1
Exhibit 10.1
Employment Agreement dated as of
May 14, 1997 by and between PC411, Inc.
(the "Company") and Xxxx Xxxxx (the "Employee")
-----------------------------------------------
The Company and the Employee agree to the Employee's employment by the
Company on the following terms:
1. EMPLOYMENT: TERM.
The Company will employ the Employee, and the Employee will work for
the Company, as its President and Chief Executive Officer ("CEO"), for a term
commencing on May 14, 1997 and, unless sooner terminated in accordance with the
provisions of Section 11, terminating on June 30, 1998 (the "Initial Term"). The
Initial Term shall be extended for successive one-year periods (the "Additional
Terms") unless terminated at the end of the Initial Term or any Additional Term
by either party upon ninety (90) days' prior written notice given to the other
party (the Initial Term and any Additional Terms shall be referred to as the
"Employment Period").
2. DUTIES.
During the Employment Period, the Employee shall serve as the President
and CEO of the Company and perform such duties as shall, from time to time, be
reasonably delegated or assigned to the Employee by the Board of Directors of
the Company consistent with his position. Thus, the Employee shall: (i) expend
substantially all of his working time for the Company; (ii) devote his best
efforts, energy and skill to the services of the Company and the promotion of
its interests; and (iii) not take part in activities known by Employee to be
detrimental to the best interests of the Company and/or any affiliate thereof.
During the Employment Period, the Employee shall be permitted to operate his
affiliate, Electronic Pictures Corp., provided that the operation thereof will
not: (i) violate any law or any provision hereof; (ii) limit the Company's or
its affiliate's activities; (iii) create any conflict between the Employees
fiduciary obligations to the Company and its affiliates; or (iv) materially
interfere with the performance of the Employee's duties hereunder. The
Employee's duties and job location will be carried out from offices in
Connecticut or New York.
3. COMPENSATION.
3.1 In consideration for the services to be performed by the Employee
for the Company during the Employment Period, the Company shall compensate
Employee at an initial annual base salary of $180,000 ("Base Salary"), payable
in accordance with the Company's standard payroll practices. The amount of the
Base Salary shall be subject to review at the end of each calendar year and may
be increased (any such
2
increase effective as of the following January 1), but not decreased, at the
Company's sole discretion.
3.2 During the Employment Period, Employee shall also be entitled to an
incentive bonus based on each calendar year or portion thereof in an amount
equal to a percentage of Base Salary earned and paid during such calendar year,
and calculated in accordance with performance goals, to be determined annually
by the Employee and the Board of Directors. The percentage of Base Salary and
the performance goals for the first calendar year of the Employment Period shall
be determined as soon as practicable following commencement of this Agreement,
provided, the parties hereto shall exert their best efforts to make such
determination by September 30, 1997.
4. BENEFITS AND REIMBURSEMENT OF EXPENSES.
4.1 Employee shall receive all benefits and fringes, if any, made
available to other employees and officers of the Company to the full extent of
Employee's eligibility, including medical, dental, life insurance and disability
insurance benefits and pension and other similar plans, provided that the
Employee shall be provided with life insurance at least equal to $500,000
(provided he is insurable at standard rates).
4.2 The Company shall pay directly, or reimburse the Employee for, all
reasonable and necessary expenses and disbursements incurred by him for and on
behalf of the Company in the performance of his duties under this Agreement. For
such purposes, the Employee shall submit to the Company itemized reports of such
expenses in accordance with the Company's policies. Employee shall be entitled
to a monthly automobile allowance of $550 per month.
4.3 Employee shall be entitled to paid vacations during the Employment
Period in accordance with the Company's then applicable policy for executive
employees, provided that the Employee shall not be entitled to less than four
(4) weeks paid vacation in each full contract year.
5. INVENTIONS AND PATENTS.
5.1 The Employee will promptly and fully disclose to the Company, or
any of its designees, any and all improvements, designs, ideas, works of
authorship, copyrightable works, discoveries, trademarks, copyrights, trade
secrets, formulae, processes, techniques, know-how, and data, whether or not
patentable, made or conceived or reduced to practice or learned by Employee,
either alone or jointly with others, during the period of Employee's employment
(whether or not during normal working hours) that are related to or useful in
the actual or anticipated business of the Company or any of its subsidiaries, or
result from tasks assigned Employee by the Company or its subsidiaries, or
result from use of premises or equipment owned, leased, or contracted for by the
Company or its subsidiaries (all said improvements,
2
3
inventions, designs, ideas, works of authorship, copyrightable works,
discoveries, trademarks, copyrights, trade secrets, formulae, processes,
techniques, know-how, data, patent applications, continuation applications,
continuation-in-part applications, file wrapper continuation applications and
divisional applications shall be collectively hereinafter called "Inventions").
