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EXHIBIT 10.13
SYMPOSIUM CORPORATION
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made and entered into as
of November 2, 2000, by and between SYMPOSIUM CORPORATION, a Delaware
corporation (the "Company"), and XXXXXX XXXXXX ("Employee").
1. DEFINITIONS
"BOARD" shall mean the Board of Directors of the Company.
"COMPANY GROUP" shall mean the Company and each Person that the Company
directly or indirectly Controls or that Controls the Company.
"CONTROL" shall mean, with respect to any Person, (i) the beneficial
ownership of more than 50% of the outstanding voting securities of such Person
or (ii) the power, directly or indirectly, by proxy, voting trust or otherwise,
to elect a majority of the outstanding directors, trustees or other managing
persons of such Person.
"DATE OF TERMINATION" shall mean the effective date of the termination
of Employee's employment pursuant to Section 4 herein.
"DISABILITY" with respect to Employee, shall mean that, for physical or
mental reasons, Employee is unable to perform the essential functions of
Employee's duties under this Agreement for 90 days during any six month period.
Employee agrees to submit to a reasonable number of examinations by a medical
doctor reasonably acceptable to Employee advising the Company as to whether
Employee shall have suffered a disability and be unable to return to work for 90
days. Employee hereby authorizes the disclosure and release to the Company and
its agents and representatives medical records relating to the issue of
Employee's Disability. If Employer is not legally competent, Employee's legal
guardian or duly authorized attorney-in-fact will act in Employee's stead for
the purposes of submitting Employee to the examinations, and providing the
authorization of disclosure of Employee's ability or inability to return to
work.
"EMPLOYMENT DATE" shall mean October 2, 2000 or, if later, then the date
on which Employee commences employment with the Company.
"FOR CAUSE" shall mean, in the context of a basis for termination of
Employee's employment with the Company, that:
(a) Employee breaches any material obligation, duty or agreement under
this Agreement, which breach is not cured or corrected within 20 days of written
notice thereof from the Company (except for breaches of Sections 2.3, 7 or 8 of
this Agreement, which cannot be cured and for which the Company need not give
any opportunity to cure); or
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(b) Employee commits any act of fraud, embezzlement, breach of fiduciary
duty or trust against any member of the Company Group; or
(c) Employee is indicted for, convicted of, or pleads guilty or nolo
contendre with respect to, theft, fraud, a crime involving moral turpitude, or a
felony under federal or state law; or
(d) Employee commits any act of personal conduct that, in the reasonable
opinion of the Board, gives rise to any member of the Company Group of a
material risk of liability under federal or state law for discrimination or
sexual or other forms of harassment or other similar liabilities to employees;
or
(e) Employee commits continued and repeated substantive violations of
specific written directions of the Board, the Company's Chief Executive Officer
or any other superior officer of Employee's, which directions are consistent
with this Agreement.
"PERSON" shall mean an individual, partnership, corporation, trust,
estate, association, limited liability company, governmental authority or other
entity.
"SEVERANCE PERIOD" shall mean the period during which Employee is
receiving severance compensation under Section 5 herein.
2. ENGAGEMENT AND RESPONSIBILITIES
2.1 Upon the terms and subject to the conditions set forth in this
Agreement, the Company hereby employs Employee as its Vice President --
Marketing, and Employee accepts such employment. Employee shall report directly
to the Company's President or Chief Executive Officer, as determined by the
Company from time to time. Employee shall also serve from time to time as an
officer and employee of such subsidiaries or affiliates of the Company as the
Board, Chief Executive Officer or President of the Company may from time to time
request.
2.2 Employee agrees to devote all of Employee's business time, energy
and efforts to the business of the Company and will use Employee's best efforts
and abilities faithfully and diligently to promote the Company's business
interests. Employee's duties and responsibilities shall be as set forth on
Exhibit A attached hereto. In addition, Employee's duties shall include those
duties and services (consistent with the duties and responsibilities set forth
on Exhibit A) for the Company and its affiliates as the Board or the Company's
Chief Executive Officer or President shall from time to time reasonably direct;
provided, however, that, to the extent that such activities do not interfere
with the performance by Employee of his duties and responsibilities under this
Agreement, Employee may: (i) serve on the board of directors of a reasonable
number of other corporations, trade associations or charitable organizations;
(ii) engage in charitable activities or community affairs; or (iii) manage his
personal investments and affairs.
2.3 After Company gives Employee notice of termination under Section 4
herein and during any period Employee is receiving severance compensation under
Section 5 herein, Company may instruct Employee to stop performing services
hereunder or may require Employee to perform such administrative, training or
other functions as Company may reasonably regard as necessary or appropriate to
facilitate transition and minimize the adverse impact to Company Group.
