in force.
5. PLACE OF WORK
(A) The Employee's place of work will initially be from his
Princeton, New Jersey residence, but the Company may require the
Employee to undertake reasonable travel (both within the United
States and abroad) and to work from Company's offices at 35F ▇▇▇
▇ ▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇, ▇▇ or at such other location within a
commuting time not greater than the commuting time between
Princeton, New Jersey and Company's offices in New York, NY.
6. REMUNERATION.
(A) For all services rendered by the Employee in any capacity
during the Employment (including, without limitation, services
as an officer, director or member of any committee of the
Company or any Group Company), the Company shall pay to the
Employee a salary at the rate set out in Schedule 1, which
Salary shall be payable, in arrears, in accordance with the
Company's normal payroll practices (but in no event less
frequently than semi-monthly).
(B) Employee acknowledges that all payments to the Employee
under this Agreement shall be subject to applicable withholdings
and other customary payroll deductions. The Employee also agrees
to make any payment to the Company of any legitimate sums owed
by him to the Company upon demand by the Company at any time.
7. EXPENSES
(A) The Company shall promptly reimburse the Employee in respect
of expenses reasonably incurred by him in the proper performance
of his duties, subject to his providing such receipts or other
appropriate evidence as the Company may require.
8. VACATION
(A) The Employee shall be entitled, in addition to all paid
Company-observed holidays, to the number of working days paid
vacation as set out in Schedule 1 in each vacation year (being
the period from January 1 to December 31). The Employee may take
his vacation only at such times as are agreed by his manager and
shall not be entitled to be absent on vacation for a period
exceeding ten working days at any one time.
(B) In the respective vacation years in which the Employment
commences or terminates, the Employee's entitlement to vacation
shall accrue on a pro rata basis for each completed calendar
month of service during the relevant year.
(C) If, on the termination of the Employment, the Employee has
exceeded his accrued vacation entitlement, the value of such
excess, calculated by reference to clause 8(B) and the Salary,
may be deducted from any sums due to him and if there are no
such sums due, the Employee shall repay such excess to the
Company on such termination. If the Employee has
any unused vacation entitlement, the Company will make a payment
to him in lieu of it, calculated as above.
(D) Vacation entitlement for one vacation year cannot be taken
in subsequent vacation years, unless otherwise agreed by the
Board. Failure to take vacation entitlement in the appropriate
vacation year will lead to forfeiture of any accrued vacation
not taken without any right to payment in lieu of it.
(E) The Employee may take unpaid leave at the Board's
discretion.
(F) The Employee will be entitled to bereavement leave at the
Board's discretion, which shall not be unreasonably withheld or
delayed.
9. SICKNESS BENEFITS
(A) Subject to clause 14, the Company shall continue to pay the
Employee's Salary for up to a maximum of the number of working
days' absence as set out in Schedule 1 on medical grounds in any
period of 3 calendar months provided that the Employee shall
from time to time if required:
(i) supply the Company with medical certificates
covering any period of sickness or incapacity exceeding
seven days (including weekends); and
(ii) undergo at the Company's expense, by a doctor
appointed by the Company, any medical examination.
(B) Payment in respect of any other or further period of absence
shall be at the Company's discretion.
(C) Any payment to the Employee pursuant to clause 9(A) shall be
subject to set off by the Company in respect of any disability,
workers' compensation or other benefits to which the Employee
may be entitled.
(D) If the Employee's absence shall be occasioned by the
actionable negligence of a third party in respect of which
damages are recoverable, then the Employee shall:
(i) notify the Company as soon as reasonably practicable
of all the relevant circumstances and of any claim
compromise, settlement or judgement made or awarded in
connection with it;
(ii) give to the Company such information concerning the
above matters as the Company may reasonably require; and
(iii) if the Company so requires, refund to the Company
any amount received by him from any such third party
provided that the refund shall be no more than the
amount which he has recovered in respect of
remuneration.
10. PENSION AND DEATH BENEFIT
(A) No provision of retirement or death in service benefits will
be made by the Company for the Employee.
11. RESTRICTIONS DURING THE EMPLOYMENT
(A) During the Employment, the Employee shall not directly or
indirectly:
(i) be employed, engaged, concerned or interested in any
other business or undertaking; or
(ii) engage in any activity which the Board reasonably
considers may be, or become, harmful to the interests of
the Company or of any Group Company or which might
reasonably be considered to interfere with the
performance of the Employee's duties under this
Agreement.