All such Inventions shall be the sole property of the Company, its successors,
assigns and nominees, and Employee hereby assigns to the Company, without
further compensation, all rights, title and interest in and to such Inventions
and any and all related patents, patent applications, copyrights, copyright
applications, trademarks and trade names in the United States and elsewhere.
5.2 The Employee hereby assigns to the Company, without further
compensation, all of his interest as of the date hereof in the proposed joint
venture known as "American Web Station" (formerly known as "Time and Space
Inc.") between the Employee (and/or an affiliate thereof) and Hawthorne
Communications, Inc.
5.3 Except as listed on Annex A attached to this Agreement, Employee
will not assert any rights to any Inventions as having been made or acquired by
Employee prior to being employed by the Company, or since then, and not
otherwise covered by the terms of this Agreement. Employee shall not be
obligated to assign any Invention that may be wholly conceived by him after
Employee leaves the employ of the Company, except that Employee is so obligated
if such Invention shall involve the utilization of confidential information or
Proprietary Information (as defined herein) obtained while in the employ of the
Company. Employee shall not be obligated to assign any Invention that relates to
or would be useful in any business or activities in which the Company or any
subsidiary thereof is engaged if such Invention was conceived and reduced to
practice by Employee prior to his employment with the Company, provided that all
such Inventions are listed on the attached Annex A.
5.4 The Employee will keep and maintain adequate and current written
records of all Inventions (in the form of notes, sketches, drawings and as may
be specified by the Company), which records shall be available to and remain the
sole property of the Company at all times.
5.5 The Employee will assist the Company in obtaining and enforcing
patents, copyrights and other forms of legal protection of such Inventions in
any country. Upon request, the Employee will execute all applications,
assignments, instruments and papers and perform all acts necessary or desired by
the Company to assign all such Inventions fully and completely to the Company
and to enable the Company, its successors, assigns and nominees, to secure and
enjoy the full and exclusive benefits and advantages thereof. If the Company is
unable, after reasonable effort, to secure Employee's signature on any patent,
copyright or other analogous protection relating to an Invention, whether
because of Employee's physical or mental incapacity or for any other reason
whatsoever, Employee hereby irrevocably designates
3
4
and appoints the Company and its duly authorized officers and agents as his
agent and attorney-in-fact, to act for and in his behalf and stead to execute
and file any such application or applications and to do all other lawfully
permitted acts to further the prosecution and issuance of letters patent,
copyright or other analogous protection thereon with the same legal force and
effect as if executed by Employee.
5.6 Employee acknowledges that all original works of authorship which
are made by him (solely or jointly with others) within the scope of his
employment and which are protectable by copyright are being created at the
instance of the Company and are "works made for hire," as that term is defined
in the United States Copyright Act (17 USCA, Section 101). If such laws are
inapplicable or in the event that such works, or any part thereof, are
determined by a court of competent jurisdiction not to be a work made for hire
under the United States copyright laws, this Agreement shall operate as an
irrevocable and unconditional assignment by Employee to the Company of all of
his right, title and interest (including, without limitation all rights in and
to the copyrights throughout the world, including the right to prepare
derivative works and the right to all renewals and extensions) in the works in
perpetuity.
5.7 The Employee understands that certain obligations under this
Section 5 will continue after the termination of his employment with the Company
and that during the Employment Period Employee will perform his obligations
under this Section 5 without further payment of any kind, except for
reimbursement of expenses incurred at the request of the Company. The Employee
further understands that if he is not employed by the Company as an employee at
the time he is requested to perform any obligations under this Section 5, he
shall receive for such performance a reasonable per diem fee, as well as
reimbursement of any expenses incurred at the request of the Company.
6. PROPRIETARY INFORMATION.
6.1 The Employee recognizes that his relationship with the Company is
one of high trust and confidence by reason of his access to and contact with the
trade secrets and confidential and proprietary information of the Company and
any subsidiaries of the Company. Except as may be otherwise required by law, the
Employee will not at any time, either during his employment with the Company or
thereafter, disclose to others, or use for his own benefit or the benefit of
others, any Inventions or any confidential, proprietary or secret information
owned, possessed or used by the Company and any subsidiaries of the Company
(collectively, "Proprietary Information"). By way of illustration, but not
limitation, Proprietary Information includes trade secrets, processes, data,
know-how, marketing plans, forecasts, unpublished financial statements, budgets,
licenses, prices, costs and employee, customer and supplier lists.
