EXHIBIT 10.43
EMPLOYMENT AGREEMENT
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AGREEMENT made as of the 29th day of November, 2004 (the "Effective Date"),
by and between XXXXX Online, Inc. with its principal office at 00 Xxxxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxxx ("Company"), and Xxxxxx Xxxxxx having an address at
000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000 ("Employee").
W I T N E S S E T H:
WHEREAS, the Company operates a financial information business; and
WHEREAS, the Company desires to employ the Employee as Executive Vice
President of Sales and to be assured of his services as such on the terms and
conditions set forth herein; and
WHEREAS, the Employee is willing to accept such employment on such terms
and conditions.
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
hereinafter set forth, the parties agree as follows:
1. Employment. The Company shall employ the Employee and the Employee shall
serve the Company, upon the terms and conditions hereinafter set forth.
2. Term. The term of the Employee's employment shall commence on the
Effective Date and unless terminated earlier or extended as provided below,
shall continue for a period of two years from the Effective Date (the "Initial
Term"). On each anniversary date after the expiration of the Initial Term, the
employment of Employee shall be renewed and extended for additional one year
periods unless either party provides written notice to the other party, of his
or its, as the case may be, desire to terminate this Agreement at least thirty
(30) days prior to the renewal date (such period, together with the Initial
Term, shall be known hereinafter as the "Employment Term").
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3. Duties. During the Employment Term, the Employee shall have such duties,
functions, authority and responsibilities normally associated with the position
of Executive Vice President of Sales. During the Employment Term, the Employee
shall devote his full attention and business time to the business and affairs of
the Company and the Employee will use his best efforts to perform faithfully and
efficiently, and to discharge the Employee's responsibilities and duties under
this Agreement. Notwithstanding the foregoing, the Employee may devote such time
to manage his personal affairs and to serve on community, corporate, civic,
professional or charitable boards or committees, so long as such activities do
not unreasonably interfere with the performance of the Employee's duties and
responsibilities under this Agreement.
4. Compensation and Employee Benefits. The Employee's base salary during
the Employment Term shall be no less than $195,000 per year unless mutually
agreed upon by the parties, payable in accordance with the Company's payroll
practices as in effect from time to time. The Employee's base salary will be
reviewed annually by the Company's Board of Directors (the "Board") to determine
whether an increase is warranted or appropriate. The Employee shall also receive
75,000 stock options to purchase the Company's Common Stock at an exercise price
equal to the closing price of the Company's Common Stock on the date that the
Company files a Form 8-K announcing the Employee's appointment pursuant to the
terms and conditions of the Company's 1999 Stock Option Plan. The Employee also
will be entitled to be considered for awards each year under the Company's then
existing incentive bonus program, which may take into account individual and
Company-wide performance, or such other performance criteria as the Board may
from time to time apply.
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5. Benefits. During the Employment Term, the Employee shall have the right
to participate in such health and disability insurance plans which the Company
may provide to its senior executive officers and for which the Employee is
eligible (e.g. long term disability, life insurance and medical insurance for
the Employee and his dependents). During the Employment Term, the Employee will
be entitled to four weeks of paid vacation in accordance with the Company's
policy. Such vacation may be taken in the Employee's discretion with the prior
approval of the Company, and at such time or times as are not inconsistent with
the reasonable business needs of the Company.
6. Business Expenses. All reasonable travel, entertainment, and other
expenses incident to the performance of the Employee's duties or the rendering
of services incurred on behalf of the Company by the Employee during the
Employment Term shall be paid by the Company.
7. Termination. Notwithstanding the provisions of Section 2 hereof, the
Employee's employment with the Company may be earlier terminated as follows:
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(a) By action taken by the Board, the Employee may be discharged for
cause (as defined below), effective as of such time as the Board shall
determine. Upon discharge of the Employee pursuant to this Section 7(a), the
Company shall have no further obligation or duties to the Employee, except for
payment of base salary through the effective date of termination. The Employee
shall have no further obligations or duties to the Company, except as provided
in Section 8.
(b) In the event of (i) the death of the Employee or (ii) by action of
the Board in the event of the inability of the Employee, by reason of physical
or mental disability, to continue substantially to perform his duties hereunder
for an aggregate period of 180 days during the Employment Term, during which 180
day period salary and any other benefits hereunder shall not be suspended or
diminished. Upon any termination of the Employee's employment under this Section
7(b), the Company shall have no further obligations or duties to the Employee,
and the Employee shall have no further obligations or duties to the Company,
except as provided in Section 8.
