Exhibit 10.29
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EMPLOYMENT AGREEMENT
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This Employment Agreement (the "Agreement"), made this 1st day of December
1999 is entered into by and between Switchboard Incorporated, a Delaware
corporation (the "Company"), and Xxxx Xxxxxxxx (the "Employee").
1. Title; Capacity. The Employee shall serve as President, or in such
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other position as the Company or its Board of Directors (the "Board") may
determine from time to time. The Employee shall be subject to the supervision
of, and shall have such authority as is delegated to him by, the Board or such
officer of the Company as may be designated by the Board.
The Employee hereby accepts such employment and agrees to undertake the
duties and responsibilities inherent in such position and such other duties and
responsibilities as the Board or its designee shall from time to time reasonably
assign to him. The Employee agrees to devote his entire business time,
attention and energies to the business and interests of the Company while
employed by the Company.
2. At-Will Employment. The Employee shall be employed on an at-will
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basis, which means either party may terminate the employment relationship at any
time, for any reason or no reason, and with or without notice.
3. Compensation and Benefits.
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3.1 Salary. The Company shall pay the Employee a base salary at the
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annualized rate of one-hundred and sixty-five thousand dollars ($165,000), in
equal bi-weekly
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installments, consistent with the Company's regular payroll procedures.
Employee's salary shall be subject to adjustment, as determined by the Board.
3.2 Bonus. The Employee shall be eligible to receive an annual bonus
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of up to sixty thousand dollars ($60,000) for the one-year period beginning on
January 1, 1999, in the event that Employee meets certain criteria as set forth
in the Employee's 1999 Executive Incentive Plan. The Employee shall also be
eligible to receive an additional annual bonus for the same one-year period of
up to thirty-five thousand dollars ($35,000) in the event that he substantially
surpasses achievement of the criteria, as set forth in the 1999 Executive
Incentive Plan. Such bonuses shall be subject to adjustment thereafter as
determined by the Board.
3.3 Benefits. The Employee shall be entitled to participate in all
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benefit programs that the Company establishes and makes available to its
employees, if any, to the extent that Employee's position, tenure, salary, age,
health and other qualifications make him eligible to participate. The Employee
shall also be entitled to receive life insurance coverage an amount equal to
five times Employee's base salary (or $825,000 as of the date hereof) with the
Company to pay all applicable premiums. All increases in the amount of life
insurance, based upon upward adjustments in Employee's salary, are subject to
the Company's ability to obtain additional coverage.
4. Change in Control.
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4.1 Stock Options. In the event of a Change in Control, fifty
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percent (50%) of the Employee's outstanding unvested stock options shall
immediately vest and become exercisable in full, if:
(i) the Employee remains employed by the Company for a continuous
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period of six (6) months after the effective Change in Control date; or
(ii) the Employee elects to resign within six (6) months of the
effective Change in Control date because (a) the Employee's job is relocated
more than 35 miles from Westboro, Massachusetts or (b) the Employee's job title
and/or overall targeted cash compensation are materially reduced from levels in
effect immediately prior to the Change in Control.
4.2 Stock Options Upon Termination. If, within one year of the
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Change in Control Date, the Employee is terminated for any reason other than for
cause, one-hundred percent (100%) of the Employee's outstanding, unvested stock
options shall immediately vest and become exercisable in full.