4
5
6.2 The Employee's undertakings and obligations under this Section 6
will not apply, however, to any Proprietary Information which: (i) is or becomes
in the public domain through no action on his part, (ii) is generally disclosed
to unrelated third parties, or (iii) is approved for release by written
authorization of the Board of Directors of the Company or its designees.
6.3 Upon termination of employment with the Company or at any other
time upon request, the Employee will promptly deliver to the Company at its
expense all notes, memoranda, notebooks, drawings, records, reports, files and
other documents (and all copies or reproductions of such materials) in his
possession or under his control, whether prepared by him or others, which
contain Proprietary Information. The Employee acknowledges that this material is
the sole property of the Company.
7. ABSENCE OF RESTRICTIONS UPON DISCLOSURE AND COMPETITION.
7.1 The Employee represents that, except as has been disclosed in
writing to the Company, he is not bound by the terms of any agreement with any
previous employers or other party to refrain from using or disclosing any trade
secret or confidential or proprietary information in the course of his
employment with the Company or to refrain from such competing, directly or
indirectly, with the business of such previous employer or any other party.
7.2 The Employee further represents that his performance of all the
terms of this Agreement and as an employee of the Company does not and will not
breach any agreement to keep in confidence proprietary information, knowledge or
data acquired by him in confidence or in trust prior to his employment with the
Company, and will not disclose to the Company or induce the Company to use any
confidential or proprietary information or material belonging to any previous
employer or others.
8. COVENANT NOT TO COMPETE.
(a) Unless otherwise approved by the Board of Directors in writing,
during the period specified in subsection (b) below, the Employee shall not
directly engage (whether for compensation or without compensation) in any
business activity, other than Electronic Pictures Corporation as provided in
Section 2 hereof, either as an individual proprietor, partner, stockholder,
officer, employee, director, consultant or in any other capacity whatsoever
(otherwise than as the holder of not more than one percent (1%) of the total
outstanding stock of a publicly held company), which competes with any business
conducted by the Company or any of its subsidiaries at any time during the
period of his employment with the Company.
(b) The restrictions specified in subsection (a) above shall be
applicable during the period Employee is employed by the Company and for a
period of one year thereafter.
5
6
(c) The restrictions set forth in this Section 8 are considered by the
parties to be reasonable for the purposes of protecting the business of the
Company. However, if any such restriction is found by any court of competent
jurisdiction to be unenforceable because it extends for too long a period of
time or over too great a range of activities or in too broad a geographic area,
it shall be interpreted to extend only over the maximum period of time, range of
activities or geographic areas as to which it may be enforceable.
(d) It shall not be considered a competitive activity within the
meaning of subsection (a) above for the Employee to be a member of the faculty
or staff of a university, college or other educational institution, and to
undertake all activities which are normally associated with such positions.
9. COVENANT NOT TO SOLICIT EMPLOYEES.
Unless otherwise approved by the Board of Directors in writing, the
Employee shall not at any time, during or for a period of one year after his
employment by the Company, recruit or otherwise solicit or induce any employee
of the Company or any of its subsidiaries to terminate their employment with, or
otherwise cease their relationships with, the Company or any of its
subsidiaries.
10. INJUNCTIVE RELIEF.
Employee acknowledges and agrees that, in the event he shall violate
any provisions of Sections 6 through 9, the Company will be without an adequate
remedy at law and, accordingly, will be entitled to enforce such restrictions by
temporary or permanent injunctive or mandatory relief obtained in any action or
proceeding instituted in any court of competent jurisdiction without the
necessity of proving damages and without prejudice to any other remedies which
it may have at law or in equity.
11. TERMINATION.
11.1 Employee's employment shall automatically be terminated upon the
death of the Employee or Employee's voluntarily leaving the employ of the
Company and, in addition, Employee's employment may be terminated, at the sole
discretion of the Company, and without recourse by the Employee, upon the
occurrence of either of the following events:
(a) in the event of the Employee's disability as set forth in
Section 11.2 below, but only upon fourteen (14) days' prior written
notice from the Company to the Employee;
6
7
(b) in the event that the Board of Directors determines in
writing that there is cause for immediate termination, which shall mean
that the Board of Directors determines either (i) Employee has failed
to perform material duties as an employee and officer of the Company
following receipt of a written notice from the Board of Directors,
which identifies the manner in which the Employee has failed to perform
duties; (ii) Employee has failed to follow any reasonable policies or
directives of the Board of Directors after having received written
notice from the Board of Directors that the Employee is not following
such policies or directions, and Employee fails to cure such failure
within 10 business days of such notice; (iii) Employee has engaged in
willful, malicious or bad faith conduct materially detrimental to the
Company; (iv) Employee has been convicted of any felony; or (v)
Employee has materially breached this Agreement.
