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Exhibit 10.2
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement"), dated as of October 22,
1997, between XXXX XXXXXXXXXX, an individual residing at 000 Xxxxxx Xxxxxx,
Xxxxxxxx, Xxx Xxxx 00000 (the "Executive"), and Jupiter Communications, LLC, a
New York limited liability company having its principal office located at 000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Company").
W I T N E S S E T H:
WHEREAS, the Executive is currently serving as President and Chief
Operating Officer of the Company; and
WHEREAS, the Company desires to secure for itself the continued
availability of the Executive's services; and
WHEREAS, for purposes of securing for the Company the Executive's
services, the managing members of the Company (the "Managing Members") have
approved and authorized the execution of this Agreement with the Executive on
the terms and conditions set forth herein; and
WHEREAS, the Company and the Executive desire to provide for the
employment of the Executive by the Company on the terms set forth herein;
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual promises contained in this Agreement,
IT IS HEREBY AGREED AS FOLLOWS:
Section 1. Employment and Duties.
(a) Subject to the provisions of this Agreement, the Company hereby
employs the Executive as its President and Chief Operating Officer and the
Executive hereby accepts such employment. Subject to the provisions of this
Agreement and the authority of the Managing Members, the Executive shall have
full duties and responsibilities, with the concomitant powers and authority,
consistent with the Executive's position as President and Chief Operating
Officer, including, without limitation, the direction of finance, marketing, and
administrative operations of the Company; the oversight (in collaboration with
the Chairman and Chief Executive Officer of the Company) of the Company's
consulting and research business, reviewing all consulting assignments,
preparing all proposals, and supervising project management staff; and such
additional duties as are consistent with the Executive's experience and
background as the Managing Members shall determine from time to time. The
Company shall use its best efforts to ensure that the Executive continues to be
a Managing Member during the term of this Agreement.
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(b) The Executive shall devote substantially all of his business time,
energies, and attention to the performance of the duties specified in this
Agreement. Subject to the foregoing and to the limitations set forth in Section
9(a) of this Agreement, the Company acknowledges that the Executive may engage
in personal business and investment activities for his own account, provided
that such activities do not interfere with the performance of the Executive's
duties under this Agreement. It is expressly understood and agreed that the
Executive's continuing to serve on any boards and committees on which he is
serving or with which he is otherwise associated immediately preceding the date
hereof, or his service on any other boards and committees of which the Company
has knowledge and does not object, in writing, within thirty (30) days after
first becoming aware of such service, shall not be deemed to interfere with the
performance of the Executive's services to the Company, provided that such
service on boards or committees shall be in compliance with the provisions of
Section 9(a) hereof, as qualified by Section 9(a)(ii)(C).
(c) The Executive's principal place of employment shall be at the
Company's executive offices located at the address first set forth above, or at
such other location as the Company and the Executive may mutually agree upon. It
is hereby mutually agreed that if the Company opens an office in the San
Francisco, California metropolitan area, Executive will be assigned to such
office.
(d) The Executive shall at all times, and to the best of his ability,
use his best efforts to promote and advance the best interests of the Company
and to perform all of his obligations under this Agreement.
Section 2. Term.
The initial term of this Agreement and the Executive's employment by
the Company hereunder shall commence as of the date of this Agreement and shall
continue, subject to earlier termination in accordance with the provisions of
this Agreement, until December 31, 1999 (the "Initial Term"). Upon ninety (90)
days written notice to the Company prior to the expiration of the Initial Term
or the first Renewal-Term (as hereinafter defined), the Executive shall have the
right to extend the term of this Agreement for an additional one-year period
(the "Renewal Term"). The Executive is entitled to up to two (2) Renewal Terms.
The Term of this Agreement shall include the Initial Term and all Renewal Terms.
Section 3. Compensation.
(a) Salary.
(i) For all of the services to be rendered by the Executive
hereunder, the Company shall pay to the Executive a salary at an annual
rate equal to One Hundred Fifty-Five Thousand Dollars ($155,000) per
annum, subject to adjustment as provided herein. The annual salary
payable under this Section 3(a) shall be paid in approximately equal
installments in accordance with the Company's customary payroll
procedures and withholding obligations.