(B) Clause 11(A) shall not apply to the engagement of the
Employee in any Permitted Activity.
(C) The Employee shall comply with every rule of law and every
regulation of the Company from time to time in force in relation
to dealings in shares or other securities of the Company or any
Group Company.
12. CONFIDENTIAL INFORMATION AND COMPANY DOCUMENTS
(A) The Employee shall neither during the Employment (except in
the proper performance of his duties) nor at any time (without
limit) after the termination of the Employment except in
compliance with an order of a competent court:
(i) divulge or communicate to any Person any
Confidential Information;
(ii) use any Confidential Information for his own
purposes or for any purposes other than those of the
Company or any Group Company; or
(iii) through any failure to exercise due care and
diligence, permit or cause any unauthorized disclosure
of any Confidential Information.
These restrictions shall cease to apply to any information which
shall become available to the public generally, otherwise than
through any breach by the Employee of the provisions of this
Agreement or other default of the Employee.
(B) The Employee acknowledges that all books, notes, memoranda,
records, lists of customers and suppliers and employees and
agents, correspondence, documents, computer and other discs and
tapes, data listings, codes, designs and drawings and other
documents and material whatsoever (whether made or created by
the Employee or otherwise) relating to the business of the
Company or any Group Company (and any copies of the same):
(i) shall be and remain the property of the Company or
the relevant Group Company; and
(ii) shall be handed over by the Employee to the Company
or to the relevant Group Company on demand and in any
event on the termination of the Employment and the
Employee shall certify that all such property has been
handed over on request by the Board and agrees that he
will take all reasonable steps to prevent the disclosure
of the same.
13. INVENTIONS AND OTHER INTELLECTUAL PROPERTY
(A) Employee will disclose promptly and fully to the Company and
to no one else: (i) all inventions, ideas, improvements,
discoveries, works modifications, processes, software programs,
works of authorship, documentation, formulae, techniques,
designs, methods, trade secrets, technical specifications and
technical data, know-how and show-how, concepts, expressions or
other developments whatsoever or any interest therein (whether
or not patentable or registrable under copyright, trademark or
similar statutes or subject to analogous protection) made,
authored, devised, developed, discovered, reduced to practice,
conceived or
otherwise obtained by Employee ("Inventions"), solely or jointly
with others, during the course of the Employment that (a) are
related to the business of the Company or any Group Company or
any of the products or services being researched, developed,
distributed, manufactured or sold by the Company or any Group
Company or which may be used in relation therewith or (b) result
from tasks assigned to Employee by the Company or any Group
Company; (ii) any Invention that is related to the business of
the Company or any Group Company and in which Employee had an
assignable interest at the time of Employee's first employment
by Employer; or (iii) any Invention made using the time,
materials or facilities of the Company or any Group Company,
even if such Invention does not relate to the business of the
Company or any Group Company. The determination as to whether an
Invention is related to the business of the Company or any Group
Company shall be made solely by an authorized representative of
the Company. Any Invention relating to the business of the
Company or any Group Company and disclosed to the Company (or
which should have been disclosed to the Company) within the 12
month period following the termination of Employee's employment
with the Company shall be presumed to fall within the provisions
of this clause 13. The "business of the Company or any Group
Company" as used in this clause 13 includes the actual business
currently conducted by the Company or any Group Company, as well
as any business in which the Company or any Group Company
proposes to engage at any time during the Employment. Employee
agrees that all such Inventions listed above and the benefits
thereof are and shall immediately become the sole and absolute
property of the Company (or such Group Company as the Company
may direct) from conception, as "works made for hire" (as that
term is used under the U.S. Copyright Act of 1976, as amended)
or otherwise. Employee shall have no interest in any Inventions.
To the extent that title to any Inventions or any materials
comprising or including any Invention does not, by operation of
law, vest in the Company, Employee hereby irrevocably assigns to
the Company all of Employee's right, title and interest,
including, without limitation, tangible and intangible rights
such as patent rights, trademarks and copyrights, that Employee
may have or may acquire in and to all such Inventions, benefits
and/or rights resulting therefrom, and agrees promptly to
execute any further specific assignments related to such
Inventions, benefits and/or rights at the request of the
Company. Employee also hereby assigns to the Company, or waives
if not assignable, all of Employee's "moral rights" in and to
all such Inventions, and agrees promptly to execute any further
specific assignments or waivers related to moral rights at the
request of the Company.