11.2 Employee shall be deemed disabled if, in the reasonable opinion of
the Board of Directors of the Company, as confirmed by competent medical advice,
he shall become physically or mentally unable to perform his duties for the
Company and such incapacity shall have continued for any period of ninety (90)
consecutive days.
11.3 In the event the Company terminates the Employee's employment for
any reason other than in accordance with Section 11.1 or in the event of
non-renewal of the Employment Period by the Company pursuant to Section 1, then
the Company shall pay to the Employee all amounts earned by the Employee
pursuant to Section 3 together with any reimbursable amount pursuant to Section
4, plus, provided he signs a release of all claims arising out of his employment
with the Company or termination thereof (other than his right to
indemnification, which shall survive) in such form as reasonably requested by
the Company, severance pay equal to the amount of Base Salary he would have
received if he was employed for six months after termination of the Employment
Period. Such severance shall be paid in six (6) equal monthly installments,
subject to any required withholding, beginning on the first day of the month
immediately following the Employee's execution of the aforesaid release,
provided, however, that on such date the Employee is in compliance with and
thereafter he continues to comply with any and all material provisions that
survive the termination of this Agreement. The Company and its affiliated
entities shall have no other obligations to the Employee.
(a) For purposes of this Section 11.3, in the event the
Employee shall resign from his employment with the Company subsequent
to any materially adverse change in his title, nature of duties, powers
or responsibilities or employee benefits or a relocation of his primary
place of employment from New York or Connecticut or other material
breach of this Agreement by the Company, such resignation shall be
deemed to be a termination of employment by the Company other than in
accordance with Section 11.1.
7
8
(b) The Employee shall be under no obligation to mitigate the
amount of any payment provided for under this Section 11.3 by seeking
other employment or otherwise nor shall such amount be offset by any
compensation which the Employee may receive from future employment or
otherwise.
12. SERVICE AS DIRECTOR.
During the Employment Period, the Employee shall, if elected or
appointed, serve as a Director of the Company and/or any affiliate of the
Company without receipt of any additional compensation therefor unless otherwise
provided by the Board of Directors.
13. STOCK OPTIONS.
On or before the date of this Agreement, the Company shall have granted
to Employee options under the PC411, Inc. 1997 Stock Option Plan (the "1997
Plan") to purchase 364,000 shares of the Company's common stock at $4.40 per
share (the "Options"). The Options are intended to constitute Incentive Stock
Options (as defined in the 1997 Plan) only to the extent the aggregate Fair
Market Value (as defined in the 1997 Plan), as of the date of grant, of the
shares of Common Stock with respect to which such options are exercisable for
the first time during any calendar year does not exceed $100,000 or such other
amount as specified in Section 422 of the Internal Revenue Code of 1986, as
amended. All other Options will be Nonqualified Stock Options (as defined in the
1997 Plan). Subject to the terms and conditions of the 1997 Plan, one third of
such options are exercisable upon the consummation of the Company's initial
public offering (the "IPO") and one third thereof are exercisable on each of the
first and second anniversaries of the IPO, provided the Employee is employed by
the Company on such dates. Employee may exercise the Options through a cashless
exercise method. As soon as it is practicable, the Company shall use its best
efforts to file and keep in effect a Registration Statement on Form X-0, Xxxx
X-0 or other applicable form to register under the Securities Act of 1933, as
amended, the shares of Common Stock issuable to the Employee upon exercise of
the Options and the resale thereof by him. In the event New Valley Corporation
disposes of any of its shares in the Company, the Company will use its best
efforts to take all necessary actions to permit Employee, if he so elects, to
dispose of a proportionate percentage of his shares in the Company (or shares he
could acquire upon the exercise of his vested options) on the same terms and
conditions of those that apply to New Valley Corporation.