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(ii) During the 60-day period preceding the end of each fiscal
year during the Term, commencing with the fiscal year ending December
31, 1998, the parties will negotiate in good faith to increase
Executive's salary for the succeeding fiscal year so that Executive's
total cash compensation is substantially the same as the total cash
compensation paid by companies comparable to the Company to executives
with experience and responsibilities comparable to the Executive's;
provided, however, that such salary levels shall not be lower than
those set forth on Schedule 3 attached hereto and made a part hereof;
provided, further, (a) that if a "Minimum Revenue Target" (as set forth
on Schedule 3 hereof) is not achieved for a fiscal year during the term
hereof, then the Executive's salary for the succeeding fiscal year
shall not be increased without the consent of Gartner Group, Inc.
("Gartner"), and (b) in no event shall the salary for any fiscal year
be increased above the respective amount set forth in Schedule 3
without Gartner's approval. The salary levels agreed to pursuant to the
preceding sentence will become effective as of the commencement of the
upcoming fiscal year. In no event shall the Executive's initial salary
or any increased salary be reduced absent mutual agreement of the
parties.
(b) Bonus.
In addition to the salary provided under Section 3(a) of this
Agreement, the Executive shall receive a bonus for each fiscal year of the
Company as follows: (i) the amount of Thirty Thousand Dollars ($30,000) for the
fiscal year ending December 31, 1997, and (ii) for each fiscal year thereafter,
the amount indicated on Schedule 3 attached hereto and made a part hereof, based
on the attainment of the "Revenue Targets" set forth on such Schedule 3. The
"Revenue Targets" may be increased or reduced from time to time if agreed in
writing by the Company and the Executive, provided that any such adjustments
shall be approved by Gartner. A "Revenue Target" shall be attained if the
"Adjusted Gross Revenues" (as hereinafter defined) of the Company meets or
exceeds the indicated amount. As used herein, "Adjusted Gross Revenues" shall
mean gross revenues of the Company less the sum of all write-offs taken, or
reserves created, for bad debts during such fiscal year. All computations of
Adjusted Gross Revenues hereunder shall be made by the Company in accordance
with generally accepted accounting principles, consistently applied. In the
event that the Executive is in the Company's employ for less than a full fiscal
year, and is entitled to a bonus for that year as provided in this Agreement,
then the bonus payable for such year shall be pro-rated. The bonus shall be paid
in cash within ninety (90) days following the end of the fiscal year for which
such bonus is payable.
(c) Options.
(i) The Managing Members of the Company shall have the right
to cause the Company to grant to the Executive at any time or from time
to time options to purchase additional units of membership interests in
the Company (the "Options") in such amounts and on such terms as the
Managing Members shall determine, with the approval of Gartner;
provided, however, that Gartner's approval shall not be required for
the issuance of Options to the Executive (A) in an amount not to exceed
the number of Options granted to the most senior executive or employee
of the Company who has received Options of the Company ("Other
Options") (exclusive of "one-time"
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grants of Options issued in connection with the initial hiring of an executive)
and (B) on terms no more favorable than the Other Options.
(d) All references in this Agreement to required consents or approvals
by Gartner shall only apply so long as Gartner continues to have a membership
interest in the Company with a sharing ratio (as defined in the Company's Third
Amended and Restated Operating Agreement) of no less than 16%.
Section 4. Benefits.
(a) Employee Benefits. Except as otherwise provided in this Agreement,
the Executive shall be treated as an executive and an employee and shall have
the right to participate in and receive benefits under life, health (including
hospitalization, medical, and major medical), dental, accident, and long term
disability insurance plans, pension, profit sharing, incentive compensation
plans or programs (whether or not employee benefit plans or programs), and any
stock option and appreciation rights plan, employee stock ownership plan, and
restricted stock plan, as may from time to time be maintained by, or cover
employees or executives of, the Company, in accordance with the terms and
conditions of such employee benefit plans and programs and compensation plans
and programs and with the Company's customary practices. The benefits and
entitlements which the Company currently provides to its executives are
described on Schedule 4(a) hereto.
(b) Expenses. The Executive is authorized to incur reasonable expenses
for promoting the business of the Company and as may be reasonably necessary to
enable the Executive to perform his duties hereunder including, without
limitation, expenses for entertainment, travel, and similar items. The Company
shall pay or reimburse the Executive for such expenses after the presentation by
the Executive, from time to time, of itemized accounts of such expenditures in
the form then required by the Company for such accounting. Payments or
reimbursements will be made within the time period in which the Company
routinely makes such payments or reimbursements to its employees, but in no
event later than thirty (30) days after the submission of itemized accounts. The
Company shall provide the Executive with a credit card and the Executive shall
be entitled to the use of such card for the Company's business.