(B) Employee agrees to assist the Company without charge for so
long as the Employee is an employee of the Company and for as
long thereafter as may reasonably be necessary (but at the
Company's expense including reasonable compensation to the
Employee if the Employee is no longer an employee of the
Company: (1) to apply, obtain, register and renew for, and vest
in, the Company's benefit alone (unless the Company otherwise
directs), patents, trademarks, copyrights, mask works, and other
protection for such Inventions in all countries, and (2) in any
controversy or legal proceeding relating to Inventions. In the
event that the Company is unable to secure the Employee's
signature after reasonable effort in connection with any patent,
trademark, copyright, mask work or other similar protection
relating to an Invention, the Employee hereby irrevocably
designates and appoints the Company and its duly authorized
officers and agents as the Employee's agent and
attorney-in-fact, to act for and on the Employee's behalf and
stead to execute and file any such application and to do all
other lawfully permitted acts to further the prosecution and
issuance of patents, trademarks, copyrights, mask works or other
similar protection thereon with the same legal force and effect.
Following termination of his employment by the Company, the
rendering of any assistance by the Employee hereunder is subject
to the reasonable constraints of the Employee's other
responsibilities and commitments, including any requisite
approval by Employee's then employer.
14. TERMINATION
(A) Notwithstanding any other provisions of this Agreement, in
any of the following circumstances the Company may terminate the
Employment immediately by serving written notice on the Employee
to that effect. In such event the Employee shall not be entitled
to any
further payment from the Company, except such sums as shall have
accrued to the effective date of termination and not been paid.
The circumstances are if the Employee:
(i) commits a material breach of this Agreement (as
hereinafter defined) or commits any gross misconduct or
wilful neglect in the discharge of his duties;
(ii) repeatedly commits similar material breaches of
this Agreement, to those which have previously been
cured;
(iii) is convicted by a court of competent jurisdiction
of any fraud, dishonesty or any conduct tending to bring
himself, the Company, or any Group Company into
disrepute;
(iv) is convicted by a court of competent jurisdiction
of any felony or crime involving moral turpitude or is
convicted of any other criminal offense (other than
minor traffic offenses) which might reasonably be
thought to affect adversely the performance of his
duties;
(v) resigns as or otherwise ceases to be or becomes
prohibited by law from being an employee of the Company,
unless such resignation or cessation of employment is
either (a) at the Company's request, or (b),as a result
of the Company informing the Employee of either his
formal demotion or a material reduction in the
Employee's scope of responsibility.
For the purposes of this Agreement the term `material breach'
means Employee's breach of a material obligation of this
Agreement; provided, however, to the extent such breach is
capable of cure, Employee shall have thirty days (following
written notice to Employee of such breach) to cure such breach,
with such notice including sufficient detail to enable the
Employee to understand the nature of the alleged breach and any
specific action the Company requires the Employee to take in
order to cure such breach.
Any delay by the Company in exercising such right of termination
shall not constitute a waiver of it.
(B) To the extent permitted by law, if at any time the Employee
is unable to perform his duties because of physical or mental
disability, accident or otherwise for a period or periods
totalling at least 90 working days in any period of 12 calendar
months, then the Company may terminate the Employment by giving
him written notice of termination in accordance with Clause
3(A), provided that if at any time during such notice period the
Employee shall provide a medical certificate satisfactory to the
Board to the effect that he has recovered his physical and/or
mental health to the extent that he can perform his duties to
the Company, the Company shall withdraw the notice unless, by
that date, a replacement for the Employee has been appointed.
Notwithstanding the preceding sentence, upon the Employee's
eligibility to participate in a Company-provided long-term
disability plan, the requisite notice period referred to above
shall be (without any further action by the Parties) decreased
to 1 months' advance written notice of termination.
(C) If the Company believes that it may be entitled to terminate
the Employment pursuant to clause 14(A), it shall be entitled
(but without prejudice to its right subsequently to terminate
the Employment on the same or any other ground) to suspend the
Employee on full pay and other benefits for so long as it may
think fit.
(D) On the termination of the Employment or upon either the
Company or the Employee having served notice of such
termination, the Employee shall immediately deliver to the
Company all materials, keys, credit cards, vehicles, and other
property of or relating to the business of the Company or of any
Group Company which may be in his possession or under his power
or control.