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3. COMPENSATION AND BENEFITS
For so long as Employee shall be employed by the Company, Employee shall
receive the following compensation and benefits:
3.1 SALARY. The Company shall pay Employee a salary at an annual rate of
$200,000, increasing to $225,000 on January 1, 2001 and to $250,000 on January
1, 2002. Thereafter, the Board may, but shall not be obligated to, adjust
Employee's salary from time to time. The salary shall be payable in installments
in the same manner and at the same times the Company pays salaries to other
executive officers of the Company, but in no event less frequently than equal
monthly installments. The salary shall be pro-rated for any year in which
Employee has been employed hereunder for fewer than twelve months.
3.2 PERFORMANCE BONUS. For each calendar year during the Term of this
Agreement, commencing in calendar year 2001, Employee shall be entitled to an
annual performance bonus of not less than $100,000 (the "Minimum Performance
Bonus") and not more than 100% of Employee's base salary for such calendar year
(the "Performance Bonus") based upon Employee's performance during each year, as
measured by mutually established goals and criteria. The Minimum Performance
Bonus will be payable in equal quarterly installments on the fifteenth day of
the month next following the close of each fiscal quarter. The balance of the
Performance Bonus, if any, will be payable, depending upon the goals
established, either quarterly or, in any event, not later than January 31 of
each year (with respect to any unpaid balance of the Performance Bonus for the
preceding year), commencing January 31, 2002.
3.3 ADDITIONAL BONUS. In the event that the Company enters into an
agreement (the "Hot Socket Agreement") with Hot Socket or E-Revenue Partners
("Hot Socket"), the Company will enter into an additional bonus arrangement (the
"Additional Bonus") with Employee, based upon mutually established goals and
criteria, to enable Employee to participate in the success of the Company's
relationship with Hot Socket.
3.4 EXPENSE REIMBURSEMENT. Employee shall be entitled to reimbursement
from the Company for the reasonable out-of-pocket costs and expenses which
Employee incurs in connection with the performance of Employee's duties and
obligations under this Agreement in a manner consistent with the Company's
practices and policies therefor.
3.5 EMPLOYEE BENEFIT PLANS. Employee shall be entitled to participate in
any and all pension, profit-sharing, savings, and group life, disability,
medical, dental, and other insurance and group benefit plans that the Company
makes available to its executive officers generally; provided, however that the
Company shall have no obligation to establish, make available or maintain any
such plan. In addition, subject to satisfactory medical approval, the Company
agrees to, at its sole expense, pay all premiums with respect to a split dollar
life insurance policy in the amount of $1,000,000 in which the employee shall be
named the insured and the proceeds of which will be payable to a beneficiary
named by Employee. Upon termination of the Employee's employment, the Company
agrees to transfer to the Employee, at Employee's option, any then-existing life
insurance policies in which the Employee is the named insured for consideration
equal to the interpolated terminal reserve value of such policies. In the event
that the Employee does not exercise his right to purchase such insurance
policies, such insurance policies shall be cancelled by the Company.
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3.6 VACATION. Commencing with calendar year 2001, Employee shall be
entitled to paid vacation which accrues at a rate of three weeks per calendar
year. Vacation shall accrue in accordance with the Company's standard vacation
accrual policy.
3.7 AUTOMOBILE ALLOWANCE. The Company shall reimburse Employee for his
monthly automobile lease or purchase payments and other expenses incidental to
the operation, insurance, maintenance and parking of such automobile, subject to
a maximum reimbursement of $1,000 per month and to his presentation of
appropriate vouchers and documentation in accordance with the Company's normal
policies for expense and business use verification.
3.8 DISABILITY. In the event of any Disability, Employee's salary and
benefits shall continue until termination of his employment, provided that if
Employee shall receive payments as a result of such Disability under any
disability plan maintained by the Company or from any government agency, the
Company shall be entitled to deduct the amount of such payments received from
base salary paid or payable to Employee during the period of such Disability.
3.9 WITHHOLDING. The Company may deduct from any compensation payable to
Employee (including payments made pursuant to Section 5 of this Agreement in
connection with or following termination of employment) amounts it believes are
required to be withheld under federal and state law, including applicable
federal, state and/or local income tax withholding, old-age and survivors' and
other social security payments, state disability and other insurance premiums
and payments.
3.10 SIGNING BONUS. At such time following the Employment Date as
Employee shall designate, Company will pay Employee a $50,000 signing bonus.
Such bonus shall be deemed to be fully earned as of the Employment Date.
Employee will relocate his residence to New York, New York or its immediate
vicinity in connection with his acceptance of employment by the Company.
3.11 RELOCATION EXPENSES. The Company shall pay, or reimburse Employee
for, expenses reasonably incurred by Employee in connection with such relocation
upon submission of documentation in a form reasonably acceptable to the Company
up to a maximum of $25,000 and will pay, or reimburse Employee for, commutation
and living expenses (other than non-business related meals) incurred by
Employee, in each case for a period not to exceed eight months from and after
the Employment Date and preceding the date of such relocation.