(c) In the event that the Employee's employment is terminated by the
Company for whatever reason (other than pursuant to Items (a) and (b) hereof),
or if the Company decides not to renew the Agreement pursuant to Section 2
hereof, or if the Company elects not to employ Employee under any other terms,
the Company shall pay to the Employee, in addition to accrued salary and
benefits payable to the Employee through the date of termination of employment,
a severance payment equal to the sum of (x) the Employee's then applicable base
salary and (y) the average of the last two year's cash bonuses paid by the
Company to the Employee, if applicable.
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(d) For purposes of this Agreement, the Company shall have "cause" to
terminate the Employee's employment under this Agreement upon (i) the failure by
the Employee to substantially perform his duties under this Agreement except for
those reasons covered by Section 7(b), (ii) the conviction of the Employee in
criminal misconduct (including embezzlement and criminal fraud) which is
materially injurious to the Company, monetarily or otherwise, (iii) the
conviction of the Employee of a felony, or (iv) gross negligence on the part of
the Employee. The Company shall give written notice to the Employee, which
notice shall specify the grounds for the proposed termination and the Employee
shall be given thirty (30) days to cure if the grounds arise under clauses (i)
or (iv) above.
8. Confidentiality; Noncompetition; Inventions.
(a) The Company and the Employee acknowledge that the services to be
performed by the Employee under this Agreement are unique and extraordinary and,
as a result of such employment, the Employee will be in possession of
confidential information relating to the business practices of the Company. The
term "confidential information" shall mean any and all information (oral or
written) relating to the Company or any of its affiliates, or any of their
respective activities, other than such information which can be shown by the
Employee to be in the public domain (such information not being deemed to be in
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the public domain merely because it is embraced by more general information
which is in the public domain) other than as the result of breach of the
provisions of this Section 8, including, but not limited to, information
relating to: trade secrets, proprietary information, personnel lists, financial
information, research projects, services used, pricing, customers, customer
lists and prospects, product sourcing, marketing and selling and servicing. The
Employee agrees that he will not, during his employment or subsequent to the
termination of employment, directly or indirectly, use, communicate, disclose or
disseminate to any person, firm or company any confidential information
regarding the clients, customers or business practices of the Company acquired
by the Employee during his employment by Company, without the prior written
consent of Company; provided, however, that the Employee understands that
Employee will be prohibited from misappropriating any trade secret at any time
during or after the termination of employment. At no time during the Employment
Term, or thereafter shall the Employee directly or indirectly, disparage the
commercial, business or financial reputation of the Company.
(b) In consideration of Company's hiring Employee, the payment by the
Company to the Employee as described herein and for other good and valuable
consideration, the Employee hereby agrees that he shall not, during the
Employment Term and for a period of one (1) year following such employment (the
"Restrictive Period"), directly or indirectly, take any action which constitutes
an interference with or a disruption of any of the Company's business
activities.
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(c) For purposes of clarification, but not of limitation, the Employee
hereby acknowledges and agrees that the provisions of subparagraph 8(b) above
shall serve as a prohibition against him, during the Restrictive Period, from:
(1) Directly or indirectly, contacting, soliciting or directing any
person, firm, or company to contact or solicit, any of the Company's customers,
prospective customers, or business partners for the purpose of selling or
attempting to sell, any products and/or services that are the same as or similar
to the products and services provided by the Company to its customers during the
Restrictive Period. In addition, the Employee will not disclose the identity of
any such business partners, customers, or prospective customers, or any part
thereof, to any person, firm, company, association, or other entity for any
reason or purpose whatsoever; and
(2) Directly or indirectly, engaging or carrying on in any manner
(including, without limitation, as principal, shareholder, partner, lender,
agent, employee, consultant, or investor (other than a passive investor with
less than a five percent (5%) interest) trustee or through the agency of any
company, partnership, limited liability company, or association) in any business
that is in competition with the business of the Company; and
(3) Soliciting on his own behalf or on behalf of any other person, the
services of any person who is an employee of the Company, and soliciting any of
the Company's employees to terminate employment with the Company.
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(d) Upon the termination of the Employee's employment for any reason
whatsoever, all documents, records, notebooks, equipment, price lists,
specifications, programs, customer and prospective customer lists and other
materials which refer or relate to any aspect of the business of the Company
which are in the possession or under the control of the Employee including all
copies thereof, shall be promptly returned to the Company.