(E) With a view to ensuring that his departure can be arranged
with the minimum of inconvenience or disruption to the business
of the Group and its relationship with third parties and its
other employees, the Employee undertakes not, without the prior
approval of the Board as to the timing and manner of any
communication about his departure, to inform any of his
colleagues about the proposed cessation of his employment
hereunder.
(F) The Employee acknowledges the right of the Company to
monitor and control the performance of its employees and
acknowledges the fiduciary obligations attaching to his
position.
15. RESTRICTIVE COVENANTS
(A) The Employee will not, without the prior written consent of
the Board, for a period of 18 months (less any period during
which the Employee has not been provided with work pursuant to
clause 3(B)) after the termination of the Employment (for any
reason or no reason), whether as principal or agent, and whether
alone or jointly with, or as a director, officer, manager,
owner, partner, member, shareholder, employee or consultant of
any other Person, directly or indirectly:
(i) interfere with, tender for, canvass, solicit or
endeavor to entice away from the Company or from any
Group Company the business of any Person who or which at
the date of termination of the Employment or during the
period of 12 months prior to that date (or if earlier,
prior to the date on which the Employee last carried out
duties assigned to him by the Company) was, to his
knowledge, a customer, client or agent of or supplier to
or who had dealings with the Company or with any Group
Company. This restriction will be limited to activities
by the Employee which will involve offering or providing
products or services similar to those which were
provided by the Company or any Group Company during the
Employment;
(ii) supply any product, carry out or undertake or
provide any product or service similar to those with
which were provided by the Company or any other Group
Company during the period of 12 months prior to the
termination of the Employment to or for any Person who
or which, at the date of termination of the Employment
or during the period of 12 months prior to that date was
a customer, client or agent of or supplier to, or
otherwise had dealings with, the Company or with any
Group Company;
(iii) be employed or engaged by, or enter into
partnership or similar arrangement with, employ, engage
or attempt to employ or engage, or negotiate or arrange
the employment or engagement by any other Person, of any
Person who or which to his knowledge was, at the date of
the termination of the Employment, or within the period
of 12 months prior to that date had been, an employee,
independent contractor, or agent of the Company or any
Group Company; or
(iv) solicit, interfere with, tender for or endeavor to
entice away from the Company or from any Group Company
any contract, project or business, or the renewal of any
of them, carried on by the Company or by any Group
Company which is currently in progress at the date of
the termination of the Employment or which was in the
process of negotiation at that date.
(B) None of the restrictions contained in clause 15(A) shall
prohibit any activities by the Employee which are not in direct
competition with any business being carried on by the Company or
by any Group Company at the date of the termination of the
Employment.
(C) At no time after the termination of the Employment shall the
Employee directly or indirectly represent himself as being
interested in or employed by or in any way connected with the
Company or any Group Company, other than as a former employee of
the Company.
(D) The Employee agrees that, having regard to all the
circumstances, the restrictions contained in this clause and
clauses 12 and 13 are reasonable and necessary for the
protection of the legitimate business interests of the Company
and the Group Companies and that they do not restrict him from
earning a livelihood during the applicable period of
restriction. The Employee further agrees that any breach by the
Employee of any provision contained in clauses 12, 13 and 15
will result in immediate irreparable injury to the Company
and/or a Group Company for which a remedy at law would be
inadequate. Accordingly, Employee acknowledges that the Company
and/or any Group Company shall be entitled to seek temporary,
preliminary or permanent injunctive or other equitable relief
against the Employee (without the necessity of posting a bond or
other collateral) in the event of any breach or threatened
breach of any provision contained in clauses 12, 13, and 15, in
addition to any other remedy that may be available to the
Company and/or a Group Company at law or in equity. Employee
understands that, without limitation, the provisions of clauses
12, 13, and 15 shall survive the termination of the Employment.
The Parties agree that:
(i) it is the intention of the Parties that the
covenants and restrictions set forth in clauses 12, 13,
and 15 shall be given the broadest interpretation
permitted by law;
(ii) each provision set forth in clauses 12, 13, and 15
shall be read and construed independently of the other
provisions so that if one or more are determined (by a
court of competent jurisdiction) to be void, invalid, or
unenforceable as an unreasonable restraint of trade or
for any other reason the remaining provisions shall not
be affected; and
(iii) if any one or more provisions set forth in clauses
12, 13, and 15 is determined (by a court of competent
jurisdiction) to be unenforceable in any respect, then
such provision shall be deemed limited and restricted to
the extent that the court shall deem the provision to be
enforceable.