3.12 LIABILITY AS EMPLOYEE OR OFFICER. Employee shall be named in any
directors and officers liability insurance policy that the Company may maintain
from time to time; provided, however that the Company shall have no obligation
to establish, make available or maintain any such policy. The Company shall
indemnify Employee for any and all claims, liabilities, or expenses arising in
connection with his performance of his duties as an employee or officer of the
Company under this Agreement to the fullest extent allowable under the By-Laws
of the Company and applicable state or federal law, except to the extent such
claims, liabilities or expenses result from the bad faith or intentional
misconduct of Employee.
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4. TERM OF EMPLOYMENT
Employee's term of employment pursuant to this Agreement shall commence
as of the date hereof and shall terminate upon the earliest to occur of the
following (the "DATE OF TERMINATION"):
4.1 the second anniversary of the Employment Date (the "Second
Anniversary Date");
4.2 the death of Employee (effective on the date of death);
4.3 Company's delivery to Employee of written notice of termination by
the Company if Employee shall suffer a Disability (effective on the ninetieth
(90th) day of Disability);
4.4 Company's delivery to Employee of written notice of termination by
the Company For Cause (effective on delivery of such notice);
4.5 Company's delivery to Employee of at least thirty (30) days prior
written notice of termination by the Company not For Cause (effective on the
thirtieth (30th) day after such notice is given); or
4.6 At the option of Employee, the filing by the Company of any
proceeding seeking to adjudicate the Company as bankrupt or insolvent.
5. SEVERANCE COMPENSATION
5.1 If Employee's employment is terminated by the Company pursuant to
Section 4.5 prior to the Second Anniversary Date, the Company shall: (a) until
the earlier to occur of the Second Anniversary Date or six months from the Date
of Termination (such earlier date, the "Severance Termination Date"), continue
to (i) pay to Employee salary at the rate in effect on the Date of Termination;
and (ii) pay for Employee's (and his immediate family's) participation in all
the Company's medical, life, dental, disability and similar plans in which he
was participating to the extent permitted by such plan; and (b) pay to Employee
a pro-rated share (through the Severance Termination Date) of any Minimum
Performance Bonus and, if applicable, Additional Bonus which would have been
earned by Employee pursuant to Section 3.2 or 3.3, respectively, of this
Agreement had Employee been employed the entire year in which the Date of
Termination occurs. Notwithstanding the foregoing, the Company may terminate any
payments pursuant to this Section 5.1 upon any breach by Employee of any
provision of Section 7 of this Agreement.
5.2 If Employee's employment is terminated for any reason other than by
the Company not For Cause prior to the Second Anniversary Date, the Company
shall pay to Employee (or Employee's estate or beneficiary, as the case may be),
any unpaid salary through the Date of Termination and, if termination was
pursuant to Sections 4.2 or 4.3, the Company shall pay to Employee a pro-rated
share (through the date of termination) of any Minimum Performance Bonus and, if
applicable, Additional Bonus which would have been earned by Employee pursuant
to Section 3.2 or 3.3, respectively, of this Agreement had Employee been
employed the entire year in which the Date of Termination occurs. Employee shall
not be entitled to any Bonus (other than as set forth in the preceding sentence)
for the year in which the Date of Termination occurs. All rights and benefits
which Employee or his estate may have under employee benefit plans in which
Employee shall be participating at the Date of Termination shall be determined
in accordance with such plans.
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5.3 Employee acknowledges that the Company has the right to terminate
Employee's employment at any time and that such termination shall not be a
breach of this Agreement or any other express or implied agreement between the
Company and Employee. Accordingly, in the event of such termination, Employee
shall be entitled only to those benefits specifically provided in this Section
5, and shall not have any other rights to any compensation or damages from the
Company for breach of contract.
5.4 Employee acknowledges that in the event of termination of Employee's
employment for any reason, Employee (nor Employee's estate, heirs, beneficiaries
or others claiming through Employee) shall not be entitled to any severance or
other compensation from the Company except as specifically provided in this
Section 5. Without limiting on the generality of the foregoing, this Section
supersedes any plan or policy of the Company which provides for severance to its
officers or employees, and Employee shall not be entitled to any benefits under
any such plan or policy.
6. OPTIONS
6.1 Employee will be granted options (the "Options") to purchase 125,000
shares of Company's Common Stock under Company's 1998 Stock Option Plan, as
amended (the "Plan"). The Options will vest quarterly over a three year period
(8.33% per quarter) beginning three months after the date hereof and the
exercise price under the Options will be the closing price of the Company's
Common Stock on the American Stock Exchange ("AMEX") on the date hereof.
6.2 In addition, in the event that the Company enters into a Hot Socket
Agreement, Employee will be granted options to purchase an additional 75,000
shares under the Plan (the "Additional Options"). The Additional Options will
vest quarterly over a three year period (8.33% per quarter) beginning three
months after the date on which a Hot Socket Agreement is executed and the
exercise price of the Additional Options will be the closing price of the
Company's Common Stock on the AMEX on such date.