(e) Any and all inventions, discoveries, improvements, ideas and works
of authorship (herein referred to as "Intellectual Property"), whether or not
patentable, copyrightable or subject to other forms of protection, made,
developed, or created by Employee related to Employee's employment (whether at
the request or suggestion of the Company or otherwise, whether alone or in
conjunction with others, and whether during regular hours of work or otherwise)
during the Employment Term shall be the Company's exclusive property and, after
the termination of Employee's employment, Employee shall promptly deliver to an
appropriate representative of the Company all electronic data, computer
programs, papers, drawings, models and other material relating to any
Intellectual Property made, developed or created by Employee. Employee shall, at
the request of the Company, whether during or after Employee's period of
employment, and without pay, execute a specific assignment of title to the
Company and do anything else reasonably necessary to protect the Company's
interests in such Intellectual Property and/or to vest in the Company title to
such Intellectual Property anywhere in the world. The expense of securing any
such protection shall be borne by the Company.
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(f) The parties hereto hereby acknowledge and agree that (i) the Company
would be irreparably injured in the event of a breach by the Employee of any of
his obligations under this Section 8, (ii) monetary damages would not be an
adequate remedy for any such breach, and (iii) the Company shall be entitled to
injunctive relief, in addition to any other remedy which it may have, in the
event of any such breach. In addition, the parties agree that the provisions of
this Section 8 shall survive the termination of this Agreement.
(g) The rights and remedies enumerated in Section 8 shall be independent
of the other, and shall be enforceable, and all of such rights and remedies
shall be in addition to, and not in lieu of, any other rights and remedies
available to the Company under law or in equity.
(h) If any provision contained in this Section 8 is found to be
unenforceable by reason of the extent, duration or scope thereof, or otherwise,
then the court making such determination shall have the right to reduce such
extent, duration, scope or other provision and in its reduced form any such
restriction shall thereafter be enforceable as contemplated hereby.
(i) It is the intent of the parties hereto that the covenants contained
in this Section 8 shall be enforced to the fullest extent permissible under the
laws and public policies of each jurisdiction in which enforcement is sought
(the Employee hereby acknowledging that said restrictions are reasonably
necessary for the protection of the Company). Accordingly, it is hereby agreed
that if any of the provisions of this Section 8 shall be adjudicated to be
invalid or unenforceable for any reason whatsoever, said provision shall be
(only with respect to the operation thereof in the particular jurisdiction in
which such adjudication is made) construed by limiting and reducing it so as to
be enforceable to the extent permissible, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of said
provision in any other jurisdiction.
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9. Prior Agreements. This Agreement cancels and supersedes any and all
prior agreements and understandings between the parties hereto respecting the
employment of Employee by the Company.
10. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be delivered personally or sent by
registered or certified mail, return receipt requested, to the other party
hereto at his or its address as set forth in the beginning of this Agreement.
Either party may change the address to which notices, requests, demands and
other communications hereunder shall be sent by sending written notice of such
change of address to the other party in the manner above provided.
11. Assignability and Binding Effect. This Agreement shall inure to the
benefit of and shall be binding upon the executors, administrators, successors
and legal representatives of Employee and shall inure to the benefit of and be
binding upon the Company and its successors and assigns. The Employee may not
delegate or assign his duties or rights under this Agreement.
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12. Waiver. Waiver by either party hereto of any breach or default by the
other party in respect of any of the terms and conditions of this Agreement
shall not operate as a waiver of any other breach or default, whether similar to
or different from the breach or default waived.
13. Complete Understanding: Amendment and Termination. This Agreement
constitutes the complete understanding between the parties with respect to the
employment of Employee hereunder and no statement, representation, warranty or
covenant has been made by either party with respect thereto except as expressly
set forth herein. This Agreement shall not be altered, modified, amended or
terminated except by written instrument signed by each of the parties hereto
provided, however, that the waiver by either party hereto of compliance with any
provision hereof or of any breach or default by the other party hereto need be
signed only by the party waiving such provision, breach or default.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which taken together
shall constitute one and the same Agreement.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Connecticut.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
XXXXX ONLINE, INC.
By: /s/ Xxxxx Xxxxxxxxxx
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Its: Chief Executive Officer and President
Date: November 29, 2004
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
Date: November 29, 2004
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