16. DISCIPLINARY AND GRIEVANCE PROCEDURES
(A) If the Employee wishes to obtain redress of any grievance
relating to the Employment or is dissatisfied with any
reprimand, suspension or other disciplinary step taken by the
Company, he may address this to the Chairman of the Company
according to the Company's disciplinary and grievance
procedures, if any, in place from time to time.
17. NOTICES
All notices, requests, demands and other communications required or permitted
hereunder shall be given in writing and shall be deemed to have been duly given
(i) on the date delivered if personally delivered, (ii) on the date sent by
telecopier with automatic confirmation by the transmitting machine showing the
proper number of pages were transmitted without error, (iii) upon receipt by the
receiving party of any notice sent by registered or certified mail (first-class
mail, postage pre-paid, return receipt requested) or (iv) on the date targeted
for delivery if delivered by nationally recognized overnight courier or similar
courier service, in each case addressed to the Company or the Employee, as the
case may be, at the respective addresses indicated in the caption of this
Agreement or such other address as either party may in the future specify in
writing to the other.
18. FORMER CONTRACTS OF EMPLOYMENT
This Agreement shall be in substitution for and shall supercede any previous
contracts, whether by way of letters of employment, agreements or arrangements,
whether written, oral or implied, relating to the employment of the Employee
(including, without limitation, all bonus and option arrangements), which shall
be deemed to have been terminated by mutual consent as of the date of this
Agreement and the Employee acknowledges to the Company for itself and on behalf
of each Group Company that he has no outstanding claims of any kind against the
Company or any Group Company in respect of any such contract.
19. CHOICE, OF LAW AND SUBMISSION TO JURISDICTION
(A) Any and all actions or controversies arising out of this
Agreement or the Employment, including, without limitation, tort
claims, shall be construed and enforced in accordance with the
laws of the State of New Jersey, without regard to the choice of
law principles thereof.
(B) the Parties hereby (a) irrevocably consent and submit to the
sole exclusive jurisdiction of the United States District Court
for the District of New Jersey or the Superior Courts of New
Jersey (and of the appropriate appellate courts therefrom), (b)
irrevocably waive, to the fullest extent permitted by law, any
objection that any of them may now or hereafter have to the
laying of the venue of any such actions or controversies in any
such court or that any such any such actions or controversies
which is brought in any such court has been brought in an
inconvenient forum, and (c) IRREVOCABLY WAIVE ANY RIGHT TO
REQUEST A TRIAL BY JURY IN ANY SUCH ACTIONS OR CONTROVERSIES AND
REPRESENTS THAT SUCH PARTY HAS CONSULTED WITH COUNSEL
SPECIFICALLY WITH RESPECT TO THIS WAIVER.
20. GENERAL
(A) This Agreement constitutes the written statement of the
terms of employment of the Employee.
(B) This Agreement contains the entire agreement of the Parties
with respect to the terms and conditions of the Employment.
(C) This Agreement shall inure to the benefit of the Company,
the other Group Companies and their respective successors and
assigns (including, without limitation, any successor by merger
or acquisition or any purchaser of all or substantially all of
its assets) and shall continue with full force and effect and
shall be binding upon the Company and its successors and
assigns. This Agreement shall also inure to the benefit of and
be binding upon the Employee and the Employee's heirs,
administrators, executors and assigns. The Employee may not
assign or delegate his duties under this Agreement, without the
prior written consent of the Company.
(D) The Employee represents that the Company has previously
recommended that the Employee engage counsel to assist him in
reviewing this Agreement and all other matters relating to the
Employment. The Employee acknowledges that, prior to executing
this Agreement, The Employee has been given a reasonable
opportunity to review the Agreement and to consult with counsel
as to its content and is entering into this Agreement freely and
voluntarily. The Company and the Employee shall each bear their
own costs and expenses in connection with the negotiation and
execution of this Agreement.
(E) The respective rights and obligations of the Parties under
this Agreement shall survive any termination of this Agreement
to the extent necessary to the intended preservation of such
rights and obligations.
IN WITNESS WHEREOF, the Company and the Employee, intending to
be legally bound, have executed this Agreement on the day and year first above
written.
COMPANY:
NARROWSTEP INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
-----------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Chief Operating Officer
EMPLOYEE:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
SCHEDULE1
THE EMPLOYEE: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
JOB TITLE: Senior Vice President and Chief Financial Officer and/or such other
position or capacity as the Company and the Employee shall agree from time to
time.