14. ASSIGNMENT.
This Agreement, as it relates to the employment of the Employee, is a
personal contract and the rights and interests of the Employee hereunder may not
be sold,
8
9
transferred, assigned, pledged or hypothecated. This Agreement shall inure to
the benefit of and be binding upon the Company and its successors and assigns,
including without limitation, any corporation or other entity into which the
Company is merged, irrespective of whether or not the Company is the surviving
entity of such merger, or which acquires all of the outstanding shares of the
Company's capital stock, or all of substantially all of the assets of the
Company, provided, however, any such assignment shall be valid only so long as
Company or its successor is not relieved of any obligation hereunder and so long
as the assignee assumes the Company's obligations hereunder. To the extent
permitted by law, the Employee shall not have any power of anticipation,
alienation or assignment of payments contemplated hereunder, and all rights and
benefits of the Employee shall be for the sole personal benefit of the Employee,
and no other person shall acquire any right, title or interest hereunder by
reason of any sale, assignment, transfer, claim or judgment or bankruptcy
proceedings against the Employee.
15. NOTICES.
Any notice required or permitted to be given pursuant to this Agreement
shall be deemed given three (3) business days after such notice is mailed by
certified mail, return receipt requested, addressed as follows: (i) if to
Employee, at 00 Xxxxxxxxxx Xxxxx Xxxxx, Xxxxxxxxx, XX 00000; and (ii) if to the
Company, at PC411, Inc., 000 X.X. Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxx, Xxxxxxx
00000, Attention: Chief Financial Officer, or at such other address as either
party shall designate by written notice to the other party.
16. GOVERNING LAW.
This Agreement shall be governed by and enforced in accordance with the
laws of the State of New York. Any dispute or controversy with respect to this
Agreement, other than injunctive relief under Section 10, shall be submitted to
arbitration, in New York City, with the American Arbitration Association. The
decision of the arbitrators shall be final and binding upon the parties hereto
and may be entered in any court having jurisdiction. The prevailing party in
such arbitration proceeding shall be entitled to full reimbursement of the fees,
costs and expenses incurred therein.
17. WAIVER.
The waiver by either party of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent
breach. If any provision of this Agreement shall be held to be invalid or
unenforceable, such invalidity or unenforceability shall attach only to such
provision and not in any way affect or render invalid or unenforceable any other
provisions of this Agreement, and this Agreement shall be carried out as if such
invalid or unenforceable provision were not part of this Agreement.
9
10
18. INDEMNIFICATION.
The Employee shall be entitled to be indemnified by the Company for his
actions as an officer, director, employee, agent or fiduciary of the Company or
its affiliated entities to the fullest extent permitted by applicable law and
shall have legal fees and other expenses paid to him in advance of final
disposition of a proceeding provided he executes an undertaking to repay such
amounts if, and to the extent, required to do so by applicable law. The Company
shall cover the Employee under any directors and officers liability insurance
policy to the same extent as its other senior officers.
19. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between the parties
with respect to the Employee's employment by the Company and there are no
representations, warranties or commitments except as set forth herein. This
Agreement supersedes all prior and contemporaneous agreements, understandings,
negotiations and discussions, whether written or oral, of the parties hereto
relating to the transactions contemplated by this Agreement.
20. LOCK-UP AGREEMENT(S).
With respect to any future sale of securities of the Company, the
Employee will execute such lock-up agreement(s) as may be required by an
underwriter, the NASD, the Securities and Exchange Commission and any state
"blue sky" regulators provided, however, that the terms and conditions of such
lock-up agreement(s) must be substantially the same in all material respects
with any lock-up agreement(s) signed by other officers, directors, and
stockholders of the Company.
Executed as an Agreement as of May 14, 1997.
PC411, INC.
/s/ XXXX X. XXXXX /s/ XXXXXX X. XXXXXXXX
--------------------------- ---------------------------------
Xxxx X. Xxxxx Xxxxxx X. Xxxxxxxx
Vice President and
Chief Financial Officer
10
11
ANNEX A
Employment Agreement dated as of
May 14, 1997 by and between PC411, Inc.
(the "Company") and Xxxx Xxxxx (the "Employee")
-----------------------------------------------
The Employee represents that he has indicated on this Annex all
Inventions (as defined in the Agreement) in which he owned any right or interest
prior to his employment with the Company. The Employee agrees that any present
or future Inventions not listed in this Annex are subject to assignment under
the Agreement.
Brief Description Right, Title or Interest
of Inventions and Date Acquired
----------------- ------------------------
Employee hereby represents that the following relationships of
Electronic Pictures Corp. as well as his activities relating thereto will not
interfere nor otherwise pose a conflict with any of his ongoing duties,
obligations or responsibilities at the Company:
- Developing Strategic Alliances for Immersion Corporation (a
small technology company that has a 3D digitizing product
called Microscribe-3D).
- Developing Strategic Alliances for Digits N' Arts (a small
Canadian 3D software company).
- Consulting and/or representing many digital artists and
generally promoting and evangelizing Digital Art as a mass
medium art form.
11