6.3 A Summary of the Plan is attached as Exhibit B hereto.
7. RESTRICTIVE COVENANTS.
7.1 CERTAIN DEFINITIONS. In addition to the other definitions set forth
in this Agreement, for purposes of this Section 7, the following terms shall
have the following meanings:
"COMPETITIVE ACTIVITY" means any activity which competes with any
substantial aspect or part of the business of any member of the Company Group in
the Restricted Area, whether as a proprietor, partner, shareholder, owner,
member, employer, employee, independent contractor, venturer or otherwise.
"COMPETITOR" means any Person, other than a member of the Company
Group, which at any time during the Restriction Period engages in any
Competitive Activity.
"CONFIDENTIAL INFORMATION" means all information of or relating
to the Company Group, its business or practice, which is not generally known or
available to the public (whether or not in written or tangible form) including,
without limitation, customer lists, supplier lists, processes, know-how, trade
secrets, pricing policies and other confidential business information.
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"CONFIDENTIAL MATERIALS" means any and all documents, records,
reports, lists, notes, plans, materials, programs, software, disks, diskettes,
recordings, manuals, correspondence, memoranda, magnetic media or any other
tangible media (including, without limitation, copies or reproductions of any of
the foregoing) in which any Confidential Information may be contained.
"EMPLOYER" means the Company and each other member of the Company
Group to which Employee provides services.
"PERSONNEL" means any and all employees, contractors, agents,
consultants or other Persons rendering services to a member of the Company
Group, for compensation in any form.
"RESTRICTED AREA" means the United States, Canada, and their
respective territories and possessions, except that the Restricted Area shall be
worldwide with respect to any Competitive Activity involving the Internet, the
World Wide Web, telemarketing, telephony or other electronic or similar media.
"RESTRICTION PERIOD" means the period of time (subject to
extension pursuant to Section 7.6 below), commencing on the Employment Date and
expiring at the end of the Severance Period, except that if Employee's
employment is terminated For Cause or voluntarily by Employee, the period of
time (subject to extension pursuant to Section 7.6 below) shall expire at the
end of the number of days which is the same as the number of days between the
Employment Date and such termination up to a maximum of two (2) years after such
termination.
7.2 CONFIDENTIALITY.
(a) Confidential Information. Subject to Section 7.2(c):
(1) Duty to Maintain Confidentiality. Employee shall
maintain in strict confidence and duly safeguard to the best of his ability any
and all Confidential Information.
(2) Covenant Not to Disclose, Use or Exploit. Employee
shall not, directly or indirectly, disclose, divulge or otherwise communicate to
anyone or use or otherwise exploit for the benefit of anyone, other than
Employer, any Confidential Information.
(3) Confidential Materials. All Confidential Information
and Confidential Materials are and shall remain the exclusive property of the
Company Group and no Confidential Materials may be copied or otherwise
reproduced, removed from the premises of Employer or entrusted to any Person
(other than Employer or the Personnel entitled to such materials) without prior
written permission from Employer.
(b) Survival of Covenants. Notwithstanding anything herein to the
contrary, the covenants set forth in this Section 7.2 shall survive the
termination of this Agreement and any other agreement among any or all of the
parties hereto (regardless of the reason for such termination), unless
terminated by a written instrument that expressly terminates by specific
reference the covenants set forth in this Section 7.2.
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(c) Permitted Activities. If Employee receives a request or
demand for Confidential Information (whether pursuant to a discovery request,
subpoena or otherwise), Employee shall immediately give Employer written notice
thereof and shall exert his best efforts to resist disclosure, including,
without limitation, by fully cooperating and assisting Employer in whatever
efforts it may make to resist or limit disclosure or to obtain a protective
order or other appropriate remedy to limit or prohibit further disclosure or use
of such Confidential Information. If Employee complies with the preceding
sentence but nonetheless becomes legally compelled to disclose Confidential
Information, Employee shall disclose only that portion of the Confidential
Information that he is legally compelled to disclose.
7.3 COVENANT NOT TO COMPETE. During the Restriction Period, Employee
shall not, directly or indirectly, whether as a sole practitioner, owner,
partner, shareholder, investor, employee, employer, venturer, independent
contractor, consultant or other participant, (i) own, manage, invest in or
acquire any economic stake or interest in any Person involved in a Competitive
Activity, (ii) derive economic benefit from or with respect to any Competitive
Activity or (iii) otherwise engage or participate in any manner whatsoever in
any Competitive Activity; provided, however, this Section 7.3 shall not restrict
Employee from owning less than 2% of the debt or equity securities issued by a
corporation or other entity or from having any other passive investment that
creates no conflict of loyalty or interest with any duty owed to Employer.
Employee shall be deemed to have derived economic benefit in violation of this
Section 7.3 if, among other things, any of his compensation or income is in any
way related to any Competitive Activity conducted by any Person. Further, during
the Restriction Period Employee shall not directly or indirectly advance,
cooperate in or help or aid any Competitor in the conduct of any Competitive
Activity.
