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EXHIBIT 10.15
EMPLOYMENT AGREEMENT, dated as of
May 8, 2000, by and between
INTERACTIVE CHANNEL, INC., a
Delaware corporation (the "Company"),
AND XXXXXXXX XXXXXXXX (the "Employee").
The Company desires to engage Employee to perform services for the
Company, and Employee desires to perform such services, on the terms and
conditions set forth below:
NOW, THEREFORE, the parties agree as follows:
1. EMPLOYMENT. The Company hereby employs Employee as its Senior Vice
President of Programming, and Employee hereby accepts such employment, upon the
terms and conditions hereinafter set forth.
2. TERM. The term (the "Term") of employment of Employee pursuant to
this Agreement shall commence on the date hereof and shall terminate on the
second anniversary of the date hereof. The Term shall automatically be renewed
for successive one-year periods unless either party gives the other written
notice to the contrary at least 90 days prior to the end of the Term or any such
renewal thereof.
3. DUTIES AND SERVICES. Employee shall devote his full time and best
efforts to the business and affairs of the Company, and perform, in a competent
manner, such executive and managerial functions and duties commensurate with his
position as Senior Vice President of Programming of the Company, as the
President of the Company may reasonably prescribe from time to time. The
Employee shall report directly to the President of the Company. The parties
acknowledge that the Employee will spend such time at the Company's offices in
Dallas, Texas as is reasonably required to perform his functions and duties. The
Company will not require Employee to relocate his home from Brooklyn, New York.
4. COMPENSATION.
A. SALARY. For all services to be rendered by Employee
hereunder, the Company shall pay Employee an annual base salary of $200,000. The
Company shall pay Employee's salary in accordance with the Company's standard
payroll practices as in effect from time to time, with appropriate deductions
required by applicable laws, rules and regulations.
B. DISCRETIONARY BONUS. On an annual basis, the Board of
Directors of the Company shall consider a bonus payment to Employee based on his
performance, and the Company's results of operations. The timing and amount of
any such bonus payment shall be in the sole and absolute discretion of the Board
of Directors.
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C. STOCK OPTION PARTICIPATION. Employee shall receive a
ten-year option to purchase 125,000 shares of the common stock, par value $.001
per share, of Source Media, Inc. ("Source Media"), pursuant to the Stock Option
Agreement in the form attached hereto as Exhibit A.
5. EXPENSES. The Company shall reimburse Employee for all reasonable,
ordinary and necessary expenses incurred on behalf of the Company by Employee.
Employee shall submit to the Company an expense report and receipts or other
verification of expenses to be reimbursed in accordance with the Company's
standard policies.
6. BENEFITS. Employee shall be entitled to such insurance and
retirement plan benefits as are generally available to other senior management
employees of the Company, pursuant to Company policy in effect from time to
time, such as health insurance, disability and life insurance, and the right to
participate in any retirement plans maintained by the Company.
7. VACATION AND SICK DAYS. Employee shall be entitled to twenty (20)
business days of paid vacation during each calendar year (pro-rated for periods
shorter than a calendar year). Vacation and sick days shall be taken in
accordance with the Company's published guidelines.
8. TERMINATION PROVISIONS.
A. TERMINATION FOR CAUSE. Notwithstanding the provisions of
Section 2 above, the Company, on two days' prior written notice, may terminate
the employment of Employee for any of the following reasons (for "cause"),
without the payment of any compensation to Employee, except accrued salary and
vacation pay due for the period prior to the date of termination of employment.
(i) Employee shall be convicted of a felony;
(ii) Commission of theft from or fraud against the
Company or any willful misconduct by the Employee that is materially injurious
to the financial condition or business reputation of the Company, including by
reason of material breach by the Employee of the provisions of this Agreement.
B. TERMINATION BY THE COMPANY OTHER THAN FOR CAUSE, DEATH OR
DISABILITY.
(i) If the employment of Employee is terminated by
the Company other than for cause, death or disability, the Company shall pay to
Employee as severance, in equal monthly installments, the remaining base salary
payments that Employee would have earned if he had continued his employment
throughout the Term, and an amount equal to any accrued vacation pay on the date
of termination of employment. Such payments shall cease in the event Employee
obtains other employment following termination of employment by the
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Company; provided, however, that in the event the base salary payable to
Employee by the Company on the date of termination exceeds the base salary
payable to Employee by the new employer, the Company shall pay such excess to
Employee, in equal monthly installments, through the expiration of the Term.
(ii) The Company will continue life, medical, dental
and disability coverage substantially identical to the coverage maintained by
the Company for Employee and his dependents prior to termination of his
employment, except to the extent such coverage may be changed in its application
to all Company employees on a nondiscriminatory basis. Such coverage shall cease
when Employee obtains other employment.