(c) Electronic Equipment. The Company shall purchase or lease for the
Executive's exclusive use and pay or reimburse the Executive for the payment of
all charges relating to (i) a personal computer for Executive's use outside of
the Company's offices, (ii) a cellular telephone, and (iii) a beeper. Such
personal computer, cellular telephone, and beeper shall be selected by the
Executive.
(d) Working Facilities. The Company shall provide the Executive at the
Executive's principal place of employment with a private office, secretarial
services, and other support services, equipment, and facilities suitable to the
Executive's position with the Company and necessary or appropriate in connection
with the performance of the Executive's assigned duties under this Agreement.
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(e) Vacation. The Executive shall be entitled to four (4) weeks of paid
vacation each year, to be scheduled on reasonable notice to the Company.
Section 5. Representations and Warranties of the Executive.
The Executive represents and warrants that he (a) is subject to no
currently existing agreement which would interfere with his entering into this
Agreement; (b) has made no commitment of any kind inconsistent with the
provisions of this Agreement and his duties hereunder; and (c) is under no
disability of any kind which would prevent him from entering into this Agreement
and performing all of his obligations hereunder.
Section 6. Termination of Employment with Company Liability.
(a) Permitted Termination. In the event that Executive's employment
with the Company shall terminate during the Term on account of:
(i) The discharge of the Executive by the Company for any
reason other than for "cause" (as defined in Section 7(a) hereof); or
(ii) The Executive's voluntary resignation from employment
with the Company within ninety (90) days of the occurrence of any of
the following:
(A) If the Company, without the Executive's consent thereto or as
otherwise permitted herein, (x) materially changes the Executive's duties,
responsibilities, authority, or positions as provided in this Agreement such
that the change represents a demotion to a position below "Senior Management"
(as herein defined), or (y) reduces Executive's base salary or reduces the bonus
payable to Executive below the amounts set forth in Section 3(a) or 3(b) (as
applicable) or Schedule 3 hereof, other than across the board reductions
effectuated with respect to senior level executives and employees as a result of
fiscal constraints; or
(B) If the Executive ceases to be a Managing Member without the
Executive's consent; or
(C) If the Company experiences a Change in Control;
(each of the foregoing, a "Permitted Termination"), then the Company shall
provide the benefits and pay to the Executive (or his estate, as applicable) the
amounts set forth under Section 6(b) of this Agreement; provided. however. that
if the Company in good faith disputes that Section 6(a)(ii) applied to a
resignation by the Executive, the Company shall not be obliged to provide to the
Executive the amounts set forth under Section 6(b) of this Agreement until
resolution has been reached on whether such resignation falls within Section
6(a)(ii). For purposes hereof, a "Change in Control" shall mean (i) the
acquisition by any individual, entity or group (within the meaning of
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Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") (a "Person") of beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) of membership interests (or
equivalent equity securities should the Company not be a limited liability
company) of the Company where such acquisition causes such Person to own
membership interests (or such equivalent equity securities) having a sharing
ratio (or equivalent equity interest) equal to or greater than 50%; provided
that such Person does not include the Executive, Xxxxxx XxXxxx or Xxxxxxx; or
(ii) the approval by the members of the Company of a reorganization, merger or
consolidation, or sale or other disposition of all or substantially all of the
assets of the Company; provided, however, that if the Executive consents to, or
abstains from, any vote with regard to any such change, then such change shall
not be deemed to be a "Change in Control". For purposes hereof, "Senior
Management" shall mean the positions of Chairman and Chief Executive Officer or
President and Chief Operating Officer or senior executive positions of
equivalent responsibility and authority.
(b) Payments on Permitted Termination. Upon termination of the
Executive's employment with the Company under circumstances described in Section
6(a) of this Agreement, and subject to the provisions of such Section 6(a), the
Company shall pay and provide to the Executive (or, in the event of the
Executive's death, to the Executive's estate):
(i) the Executive's earned but unpaid salary as of the date of
termination of the Executive's employment with the Company, along with
all outstanding amounts due to the Executive under this Agreement
(including reimbursement of all business expenses); and except as
provided in Section 6(b)(ii), the provision of such other insurance
(including COBRA) and disability benefits, if any, to which the
Executive is entitled as a former employee under this Agreement and the
employee benefit plans and programs and compensation plans and programs
maintained by, or covering employees of, the Company.