7.4 COVENANT NOT TO INTERFERE. During the Restriction Period, Employee
shall not, directly or indirectly, recruit, solicit or otherwise induce or
influence any Personnel of Employer to discontinue, reduce the extent of,
discourage the development of or otherwise harm such Personnel's relationship or
commitment to Employer. Conduct prohibited under this Section 7.4 shall include,
without limitation, employing, seeking to employ or causing, aiding, inducing or
influencing a Competitor to employ or seek to employ any Personnel of Employer.
7.5 EQUITABLE RELIEF. Each of the parties acknowledges that the
provisions and restrictions of this Section 7 are reasonable and necessary for
the protection of the legitimate interests of the Company Group. Each of the
parties further acknowledges that the provisions and restrictions of this
Section 7 are unique and that any breach or threatened breach of any of such
provisions or restrictions will provide the Company Group with no adequate
remedy at law, and the result will be irreparable harm to the Company Group.
Therefore, the parties hereto agree that upon a breach or threatened breach of
the provisions or restrictions of this Section 7, the Company Group shall be
entitled, in addition to any other rights and remedies which may be available to
it, to institute and maintain proceedings at law or in equity, to recover
damages, to obtain an equitable accounting of all earnings, profits or other
benefits resulting from such breach or threatened breach and to obtain specific
performance or a temporary and permanent injunction.
7.6 FULL RESTRICTION PERIOD. If Employee violates any restrictive
covenant contained herein and a member of the Company Group institutes action
for equitable relief, such member, as a result of the time involved in obtaining
such relief, shall not be deprived of the benefit of the full Restriction
Period. Accordingly, the Restriction Period shall be deemed to have the duration
specified in Section 7.1, computed from and commencing on the date on which
relief is granted by a final order from which there is no appeal, but reduced,
if applicable, by the length of time between
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the date the Restriction Period commenced and the date of the first violation of
any restrictive covenant by Employee. Prior to obtaining any injunctive relief
hereunder, the parties agree that the non-breaching party shall be required to
post an injunction surety bond with the court in an amount to be determined by
such court to be reasonable.
7.7 EQUITABLE ACCOUNTING. Each member of the Company Group shall have
the right to demand and receive equitable accounting with respect to any
consideration received by Employee in connection with activities in breach of
the restrictive covenants herein, and shall be entitled to payment from Employee
of such consideration on demand.
7.8 PRIOR BREACHES. Neither the expiration of the Restriction Period nor
the termination of the status of any Customer or Personnel as such (whether or
not due to a breach hereof by Employee) shall preclude, limit or otherwise
affect the rights and remedies of a member of the Company Group against Employee
based upon any breach hereof during the Restriction Period or before such status
of Customer or Personnel terminated.
7.9 NONCIRCUMVENTION OF COVENANTS. Employee acknowledges and agrees
that, for purposes of this Agreement, an action shall be considered to have been
taken by Employee "indirectly" if taken by or through (a) any member of his
family (whether a close or distant relation by blood, marriage or adoption), (b)
any Person owned or controlled, solely or with others, directly or "indirectly"
by Employee or a member of his family, (c) any Person of which he is an owner,
partner, employer, employee, trustee, independent contractor or agent, (d) any
employees, partners, owners or independent contractors of any such Person or (e)
any other one or more representatives or intermediaries, it being the intention
of the parties that Employee shall not directly or indirectly circumvent any
restrictive covenant contained herein or the intent thereof.
7.10 NOTICE OF RESTRICTIONS. During the Restriction Period, Employee
shall notify each prospective employer, partner or co-venturer of the
restrictions contained in this Agreement. Employer is hereby authorized to
contact any of such Persons for the purpose of providing notice of such
restrictions.
7.11 REDUCTION OF RESTRICTIONS BY COURT ACTION. Each of the provisions
hereof including, without limitation, the periods of time, geographic areas and
types and scopes of duties of, and restrictions on the activities of, the
parties hereto specified herein are and are intended to be divisible, and if any
portion thereof (including any sentence, clause or word) shall be held contrary
to law or invalid or unenforceable in any respect in any jurisdiction, or as to
one or more periods of time, areas or business activities or any part thereof,
the remaining provisions shall not be affected but shall remain in full force
and effect, and any such invalid or unenforceable provision shall be deemed,
without further action on the part of any party hereto or other Person, modified
and amended to the minimum extent necessary to render the same valid and
enforceable in such jurisdiction.
7.12 FAIRNESS OF RESTRICTIONS. Employee acknowledges and agrees that (a)
compliance with the restrictive covenants set forth herein would not prevent him
from earning a living that involves his training and skills without relocating,
but only from engaging in unfair competition with, misappropriating a corporate
opportunity of, or otherwise unfairly harming the Company Group and (b) the
restrictive covenants set forth herein are intended to provide a minimum level
of protection necessary to protect the legitimate interests of the Company
Group. In addition, the parties acknowledge that nothing herein is intended to
or shall, limit, replace or otherwise affect any other
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rights or remedies at law or in equity for protection against unfair competition
with, misappropriation of corporate opportunities of, disclosure of confidential
and proprietary information of, or defamation of the Company Group, or for
protection of any other rights or interest of the Company Group.