JOB DESCRIPTION
Such duties as are assigned by the Board from time to time that are consistent
with his position as Chief Financial Officer and/or such other position or
capacity as the Company and the Employee shall agree from time to time.
SALARY
Subject to the Employee's continued employment, the Salary will be as follows:
Jan 1, 2005 - June 30, 2005: $11,250 (U.S.D.) per month ($135,000 (U.S.D.), on
an annualized basis)
Jul 1, 2005 - December 31, 2005: $12,500 (U.S.D.) per month ( $150,000 (U.S.D.),
on an annualized basis)
Jan 1 2006- June 30, 2006: $14,583.33 (U.S.D.) per month ($175,000 (U.S.D.), on
an annualized basis)
Jul 1 2006- December 31, 2006: $15,833.33 (U.S.D.) ($190,000 (U.S.D.),on an
annualized basis)
Subject to the Employee's continued employment, Salary will be further reviewed
on January 1, 2007 and then annually by the Company's Compensation Committee.
Adjustments to Salary will be dependant on the Company's profitability, the
efficiency of its financial operations, and such other factors as determined by
the Company in its discretion.
BONUS
During the Employment, the Employee will be eligible for a bonus of 1% of
audited annual net profits, if any, for the Company (as determined on a
consolidated basis and in accordance with U.S. Generally Accepted Accounting
Procedures) up to a maximum of $1,000,000 (U.S.D.) for any fiscal year. Bonus
amounts, if any, for any fiscal year will be paid within 14 days following
signature of the audit report for the Company's audited financial statements for
such fiscal year. As a condition to the Employee's receipt of any bonus payment
for a given year, the Employee must remain employed by the Company on the last
day of the applicable fiscal year.
STOCK OPTIONS
Subject to approval by the Compensation Committee and your continued employment
by the Company, you will be granted the following options to purchase shares of
common stock of the Company, all with an exercise price per share equal to the
fair market value of one share of common stock at the time of grant (currently
$1.20 (U.S.D.)):
Options for 500,000 shares of common stock on the commencement of the
Employment, fully vested on grant
Options for an additional 100,000 shares of common stock, with an exercise price
per share equal to the fair market value of one share of common stock at the
time of grant, on January 1, 2006 and each subsequent January 1. These options
will vest with respect to 50% of the underlying shares on the date of grant,
with the balance vesting on the second anniversary of the grant
Except as otherwise provided for in this Agreement, all such stock options will
be subject to the terms and conditions established within the Company's 2004
Stock Plan or any successor stock option plan as may be in place from time to
time ("Stock Plan") and a separate stock option grant agreement that sets forth,
among other things, the exercise price, expiration date, and vesting schedule of
such options.
ALL SHARE OPTIONS WILL VEST IMMEDIATELY UPON A CHANGE IN CONTROL OF THE COMPANY
(AS DEFINED IN THE STOCK PLAN).
VACATION ENTITLEMENT
You will be eligible to accrue up to twenty days' paid vacation per calendar
year, with an additional day per year of service up to a maximum of twenty-eight
days per calendar year.
SICK DAY ENTITLEMENT
You will be entitled to reasonable paid sick leave.
ADDITIONAL BENEFITS
Subject to your continued Employment:
The Company will pay for a basic broadband connection to enable you to work from
home.
Professional subscriptions related to the Employment will be paid for by the
Company.
The Company will make a minimum contribution of $4000 in calendar year 2005
(prorated if your employment terminates prior to 12/31/05) towards your selected
personal pension funds and will undertake a review of pension provisions for all
senior officers.
The Company will implement a health insurance scheme for all senior officers,
including their eligible dependents as soon as is practical and in any event no
later than October 1, 2005.
The Company will undertake to implement Directors & Officers liability insurance
as of the date the Company becomes a public entity.
SCHEDULE 2
PERMITTED ACTIVITIES
1. The Employee is permitted to be engaged, concerned or interested in or to
hold office in any business or undertaking provided that:
(a) the business or undertaking in question does not compete with the business
of the Company or any Group Company;
(b) the Employee's engagement, concern or interest in the business or
undertaking in question does not require him to devote time and attention to it
such as to prevent the Employee from properly fulfilling his duties to the
Company or any Group Company, and in particular the Employee's duties under
clause 4 (A) of this Agreement; and
(c) the Employee notifies the Company in writing before or as soon as
practicable after his engagement, concern or interest arises begins.