(ii) in lieu of any monetary payments to which the Executive
may be entitled under any severance pay plan, program, or policy, the
following amounts:
(A) within thirty (30) days following the Executive's
termination of employment with the Company, a lump sum cash payment, in
an amount equal to the present value of fifty percent (50%) of the
salary that the Executive would have earned at the rate in effect as of
the date of termination (in accordance with Section 3(a)) if the
Executive had continued working for the Company for a period of
eighteen months following the date of termination at the same annual
rate, where such present value is to be determined using a discount
rate of six percent (6%) per annum, compounded monthly (or the
compounding period corresponding to the Company's regular payroll
periods with respect to its officers, if not monthly); and
(B) the Company shall continue to pay Executive fifty percent
(50%) of the salary that Executive would have earned at the rate in
effect as of the date of termination (in accordance with Section 3(a)),
if the Executive had continued working for the Company during such
eighteen
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month period at the same annual rate, such salary to be paid in accordance with
the Company's normal payroll procedures and withholding obligations;
such payments pursuant to clauses (A) and (B) above to be paid in lieu of all
other payments of salary provided for under this Agreement in respect of the
period following any such termination hereof; provided, however, that if the
termination is pursuant to Section 6(a)(i) where the termination occurs within
twelve (12) months following a "Change in Control" or pursuant to Section
6(a)(ii)(C), the amount and duration of the payments under this Section
6(b)(ii)(A) and (B) shall be adjusted (and, if the remaining unexpired Term
(including the Renewal Terms) is greater than eighteen months, shall be
increased) as follows, subject to the provisions of Section 6(b)(iv): the
payments shall be calculated to compensate the Executive as if the Executive had
continued working for the Company during the remaining unexpired Term (including
the Renewal Terms) at the annual salary rate set forth above and all references
in clauses (A) and (B) to "eighteen months" shall be changed to "the remaining
unexpired Term (including the Renewal Terms)";
(iii) the following amounts:
(A) within thirty (30) days following Executive's termination of
employment with the Company, a lump sum cash payment in an amount equal to the
present value (determined at the discount rate set forth in subparagraph (ii)
hereof), of fifty percent (50%) of the payments that would have been made to the
Executive under Section 3(b) hereof if the Executive had continued working for
the Company for a period of eighteen months following the termination of his
employment and had earned an annual bonus payment for each fiscal year
calculated, (x) in case of a termination occurring during fiscal year ending
December 31, 1997 in the amount of $30,000 per annum, and (y) in the case of a
termination occurring during any fiscal year ending December 31, 1 998 through
2001, determined by the annual bonus payment based on the intermediate "Revenue
Target" for the fiscal year in which the termination occurs as set forth in
Schedule 3; and
(B) the Company shall pay to the Executive in cash fifty percent (50%)
of the bonus payments that would have been paid to Executive under Section 3(b)
hereof if the Executive had continued working for the Company during such
eighteen month period and had earned an annual bonus payment for each fiscal
year calculated, as set forth in clause (A) hereof, such bonus payments to be
payable at the times specified in the last sentence of Section 3(b) hereof;
provided, however, that if the termination is pursuant to Section 6(a)(i) where
the termination occurs within twelve (12) months following a "Change in Control"
or pursuant to Section 6(a)(ii)(C), the amount and duration of the payments
under this Section 6(b)(iii)(A) and (B) shall be adjusted (and, if the remaining
unexpired Term (including the Renewal Terms) is greater than eighteen months,
shall be increased) as follows, subject to the provisions of Section 6(b)(iv):
the payments shall be calculated to compensate the Executive as if the Executive
had continued working for the Company during the remaining unexpired Term
(including the Renewal Terms) and was entitled to the annual bonus calculated as
set forth above based on the year in which termination occurs, for each fiscal
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year during such period, and all references in clauses (A) and (B) to "eighteen
months" shall be changed to "the remaining unexpired Term (including the Renewal
Terms)";
(iv) In the event that a termination of employment occurs pursuant to
Section 6(a)(i) where the termination occurs within twelve (12) months following
a "Change in Control," or pursuant to 6(a)(ii)(C) of this Agreement, in either
case with less than one year remaining in the unexpired Term (including, for
these purposes, the Renewal Periods), then in lieu of the payments and benefits
which the Company shall pay or provide pursuant to Section 6(b) (or as otherwise
specified herein), the Company shall pay to the Executive (or his estate, as
applicable), within thirty (30) days following his termination of employment,
the following severance payments:
(A) the amounts set forth in Section 6(b)(i); plus
(B) a lump sum cash payment in an amount equal to one year of
the Executive's salary at the base salary in effect as of his
termination as set forth in Section 3(a); plus
(C) a lump sum cash payment in an amount equal to one hundred
percent (100%) of the annual bonus payment that would have been paid to
the Executive had he continued working for the Company for a one year
period following the date of termination of his employment, calculated
as provided in clauses (x) and (y) of Section 6(b)(iii)(A) hereof.