4.3 "Change in Control" means an event or occurrence set forth in any
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one or more of subsections (a) through (d) below (including an event or
occurrence that constitutes a Change in Control under one of such subsections
but is specifically exempted from another such subsection):
(a) the acquisition by an individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")) (a "Person"), other than Banyan Worldwide
or CBS Corporation, of beneficial ownership of any capital stock of the Company
if, after such acquisition, such Person beneficially owns (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) 20% or more of either (i) the
then-outstanding shares of common stock of the Company (the "Outstanding Company
Common Stock") or (ii) the combined voting power of the then-outstanding
securities of the Company entitled to vote generally in the election of
directors (the "Outstanding Company
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Voting Securities"); provided, however, that for purposes of this subsection
(a), the following acquisitions shall not constitute a Change in Control: (i)
any acquisition directly from the Company (excluding an acquisition pursuant to
the exercise, conversion or exchange of any security exercisable for,
convertible into or exchangeable for common stock or voting securities of the
Company, unless the Person exercising, converting or exchanging such security
acquired such security directly from the Company or an underwriter or agent of
the Company), (ii) any acquisition by the Company, (iii) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by the Company
or any corporation controlled by the Company, or (iv) any acquisition by any
corporation pursuant to a transaction which complies with clauses (i) and (ii)
of subsection (c) of this Section; or
(b) such time as the Continuing Directors (as defined below) do not
constitute a majority of the Board (or, if applicable, the Board of Directors of
a successor corporation to the Company), where the term "Continuing Director"
means at any date a member of the Board (i) who was a member of the Board on
the date of the execution of this Agreement or (ii) who was nominated or elected
subsequent to such date by at least a majority of the directors who were
Continuing Directors at the time of such nomination or election or whose
election to the Board was recommended or endorsed by at least a majority of the
directors who were Continuing Directors at the time of such nomination or
election; provided, however, that there shall be excluded from this clause (ii)
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any individual whose initial assumption of office occurred as a result of an
actual or threatened election contest with respect to the election or removal of
directors or other actual or threatened solicitation of proxies or consents, by
or on behalf of a person other than the Board; or
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(c) the consummation of a merger, consolidation, reorganization,
recapitalization or statutory share exchange involving the Company or a sale or
other disposition of all or substantially all of the assets of the Company (a
"Business Combination"), unless, immediately following such Business
Combination, each of the following two conditions is satisfied: (i) all or
substantially all of the individuals and entities who were the beneficial owners
of the Outstanding Company Common Stock and Outstanding Company Voting
Securities immediately prior to such Business Combination beneficially own,
directly or indirectly, more than 50% of the then-outstanding shares of common
stock and the combined voting power of the then-outstanding securities entitled
to vote generally in the election of directors, respectively, of the resulting
or acquiring corporation in such Business Combination (which shall include,
without limitation, a corporation which as a result of such transaction owns the
Company or substantially all of the Company's assets either directly or through
one or more subsidiaries) (such resulting or acquiring corporation is referred
to herein as the "Acquiring Corporation") in substantially the same proportions
as their ownership, immediately prior to such Business Combination, of the
Outstanding Company Common Stock and Outstanding Company Voting Securities,
respectively; and (ii) no Person (excluding the Acquiring Corporation or any
employee benefit plan (or related trust) maintained or sponsored by the Company
or by the Acquiring Corporation) beneficially owns, directly or indirectly, 20%
or more of the then outstanding shares of common stock of the Acquiring
Corporation, or of the combined voting power of the then-outstanding securities
of such corporation entitled to vote generally in the election of directors
(except to the extent that such ownership existed prior to the Business
Combination); or
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(d) approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company.
5. Circumstances Triggering Receipt of Termination Benefits.
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5.1 Termination by Switchboard. Switchboard shall provide the
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Employee with the benefits set forth in Section 6 upon termination by
Switchboard of the Employee's employment at any time during the term of this
Agreement for reasons other than termination for "cause." For the purposes
hereof, "cause" shall be defined as the willful and repeated failure of the
Employee to perform substantially his duties, or action by the Employee
involving willful misfeasance, gross negligence or the commission of any
felonious action; provided, however, that termination for cause shall not be
effective unless the Employee shall have received written notice from
Switchboard of such failure (specifying in detail the facts and circumstances on
which Switchboard is relying) and a demand for substantial performance thirty
(30) days prior to such termination, and Switchboard determines that the
Employee shall have failed during such thirty (30) day period to resume the
diligent performance of his duties. If Employee, in good faith, disputes
Switchboard's determination that he has not so resumed the diligent performance
of his duties, the parties agree to submit such dispute to arbitration in
accordance with the provisions of Section 12 below.
5.2 Change in Control Termination. Switchboard shall provide the
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Employee with the benefits set forth in Section 6 if the Employee is terminated
by the Employer for any reason other than for cause, if such termination occurs
within one (1) year of the effective Change in Control date.
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5.3 Termination by Employee. Switchboard shall provide the Employee
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with the benefits set forth in Section 6 upon termination by the Employee of the
Employee's employment with Switchboard at any time during the term of this
Agreement if the Employee elects to resign within 90 days of either of the
following events:
(i) The Employee's job is relocated more than 35 miles from
Westboro, Massachusetts; or
(ii) The Employee's job title and/or overall targeted cash
compensation are materially reduced from levels in effect at the
commencement of the initial or any renewal term of this Agreement.
5.4 Notice of Termination. Any termination of the Employee's
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employment by Switchboard or by the Employee as referred to in this Section
shall be communicated by written notice of termination to the other party.
6. Termination Benefits. Subject to and in accordance with the
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provisions set forth in Section 5, and further subject to the execution of a
mutually agreeable release agreement, the following benefits (subject to any
applicable taxes required to be withheld) shall be paid to the Employee as
follows:
(a) Compensation. The Employee will be paid (i) his base salary;
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and (ii) a pro rated bonus based on assumed achievement of the requisite
criteria set forth in the 1999 Executive Incentive Plan for six months from the
effective date of his termination.