C. TERMINATION ON ACCOUNT OF DISABILITY OR DEATH.
(i) In the event Employee shall, during the term of
this Agreement, become physically or mentally disabled so that he is unable, or
can reasonably be expected to be unable, to perform his duties hereunder for a
period of seventy five (75) consecutive days, or ninety (90) non-consecutive
days within any twelve (12) month period, the Company shall have the right to
terminate Employee's employment, provided that (a) the Company provides the
Employee with not less than five (5) days prior written notice of the
termination of his employment and (b) the Company makes the payments to Employee
referred to in clause (ii) below. Any determination of disability shall be made
by a physician selected by the Company and reasonably acceptable to the
Employee.
(ii) In the event the Company terminates the
Employee's employment for disability as set forth in clause (i) above
("Disability Termination"), Employee shall be entitled to receive, in monthly
installments, the base salary Employee would have received in the following
three months.. All payments made pursuant to this paragraph shall be made in
accordance with the Company's standard payroll practices as in effect from time
to time, with appropriate deductions required by applicable laws, rules and
regulations. In addition, the Company, at its expense, for a period of three
months following the date of Disability Termination, will continue medical and
dental insurance coverage substantially identical to the coverage maintained by
the Company for Employee and his dependents prior to termination of employment,
except to the extent such coverage may be changed in its application to all
Company employees on a non-discriminatory basis.
(iii) In the event of the death of Employee, the
Company shall pay the estate of the Employee or his legal representative the
accrued salary and vacation pay due for the period prior to the date of
Employee's death.
D. TERMINATION BY THE EMPLOYEE.
(i) Notwithstanding the provisions of Section 2
above, the Employee will be considered to have resigned his employment for "good
reason" if the Company, without the express written consent of the Employee,
materially breaches this Agreement.
(ii) In the event that the Employee resigns from his
employment for good reason, the Company shall be obligated to provide the
Employee with the severance
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payments and insurance coverage as required if the Company had terminated the
Employee other than for cause pursuant to Section 8B above.
(iii) In the event that the Employee resigns from his
employment without good reason, the Company shall be obligated to provide the
Employee with the payments as required if the Company had terminated the
Employee for cause pursuant to Section 8A above.
9. REPRESENTATIONS AND WARRANTIES. Employee represents and warrants
that Employee is not subject to or a party to any agreement, contract, covenant,
order or other restriction which in any way prohibits, restricts or impairs
Employee's ability to enter into this Agreement and carry out his duties and
obligations hereunder. Each party hereto represents and warrants to the other
that (i) it has the full legal right and power and all authority and approvals
required to enter into, execute and deliver this Agreement and to perform fully
all of its obligations hereunder; and (ii) this Agreement has been duly executed
and delivered by it and constitutes a valid and binding obligation of such
party, enforceable in accordance with its terms.
10. NON-COMPETITION AND SECRECY.
10.1 NO COMPETING EMPLOYMENT. For so long as Employee is
employed by the Company and for a period of the lesser of (i) twelve (12) months
after termination of employment and (ii) the expiration of the Term, Employee
shall not, directly or indirectly, own an interest in, manage, operate, join,
control, lend money, or render financial or other assistance to or participate
in or be connected with, as an officer, employee, partner, stockholder,
consultant or in a similar capacity, any sole proprietorship, partnership, firm,
corporation or other business organization or entity that competes with Source
Media or any of subsidiaries in any business in which any of them is engaged at
the time of the Employee's termination; provided, however, that nothing in this
Section 10.1 shall prohibit Employee from (i) making a non-controlling and
passive investment in a corporation or other entity whose shares are publicly
traded; or (ii) engaging in any activity referred to above in any geographic
area in which Source Media or any of its subsidiaries is not engaged in business
at the time of the Employee's termination. The foregoing restriction shall not
apply in the event that the Employee is terminated without cause or resigns his
employment for good reason.
10.2 NO INTERFERENCE. For the period ending twelve (12) months
after the later of (i) the termination of the Employee's employment and (ii) the
expiration of the Term, Employee shall not, whether for his own account or for
the account of any other individual, partnership, firm, corporation or other
business organization (other than the Company and its affiliates), intentionally
solicit, endeavor to entice away from the Company or its affiliates, or
otherwise interfere with the relationship of Company or any of its affiliates
with, any person who is employed by the Company or its affiliates at the time of
the termination of the Employee's employment.