(c) Option Treatment on Permitted Termination. On a Permitted
Termination, the Executive shall have a period of 30 days thereafter to exercise
all vested Options. All non-vested Options shall become null and void upon any
such termination of employment.
(d) Stipulation. The Company and the Executive hereby stipulate that
the damages which may be incurred by the Executive following any termination of
employment pursuant to Section 6(a) are not capable of accurate measurement as
of the date of this Agreement and that the payments and benefits contemplated by
Section 6(b) constitute reasonable damages under the circumstances and shall be
payable without any requirement of proof of actual damage and without regard to
the Executive's efforts, if any, to mitigate damages.
Section 7. Termination without Additional Company Liability.
In the event that the Executive's employment with the Company shall
terminate during the Term on account of:
(a) Cause. The discharge of the Executive for "cause" which, for
purposes of this Agreement, shall mean: (i) fraudulent or dishonest action by
the Executive in the performance of his duties under this Agreement; (ii) the
willful continued failure by the Executive to substantially perform his duties
hereunder or his willful misconduct that causes material harm to the Company or
the Executive's failure to comply with the rules and policies of the Company
disseminated from time to time, which is not cured within 15 business days of
the Company's written notice specifying
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the alleged breach with reasonable particularity; (iii) the conviction of, or
plea of nolo contendere by, the Executive of any felony involving an act of
moral turpitude or otherwise relating directly or indirectly to the business or
reputation of the Company; or (iv) drug or other substance abuse that interferes
in any material respects with the performance of the Executive's duties under
this Agreement;
(b) Voluntary Resignation. The Executive's voluntary resignation from
employment with the Company for reasons other than those specified in Section
6(a)(ii);
(c) Death. The Executive's death; or
(d) Disability. A determination by the Company that the Executive is
incapacitated or disabled and as a result thereof is unable to perform the
Executive's material duties hereunder for six consecutive months, or an
aggregate of six months during any nine consecutive month period;
then the Company shall have no further obligations under this
Agreement, other than (i) the payment to the Executive (or, in the event of the
Executive's death, to his estate) of (A) the Executive's earned but unpaid
salary as of the date of termination of the Executive's employment; and (B) in
the event of a termination on account of the Executive's death or disability,
the Executive's earned but unpaid bonus as of the date of the Executive's
termination, pro-rated for the fiscal year during which the Executive's
termination occurs (based on the number of days the Executive was in the
Company's employ during such fiscal year) if the date of termination is other
than the last day of a fiscal year; and (ii) the provision of such other
insurance (including COBRA) and disability benefits, if any, to which the
Executive is entitled as a former employee under this Agreement and the employee
benefit plans and programs and compensation plans and programs maintained by, or
covering employees of, the Company. All vested Options issued under Section 3(c)
hereof shall survive and may be exercised for a period of 30 days after such
termination, or 90 days in the event of the Executive's death or disability
unless earlier expiring pursuant to their terms. All non-vested Options shall
become null and void upon any such termination of this Agreement.
Section 8. Severance at Expiration of Term.
In the event that the Executive has extended the Term for two Renewal
Terms and, at the expiration of the second Renewal Term, the Executive's
employment is not continued by the Company for any reason, then the Company
shall pay to the Executive (or the Executive's estate, as applicable) the
Executive's earned but unpaid salary as of the date of the termination of the
Executive's employment and the Executive's earned but unpaid bonus as of the
date of the Executive's termination, pro-rated for the fiscal year during which
the Executive's termination occurs (based on the number of days the Executive
was in the Company's employ during such fiscal year) if the date of termination
is other than the last day of a fiscal year; shall provide to the Executive all
of the insurance (including COBRA) and disability benefits, if any, to which the
Executive is entitled as a former employee under this Agreement, and the
employee benefit plans and programs and compensation plans and programs
maintained by, or covering employees of, the
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Company; and, in addition, shall pay the Executive the severance payments set
forth in Section 6(b)(iv) of this Agreement. All vested Options issued under
Section 3(c) hereof shall survive and may be exercised for a period of 30 days
after such termination, unless earlier expiring pursuant to their terms. All
non-vested Options shall become null and void upon such severance.