7.13 SURRENDER OF RECORDS AND PROPERTY. Upon termination of his
employment with Company, Executive shall promptly deliver to Company all
records, manuals, books, blank forms, documents, letters, memoranda, notes,
notebooks, reports, data, tables, calculations and copies thereof, which are the
property of Company or which relate in any way to the business, products,
practices or techniques of Company, and all other property, trade secrets and
confidential information of Company, including, without limitation, all
documents which in whole or in part contain any trade secrets or confidential
information of Company, which in any of these cases are in his possession or
under his control.
8. ASSIGNMENT.
Except as expressly provided below, this Agreement shall not be
assignable, in whole or in part, by either party without the prior written
consent of the other party. Company may, without the prior written consent of
Employee, assign its rights and obligations under this Agreement to (i) any
member of the Company Group or (ii) any other Person with or into which Company
may merge or consolidate, or to which Company may sell or transfer all or
substantially all of its assets, provided, however, that such assignment may be
made without Employee's prior written consent only if (a) such assignment has a
valid business purpose and is not for the purpose of avoiding Company's
obligations hereunder or Employee's realization of the benefits of this
Agreement and (b) the assignee expressly assumes in writing all obligations and
liabilities hereunder. This Agreement shall be binding upon and inure to the
benefit of Company and its respective successors and permitted assigns. This
Agreement and all rights of Employee hereunder shall inure to the benefit of and
be enforceable by his heirs, personal or legal representatives and
beneficiaries.
9. EMPLOYMENT FOLLOWING SECOND ANNIVERSARY DATE.
If Employee's employment continues following the Second Anniversary
Date: (a) such employment shall be "at will," and may be terminated either by
the Employee upon 30 days written notice to the Company or by the Company at any
time; and (b) except as otherwise provided in writing, all of the provisions of
this Agreement shall be applicable to such continued employment, except (i)
Employee's compensation shall consist only of salary at the rate in effect at
Second Anniversary Date, (ii) Employee shall not be entitled to any bonus
compensation except for the Performance Bonus and, if applicable, the Additional
Bonus; and (ii) the provisions of Section 4 shall be superseded to the extent
discussed in this Section 9.
10. MISCELLANEOUS
10.1 NOTICES. All notices, requests, demands and other communications
(collectively, "NOTICES") given pursuant to this Agreement shall be in writing,
and shall be delivered by personal service, courier, facsimile transmission or
by United State first class, registered or certified mail, addressed to the
following addresses:
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If to the Company, to:
Symposium Corporation
000 Xxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Attn: President
If to Employee, to:
Employee's address as set forth
on the books and records of the Company
Any Notice, other than a Notice sent by registered or certified mail, shall be
effective when received; a Notice sent by registered or certified mail, postage
prepaid return receipt requested, shall be effective on the earlier of when
received or the third day following receipt requested, shall be effective on the
earlier of when received or the third day following deposit in the United States
mails. Any party may from time to time change its address for further Notices
hereunder by giving notice to the other party in the manner prescribed in this
Section.
10.2 ENTIRE AGREEMENT. This Agreement contains the sole and entire
agreement and understanding of the parties with respect to the entire subject
matter of this Agreement, and any and all prior discussions, negotiations,
commitments and understandings, whether oral or otherwise, related to the
subject matter of this Agreement are hereby merged herein. The express terms
hereof shall control and supersede any course of conduct and/or custom or usage
of the profession inconsistent with any of the terms hereof. Neither this
Agreement nor any provision herein may be, amended, waived or modified orally,
but only by an agreement in writing signed by the party against whom enforcement
of any amendment, waiver or modification is sought. Neither a beneficiary nor
potential beneficiary of Employee nor any other person or entity with an
expectation of value hereunder shall have any rights under this Agreement
(except as specifically provided in Sections 3.5 and 5.1 hereof), and this
Agreement or any provision herein may be waived, modified, amended, extended or
discharged without the knowledge or consent of any other person or entity. No
representations, oral or otherwise, express or implied, other than those
contained in this Agreement have been relied upon by any party to this
Agreement.
10.3 SEVERABILITY. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason, in
whole or in part, the remaining provisions of this Agreement shall be unaffected
thereby and shall remain in full force and effect to the fullest extent
permitted by law.
10.4 GOVERNING LAW; VENUE. This Agreement has been made and entered into
in the State of New York and shall be considered in accordance with the laws of
the State of New York without regard to principles of conflict of laws. The
parties irrevocably consent to the jurisdiction of the New York state or federal
courts located in New York, New York in any action or proceeding pursuant hereto
and agree to service of process in accordance with Section 10.1 herein.