10.3 SECRECY. Employee recognizes that the services to be
performed by him hereunder are special, unique and extraordinary in that, by
reason of his employment hereunder, he may acquire confidential information and
trade secrets concerning the operation of the
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Company or any affiliate thereof, the use or disclosure of which could cause the
Company substantial loss and damages which could not be readily calculated and
for which no remedy at law would be adequate. Accordingly, Employee covenants
and agrees with the Company that he will not at any time, except in performance
of Employee's obligations to the Company hereunder or with the prior written
consent of the Company, directly or indirectly, disclose any secret or
confidential information that he may learn or has learned by reason of his
association with the Company. The term "confidential information" includes,
without limitation, information not previously disclosed to the public or to the
trade with respect to the products, facilities, applications and methods, trade
secrets and other intellectual property, systems, procedures, manuals,
confidential reports, product price lists, customer lists, technical
information, financial information (including the revenues, costs or profits
associated with any of its products), business plans, prospects or opportunities
but shall exclude any information already in the public domain. Notwithstanding
anything to the contrary herein contained, Employee's obligation to maintain the
secrecy and confidentiality of the confidential information under this Section
10 shall not apply to any such confidential information which is disclosed
through any means other than as a result of any act by Employee constituting a
breach of this Agreement or which is required to be disclosed under applicable
law.
10.4 EXCLUSIVE PROPERTY. Employee hereby agrees to keep all
such records in connection with Employee's employment as the Company may from
time to time direct, and all such records shall be the sole and exclusive
property of the Company. Upon termination of the Employee's employment, the
Employee shall return to the Company all confidential and/or proprietary
information that exists in written or other physical form (and all copies
thereof) under the Employee's control.
10.5 INJUNCTIVE RELIEF. Without intending to limit the
remedies available to the Company, Employee acknowledges that a breach of any of
the covenants contained in this Section 10 may result in material irreparable
injury to the Company for which there is no adequate remedy at law, that it will
not be possible to measure damages for such injuries precisely and that, in the
event of such a breach or threat thereof, the Company shall be entitled to seek
to obtain a temporary restraining order and/or a preliminary injunction
restraining Employee from engaging in activities prohibited by this Section 10
or such other relief as may be required to specifically enforce any of the
covenants in this Section 10.
11. SECTION HEADINGS. The titles to the Sections of this Agreement are
solely for the convenience of the parties and shall not be used to explain,
modify, simplify, or aid in the interpretations of the provisions of this
Agreement.
12. NOTICES. All notices, demands and requests provided or permitted to
be given pursuant to this Agreement, shall be given in writing, sent by
certified mail, return receipt requested, and addressed as follows or to such
other address so designated in the appropriate manner by the parties. All
notices shall be deemed effective when mailed.
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Company: Interactive Channel, Inc.
c/o Source Media, Inc.
0000 XXX Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
With a copy to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxxxxx Xxxxxx Xxxxxxxx Xxxxxx & Xxxxxx, P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Employee: Xxxxxxxx Xxxxxxxx
000 Xxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
13. ASSIGNMENT AND ASSUMPTION. The rights of each party under this
Agreement are personal to that party and may not be assigned, delegated or
transferred to any other person, firm, corporation, or other entity without the
prior written consent of the other party, except that the Company may transfer
its rights under this Agreement to any Affiliate or other entity which succeeds,
by contract or operation of law, to all or substantially all of the business of
the Company and agrees in writing to assume the Company's obligations under this
Agreement.
14. GOVERNING LAW. This Agreement shall be governed by, construed and
enforced in accordance with the laws of the State of New York without giving
effect to the conflicts of law principles of the laws of said state.
15. ENTIRE AGREEMENT. This Agreement, and the stock option agreement
evidencing the stock option referred to in paragraph 4C, shall constitute the
entire agreement between the parties and any prior written or oral understanding
or representation of any kind, or any oral communications shall not be binding
upon either party except to the extent incorporated in this Agreement. This
Agreement supercedes any and all prior agreements between the parties.
16. MODIFICATION OF AGREEMENT. This Agreement can be modified only in
writing and shall be binding only if executed with and under the same formality
by the parties hereto or their duly authorized representatives.
17. NO WAIVER. The failure of either party to this Agreement to insist
upon the performance of any of the terms and conditions of this Agreement, or
the waiver of any breach of
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any of the terms and conditions of this Agreement, shall not be construed as
thereafter waiving any such terms and conditions, but each same shall continue
and remain in full force and effect as if no such forbearance or waiver had
occurred.
18. EFFECT OF PARTIAL INVALIDITY. The invalidity or unenforceability of
any provision or covenant of this Agreement shall not be deemed to affect the
validity or enforceability of any other provision or covenant. In the event that
any provision or covenant of this Agreement is held invalid or unenforceable,
the same shall be deemed automatically modified to the minimum extent necessary
to make such provision or covenant enforceable and the parties agree that the
remaining provisions shall be deemed to be and to remain in full force and
effect.
19. COUNTERPARTS. This Agreement may be executed in counterparts and
all counterparts so executed shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
INTERACTIVE CHANNEL, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx,
Chief Executive Officer
/s/ Xxxxxxxx Xxxxxxxx
--------------------------------
Xxxxxxxx Xxxxxxxx
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