Section 9. Covenants.
(a) Non-competition.
(i) In General. (A) The Executive hereby covenants and agrees that,
during the Term and for a period of two (2) years following the termination of
his employment, he will not, without the written consent of the Company, engage
or be otherwise directly or indirectly interested in any way, whether as an
officer, director, stockholder (other than a stockholder of less than 2% of the
stock of a publicly traded company), partner, member, principal, agent,
employee, consultant, owner, or otherwise, in any business in the United States
which is in direct competition with the business conducted by the Company.
(B) The Executive further covenants and agrees that, during the Term
and for a period of two (2) years following the termination of his employment,
whether upon expiration of the Term or otherwise, he will not, directly or
indirectly, for his benefit or for the benefit of any other person, firm or
entity, (x) contact or solicit the business of any customers or prospective
customers (namely, prospects whose business was actively solicited by the
Company) for purposes in direct competition with the business conducted by the
Company; or (y) cause or induce any customer, potential customer, employee or
consultant to terminate or fail to continue a relationship with the Company. For
purposes hereof, all references to customers and prospective customers shall
mean those who were customers or prospective customers at any time during the
twelve (12) months prior to the occurrence of any of the activities described in
clause (x) or (y) of this Section 9(a)(i)(B).
(ii) Exceptions.
(A) In the event that the Executive's employment is terminated
on account of disability as provided in Section 7(d) of this Agreement,
this Section 9(a) shall not prevent the Executive from accepting any
position or performing any services if (1) he first offers, by written
notice, to accept a similar position with, or perform similar services
for, the Company on substantially the same terms and conditions and (2)
the Company declines to accept such offer within ten (10) days after
such notice is given.
(B) The Company understands that the Executive owns an equity
interest in Pseudo Programs, Inc. ("PPI") and agrees that such business
interest and activities may continue during and after the Term and
shall not be deemed to violate the provisions of Section 9(a) hereof,
so long as the business of PPI does not materially change in such a way
so as to compete directly with the business conducted by the Company.
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(b) Restrictions on Offers of Employment. The Executive covenants and
agrees that during the Term and for a period of one (1) year after the
termination of his employment, whether upon expiration of the Term or otherwise,
the Executive will not directly or indirectly, for his benefit or for the
benefit of any other person, firm or entity, solicit or offer employment to or
employ persons who at termination were, or at any time during the preceding six
(6) months prior thereto had been, known to be in the employ of the Company,
without the Company's written consent which can be withheld within the Company's
sole discretion.
Section 10. Confidentiality; Proprietary Information.
(a) Unless he obtains the prior written consent of the Company (which
consent shall not be unreasonably withheld), the Executive shall keep
confidential and shall refrain from using for the benefit of any person or
entity other than the Company or any entity which is a subsidiary of the
Company, any material document or information obtained from the Company in the
course of his employment concerning its properties, operations or business
(unless such document or information is readily ascertainable from public or
published information or trade sources or has otherwise been made available to
the public through no fault of his own) until the same ceases to be material (or
becomes so ascertainable or available); provided, however, that nothing in this
Section 10 shall prevent the Executive, with or without the Company's consent,
from participating in or disclosing documents or information in connection with
any judicial or administrative investigation, inquiry or proceeding to the
extent that such participation or disclosure is required under applicable law.
(b) The Executive acknowledges that during the course of his employment
with the Company he may develop or otherwise acquire papers, files or other
records, whether in human or machine readable form, involving or relating to
confidential or secret processes, formulas, discoveries, inventions, machinery,
plans, design information of any kind, devices, material, research, new product
development, customers or customer lists. All such papers, files, disks, and
other records shall be the exclusive property of the Company and shall, together
with any and all copies thereof, be returned to the Company upon Executive's
termination of employment.
Section 11. Injunctive Relief.