10.5 CAPTIONS. The various captions of this Agreement are for reference
only and shall not be considered or referred to in resolving questions of
interpretation of this Agreement.
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10.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
10.7 ATTORNEYS' FEES. If any action or proceeding is brought to enforce
or interpret any provision of this Agreement, the prevailing party shall be
entitled to recover as an element of its costs, and not its damages, its
reasonable attorneys' fees, costs and expenses. The prevailing party is the
party who is entitled to recover its costs in the action or proceeding. A party
not entitle to recover its costs may not recover attorneys' fees. No sum for
attorneys' fees shall be counted in calculating the amount of a judgment for
purposes of determining whether a party is entitled to recover its costs or
attorneys' fees.
10.8 REPRESENTATIONS AND WARRANTIES OF EMPLOYEE. Employee represents and
warrants to Company that, as of the date hereof and throughout the term of this
Agreement Employee is not and will not in any way whatsoever be contractually
restricted or prohibited from entering into this Agreement and performing the
services and obligations required herein and Employee's execution of this
Agreement and his performance of the services and obligations required herein do
not and will not constitute a default or an event that, with or without notice
or lapse of time or both, would be a default, breach or violation of any
agreement, contract, instrument or arrangement to which he is a party or by
which he is bound.
10.9 NO WAIVER. No term or condition of this Agreement shall be deemed
to have been waived, nor shall there be any estoppel to enforce any provisions
of this Agreement, except by a statement in writing signed by the party against
whom enforcement of the waiver or estoppel is sought. Any written waiver shall
not be deemed a continuing waiver unless specifically stated, shall operate only
as to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future or as to any act other than that
specifically waived.
10.10 NUMBER OF DAYS. In computing the number of days for purposes
hereof, all days shall be counted, including Saturdays, Sundays and holidays
(unless only business days are specified); provided, however, that if the final
day of any time period falls on a Saturday, Sunday or holiday, then the final
day shall be deemed to be the following day which is not a Saturday, Sunday or
holiday.
10.11 BINDING EFFECT. This Agreement and all terms hereof shall be
binding upon and inure to the benefit of the parties hereto and their respective
heirs, successors, personal and estate representatives, administrators and, to
the extent permitted hereby, assigns. The parties recognize that this Agreement
is a personal service contract, and, therefore, Employee may not assign any of
her rights or obligations hereunder.
10.12 CUMULATIVE RIGHTS AND REMEDIES. All of the rights and remedies of
Company are separate and cumulative and in addition to, not exclusive or in lieu
of, any other rights and remedies available at law, in equity, under any other
agreement between or among any or all of the parties hereto or otherwise
(including, without limitation, corporate opportunities doctrine and other laws
and principles for protection against defamation, unfair competition,
interference with contractual or business relationships and for protection of
confidential and proprietary information). Any and all rights and remedies of
Company may be exercised one or more times, and no such exercise shall be deemed
to be a waiver, exhaustion or relinquishment of the same or any other rights or
remedies.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
SYMPOSIUM CORPORATION
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
/s/ Xxxxxx Xxxxxx
------------------------------------
XXXXXX XXXXXX
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EXHIBIT A
(1) Coordination of MOS, NSI and Symposium marketing activities.
(2) Management of relationships with Hot Socket or E-Revenue Partners to
create magazine and club revenues through joint marketing activities.
(3) Development, coordination and monitoring corporate marketing strategy
including the preparation of projections, marketing plans and
timetables.
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EXHIBIT B
SYMPOSIUM EMPLOYEE STOCK OPTION PLAN
ELIGIBILITY
Any person who is a director, officer, employee or consultant of the
Company, or any of its subsidiaries (a "Participant"), is eligible to be
considered for the grant of awards under the Option Plan.
CONSIDERATION
The Common Stock underlying an award may be issued for any lawful
consideration as determined by the Administrator, including, without limitation,
a cash payment, services rendered, or the cancellation of indebtedness. An award
may provide for a purchase price of the Common Stock at a value less than the
fair market value of the Common Stock on the date of grant. In addition, an
award may permit the recipient to pay the purchase price of the Common Stock or
to pay such recipient's tax withholding obligation with respect to such
issuance, in whole or in part, by delivering previously owned shares of capital
stock of the Company or other property, or by reducing the number of shares of
Common Stock otherwise issuable pursuant to such award.
TERMINATION OF AWARDS
All options granted under the Option Plan expire ten years from the date
of grant, or such shorter period as is determined by the Administrator. No
option is exercisable by any person after such expiration. If an option expires,
terminates or is canceled, the shares of Common Stock not purchased thereunder
shall again be available for issuance under the Option Plan.
AMENDMENT AND TERMINATION OF THE OPTION PLAN
The Administrator may amend the Option Plan at any time, may suspend it
from time to time or may terminate it without approval of the shareholders;
provided, however, that shareholder approval is required for any amendment which
materially increases the number of shares for which awards may be granted,
materially modifies the requirements of eligibility, or materially increases the
benefits which may accrue to recipients of awards under the Option Plan.