(b) Insurance Benefits, etc. The Employee's participation
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(including dependent coverage) in the life, health and dental insurance plans
(excluding further participation in the existing 401K Plan) of Switchboard in
effect immediately prior to the effective date of
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Employee's termination shall be continued, or equivalent benefits provided, by
Switchboard, at the Employee's then current contribution rate for such benefits
for a period of up to six months commencing on the effective date of Employee's
termination (the "Continuation Period") in the event that the Employee remains
unemployed during the Continuation Period. If Employee obtains other employment
during the Continuation Period, any continuing benefits will cease.
7. Continuing Obligations. In order to induce Switchboard to enter into
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this Agreement, the Employee hereby ratifies and confirms his Invention and Non-
Disclosure Agreement with Switchboard. Without limiting the generality of the
foregoing, the Employee agrees that all documents, records, techniques, business
secrets and other information which have come into his possession from time to
time during his employment hereunder shall be deemed to be confidential and
proprietary to Switchboard and he shall retain in confidence any confidential
information known to him concerning Switchboard and its parent and/or
subsidiaries and their respective businesses and such information shall not be
disclosed.
8. Other Agreements. Employee hereby represents that he is not bound by
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the terms of any agreement with any previous employer 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
competing, directly or indirectly, with the business of such previous employer
or any other party. 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.
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9. Notices. All notices required or permitted under this Agreement shall
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be in writing and shall be deemed effective upon personal delivery or upon
deposit in the United States Post Office, by registered or certified mail,
postage prepaid, addressed to the other party at the address shown above, or at
such other address or addresses as either party shall designate to the other in
accordance with this Section 8.
10. Pronouns. Whenever the context may require, any pronouns used in this
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Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular forms of nouns and pronouns shall include the plural, and vice
versa.
11. Entire Agreement. This Agreement constitutes the entire agreement
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between the parties and supersedes all prior agreements and understandings,
whether written or oral, relating to the subject matter of this Agreement,
including but not limited to the April 16, 1997 Offer Letter and the May 6, 1997
Senior Executive Termination Benefits Agreement, except as otherwise specified
in this Agreement. Employee's January 1, 1997 Invention and Non-Disclosure
Agreement; December 17, 1996 Incentive Stock Option Agreement; March 26, 1998
Incentive Stock Option Agreement; April 22, 1999 Incentive Stock Option
Agreement; and October 18, 1999 Stock Option Agreement will remain in full force
and effect, except that any provisions relating to adjustment of options upon a
change in control of the Company in the aforementioned stock option agreements
are hereby deleted and replaced by the language contained in Section 4 of this
Agreement. Employee's stock option agreements with Banyan Worldwide will remain
in full force and effect.
12. Arbitration. Any controversy or claim arising out of or relating to
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this Agreement or the breach thereof shall be settled by arbitration to be
conducted in Boston, Massachusetts, in
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accordance with the rules of the American Arbitration Association, and judgment
upon the award rendered by the arbitrators may be entered in any court having
jurisdiction thereof.
13. Amendment. This Agreement may be amended or modified only by a
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written instrument executed by both the Company and the Employee.
14. Governing Law. This Agreement shall be construed, interpreted and
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enforced in accordance with the laws of the Commonwealth of Massachusetts.
15. Successors and Assigns. This Agreement shall be binding upon and
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inure to the benefit of both parties and their respective successors and
assigns, including any corporation with which or into which the Company may be
merged or which may succeed to its assets or business, provided, however, that
the obligations of the Employee are personal and shall not be assigned by him.
16. Term. The initial term of this Agreement shall be for a period of
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twelve (12) months commencing on the effective date of this Agreement.
Thereafter, this Agreement shall be automatically renewed for successive twelve
(12) month periods unless either party indicates its intent not to renew by
giving at least sixty (60) days written notice prior to the expiration of the
then-current term.
17. Miscellaneous.
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17.1 No delay or omission by the Company in exercising any right under
this Agreement shall operate as a waiver of that or any other right. A waiver
or consent given by the Company on any one occasion shall be effective only in
that instance and shall not be construed as a bar or waiver of any right on any
other occasion.
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17.2 The captions of the sections of this Agreement are for
convenience of reference only and in no way define, limit or affect the scope or
substance of any section of this Agreement.
17.3 In case any provision of this Agreement shall be invalid, illegal
or otherwise unenforceable, the validity, legality and enforceability of the
remaining provisions shall in no way be affected or impaired thereby.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year set forth above.
SWITCHBOARD INCORPORATED
By: /s/ Xxxx X. Xxxxxx
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Title: Vice President and CFO
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XXXX XXXXXXXX
/s/ Xxxx Xxxxxxxx
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