The Executive agrees that his violation or threatened violation of any
of the provisions of Sections 9 and 10 of this Agreement shall cause immediate
and irreparable harm to the Company. In the event of any breach or threatened
breach of said provisions, the Executive consents to the entry of preliminary
and permanent injunctions by a court of competent jurisdiction prohibiting such
party from any violation or threatened violation of these provisions and
compelling the Executive to comply with these provisions. This Section 11 shall
not affect or limit, and the injunctive relief provided in this Section 11 shall
be in addition to, any other remedies available to the Company at law or in
equity. In the event an injunction is issued against any such conduct by the
Executive, the period referred to in Section 9 of this Agreement shall continue
until the later of the expiration of the period set forth therein or one (1)
month from the date a final judgment enforcing such provisions is entered and
the time for appeal has lapsed.
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Section 12. Indemnification and Attorneys' Fees.
The Company shall provide the Executive with payment of legal fees and
indemnification for claims and liabilities arising out of or related to his
employment with the Company to the maximum extent permitted by the New York
Limited Liability Company Law. If the Executive is the prevailing party in an
action, suit, or proceeding to enforce the terms of this Agreement, the Company
shall indemnify and hold the Executive harmless against reasonable costs,
including legal fees and expenses, incurred by him in connection with or arising
out of any such action, suit, or proceeding.
Section 13. Survival of Covenants.
The covenants and agreements of the Executive and the Company as set
forth in Sections 9, 10, 11, and 12 of this Agreement survive any termination of
this Agreement, except as otherwise expressly provided.
Section 14. Applicable Law.
This Agreement shall in all respects be construed and interpreted in
accordance with, and the rights of the parties shall be governed by, the laws of
the State of New York applicable to contracts executed and to be performed
wholly within such State. Each party hereby (a) consents to the exclusive
jurisdiction of the United States District Court for the Southern District of
New York and Supreme Court of the State of New York in the County of New York in
any action relating to or arising out of this Agreement, (b) agrees that any
process in any action commenced in such court under this Agreement may be served
upon the Executive personally, by certified or registered mail, return receipt
requested, or by an overnight courier service which obtains evidence of
delivery, with the same full force and effect as if personally served upon the
Executive in New York City in addition to any other method of service permitted
by law, and (c) waives any claim that the jurisdiction of any such tribunal is
not a convenient forum for any such action and any defense of lack of in
personam jurisdiction with respect thereto.
Section 15. Notices.
All notices provided for in this Agreement shall be in writing signed
by the party giving such notice, and delivered personally or sent by overnight
courier, mail or messenger against receipt thereof or sent by registered or
certified mail, return receipt requested, or by facsimile transmission or
similar means of communication if receipt is confirmed or if transmission of
such notice is confirmed by mail as provided in this Section 15. Notices shall
be effective when received and shall in any event be deemed to have been
received and to be effective (i) on the date of personal delivery or telecopy
or, (ii) if sent by certified or registered mail, return receipt requested, on
the fifth (5th) business day after the date of mailing, or (iii) if sent by
overnight courier, on the first business day following the date of deposit with
the courier. Notices shall be sent to the parties at their respective addresses
set forth at the beginning of this Agreement or by telecopier, to the Company at
(212) 780-
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6075 or to the Executive at (000) 000-0000. Notices to the Company
shall be address to the attention of the person executing this Agreement on
behalf of the Company. Either party may, by like notice, change the address,
person, or telecopier number to which notice shall be sent.
Section 16. Miscellaneous.
(a) Severance Payments. The severance and other payments and benefits
to which the Executive is entitled under Sections 6, 7 and 8 hereof constitute
the only compensation to which the Executive is entitled in the event of the
termination of his employment with the Company.
(b) Entire Agreement. This Agreement together with the confidentiality
provisions of the Company's Third Amended and Restated Operating Agreement
constitutes the entire agreement of the Company and the Executive as to the
subject matter hereof, superseding all prior written and prior or
contemporaneous oral understanding or agreements, including any previous
employment agreements, or understandings with respect to the subject matter
covered in this Agreement. This Agreement may not be modified or amended, nor
may any right be waived, except by a writing which expressly refers to this
Agreement, states that it is intended to be a modification, amendment, or waiver
and is signed by both parties in the case of a modification or amendment or by
the party granting the waiver. No course of conduct or dealing between the
parties and no custom or trade usage shall be relied upon to vary the terms of
this Agreement. The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion 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.