However, no such action by the Board of Directors or shareholders may
unilaterally alter or impair any award previously granted under the Option Plan
without the consent of the recipient of the award. In any event, the Option Plan
shall terminate on December 31, 2007 unless sooner terminated by action of the
Board of Directors.
FEDERAL INCOME TAX CONSEQUENCES FOR STOCK OPTIONS
The following is a general discussion of the principal tax
considerations for both "incentive stock options" within the meaning of Section
422 of the Code ("Incentive Stock Options") and non-statutory stock options
("Non-statutory Stock Options"), and is based upon the tax laws and regulations
of the United States existing as of the date hereof, all of which are subject to
modification at any time. The Option Plan does not constitute a qualified
retirement plan under Section 401(a) of the Code (which generally covers trusts
forming part of a stock bonus, pension or profit-sharing plan
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funded by the employer and/or employee contributions which are designed to
provide retirement benefits to participants under certain circumstances) and is
not subject to the Employee Retirement Income Security Act of 1974 (the pension
reform law which regulates most types of privately funded pension, profit
sharing and other employee benefit plans).
CONSEQUENCES TO EMPLOYEES: INCENTIVE STOCK OPTIONS
No income is recognized for federal income tax purposes by an optionee
at the time an Incentive Stock Option is granted, and, except as discussed
below, no income is recognized by an optionee upon his or her exercise of an
Incentive Stock Option.
If the optionee makes no disposition of the Common Stock received upon
exercise within two years from the date such option was granted or one year from
the date such option is exercised, the optionee will recognize mid-term or
long-term capital gain or loss when he or she disposes of his or her Common
Stock depending on the length of the holding period. Such gain or loss generally
will be measured by the difference between the exercise price of the option and
the amount received for the Common Stock at the time of disposition.
If the optionee disposes of the Common Stock acquired upon exercise of
an Incentive Stock Option within two years after being granted the option or
within one year after acquiring the Common Stock, any amount realized from such
disqualifying disposition will be taxable as ordinary income in the year of
disposition to the extent that (i) the lesser of (a) the fair market value of
the shares on the date the Incentive Stock Option was exercised or (b) the fair
market value at the time of such disposition exceeds (ii) the Incentive Stock
Option exercise price. Any amount realized upon disposition in excess of the
fair market value of the shares on the date of exercise will be treated as
long-term, mid-term or short-term capital gain, depending upon the length of
time the shares have been held.
The use of stock acquired through exercise of an Incentive Stock Option
to exercise an Incentive Stock Option will constitute a disqualifying
disposition if the applicable holding period requirement has not been satisfied.
For alternative minimum tax purposes, the excess of the fair market
value of the stock as of the date of exercise over the exercise price of the
Incentive Stock Option is included in computing that year's alternative minimum
taxable income. However, if the shares are disposed of in the same year, the
maximum alternative minimum taxable income with respect to those shares is the
gain on disposition. There is no alternative minimum taxable income from a
disqualifying disposition in subsequent years.
CONSEQUENCES TO EMPLOYEES: NON-STATUTORY STOCK OPTIONS
No income is recognized by a holder of Non-statutory Stock Options at
the time Non-statutory Stock Options are granted under the Option Plan. In
general, at the time shares of Common Stock are issued to a holder pursuant to
exercise of Non-statutory Stock Options, the holder will recognize ordinary
income equal to the excess of the fair market value of the shares on the date of
exercise over the exercise price.
A holder will recognize gain or loss on the subsequent sale of Common
Stock acquired upon exercise of Non-statutory Stock Options in an amount equal
to the difference between the selling
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price and the tax basis of the Common Stock, which will include the price paid
plus the amount included in the holder's income by reason of the exercise of the
Non-statutory Stock Options. Provided the shares of Common Stock are held as a
capital asset, any gain or loss resulting from a subsequent sale will be
short-term, mid-term or long-term capital gain or loss depending upon the length
of time the shares have been held.
CONSEQUENCES TO THE COMPANY: INCENTIVE STOCK OPTIONS
The Company will not be allowed a deduction for federal income tax
purposes at the time of the grant or exercise of an Incentive Stock Option.
There are also no federal income tax consequences to the Company as a result of
the disposition of Common Stock acquired upon exercise of an Incentive Stock
Option if the disposition is not a disqualifying disposition. At the time of a
disqualifying disposition by an optionee, the Company will be entitled to a
deduction for the amount received by the optionee to the extent that such amount
is taxable to the optionee as ordinary income.
CONSEQUENCES TO THE COMPANY: NON-STATUTORY STOCK OPTIONS
Generally, the Company will be entitled to a deduction for federal
income tax purposes in the year and in the same amount as the optionee is
considered to have realized ordinary income in connection with the exercise of
Non-statutory Stock Options.
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