(c) Assignment; Parties in Interest. This Agreement and the rights and
obligations of the parties hereto shall bind and inure to the benefit of the
Executive and his legal representatives and heirs and the Company and any
successor or successors of the Company by reorganization, merger, or
consolidation and any assignee of all or substantially all of its business and
properties, but, except as to any such legal representatives or heirs of the
Executive or successor or assignee of the Company, neither this Agreement nor
any rights or benefits hereunder may be assigned by the Company or the
Executive. Nothing in this Agreement, express or implied, is intended to or
shall confer upon any other person any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
(d) Partial Invalidity.
(i) If any term, covenant or condition of this Agreement or the
application thereof to any party or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement, or the application of
such term, covenant or condition to parties or circumstances other than those as
to which it is held invalid or unenforceable, shall not be affected thereby and
each term, covenant or condition of this Agreement shall be valid and be
enforced to the fullest extent permitted by law, and any court having
jurisdiction may reduce the scope of any provision of this Agreement so that it
complies with applicable law.
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(ii) In addition to, and not in limitation of, the provisions
of Section l6(d)(i) of this Agreement, the parties agree that the
restrictive covenant contained in Section 9(a) of this Agreement is
reasonable, both in time and geographical scope, and in Section 9(b) is
reasonable as to time, in order to protect the Company and its
business. The parties further agree that such restrictive covenant is a
material inducement for the Company's entering into this Agreement and
that the Company would not execute this Agreement without the inclusion
of such covenant. The parties hereby agree that if any court or other
tribunal of competent jurisdiction determines that the restrictive
covenant contained herein is unenforceable, then such restrictive
covenant shall be deemed to be modified to the maximum legally
permissible time, geographical area, and scope in accordance with the
determination by the court or other tribunal and shall remain in full
force and effect.
(e) Headings. The headings in this Agreement are for convenience of
reference only and shall not affect in any way the construction or
interpretation of this Agreement.
(f) Counterparts. This Agreement may be executed by either of the
parties hereto in counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same instrument.
(g) Acknowledgment. The Executive acknowledges that he has had the
opportunity to be represented by separate counsel in connection with the
negotiation, execution and delivery of this Agreement and has consulted with
such advisers as he has deemed appropriate in connection with this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
JUPITER COMMUNICATIONS, LLC
By: /s/ Xxxxxx XxXxxx /s/ Xxxx Xxxxxxxxxx
----------------- -------------------
Name: Xxxxxx XxXxxx Xxxx Xxxxxxxxxx
Title: CEO
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SCHEDULE 3
Minimum Salary Payable
------------------------- -------------------- ------------------- ----------------------
Fiscal Years ending
December 31, 1997 and Fiscal Year ending Fiscal Year ending Fiscal Year ending
December 31, 1998 December 31, 1999 December 31, 2000 December 31, 2001
------------------------- -------------------- ------------------- ----------------------
$155,000 $172,500 $192,500 $215,000
------------------------- -------------------- ------------------- ----------------------
Bonus Payable*
Fiscal Year ending December Fiscal Year ending Fiscal Year ending Fiscal Year ending
31, 1998 December 31, 1999 December 31, 2000 December 31, 2001
--------------------------- -------------------- -------------------- --------------------
Revenue Revenue Revenue
Revenue Target Bonus Target Bonus Target Bonus Target Bonus
--------------------------- -------------------- -------------------- --------------------
$13MM** $50,000 $20MM** $67,500 $28MM** $85,000 $37MM** $102,500
$16MM*** $100,000 $23MM*** $135,000 $31MM*** $170,000 $40MM*** $205,000
$18MM $150,000 $26MM $202,500 $34MM $255,000 $43MM $307,500
* Fiscal Year ending December 31, 1997 Bonus: $30,000
** Minimum Revenue Targets for purposes of Section 3(b)(ii).
*** Intermediate Revenue Targets for purposes of Section 6(b)(iii).
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SCHEDULE 4(a)
Jupiter Communications, LLC
Schedule of Benefits
Standard Company Benefits:
Medical Insurance: Oxford (Freedom Plan)
Dental Insurance: Oxford (Premium Plan)
Long Term Disability: First Fortis, providing benefits equal to 60% of
salary
Short Term Disability: First Fortis
Life Insurance: First Fortis, in an amount equal to $15,000
AD&D: First Fortis
401(k) plan, with Company matching 25% of contributions.
Additional Executive Benefits:
Supplemental Long Term Disability coverage, from The Equitable.
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