EXHIBIT 10.9
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT, dated as of the 19th day June, 1997, is
made by and between Xxxx-Xxxxxxxx Xxxxx, 000 Xxxxxxxxx Xxxxx #0X, Xxx Xxxx, Xxx
Xxxx 00000 (hereinafter the "Employee") and Razorfish, Inc., a New York
corporation having its principal executive offices at 000 Xxxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, XX 00000 (hereinafter the "Company").
WHEREAS, Company desires to employ Employee and Employee desires to
accept such employment on the terms set forth in this Agreement;
NOW THEREFORE, the parties hereto agree as follows:
1. Position and Responsibilities.
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1.1 (a) Employee shall serve as Vice President of Business
Development and Strategy. During Employee's employment hereunder, the Employee's
principal place of business shall be Company's principal offices in the New York
metropolitan area; but it is agreed that the Employee will be expected to engage
in reasonable travel from time to time. Employee shall report to Xxxxxxx X.
Xxxxxx, the President of the Company.
(b) Employee shall perform such duties as are commonly performed
by employees holding the aforesaid title and as the Company shall from time to
time designate. The Company will conduct a review of Employee's job
responsibilities on a semi-annual basis.
1.2 Employee shall, to the best of his ability, devote his full time
and best efforts to the performance of his duties hereunder and the business and
affairs of the Company in accordance with the instructions and directions of
Company in all matters, including those involving creative decisions and
judgments, and, in doing so, shall duly, punctually and faithfully perform and
observe any and all rules and policies which the Company may now or shall
hereafter establish governing the conduct of its business. Notwithstanding the
foregoing and subject to Company's prior approval, it is understood and agreed
that Employee shall be entitled to engage in non-Company projects during non-
business time.
2. Term of Employment.
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2.1 (a) (i) Employee's employment under this Agreement shall
commence as of June 30, 1997 and terminate on June 30, 1998, unless sooner
terminated by either party hereto in accordance with paragraph 2. 1 (a)(ii)
below or by the Company as provided in Section 2.2.
(ii) Notwithstanding the terms of Section 2. 1 (a)(i)
above, either party hereto may terminate the term hereof by sending the other
party written notice of such termination prior to September 30, 1997.
(b) Notwithstanding the foregoing, beginning July 1, 1998 this
Agreement and Employee's employment under this Agreement shall renew for
successive one (1) year terms on the terms and conditions set forth herein
unless either party gives written notice to the other of non-renewal, within
ninety (90) days prior to scheduled renewal. Except as expressly provided to the
contrary in Section 2.5(c), Employee's rights to pay and benefits shall cease on
the date his employment hereunder terminates.
2.2 The Company shall have the right, upon written notice to Employee, to
terminate Employee's employment at any time for cause, as defined in Section 2.3
below.
2.3 For purposes of Section 2.2, "cause" shall include material breach by
Employee of this Agreement, gross negligence, gross neglect of duties, gross
insubordination, Employee's unauthorized appropriation of the Company's
property, willful violation of any law applicable to the conduct of the
Company's business and affairs the violation of which has or would reasonably be
expected to have a material adverse effect upon the business or financial
condition of the Company, conviction of or plea of no contest to any felony
involving moral turpitude and habitual insobriety, drug abuse or absenteeism.
2.4 Subject to Section 2.2, Employee's employment under this Agreement
shall terminate immediately upon his death, without further notice. Subject to
Section 2.2, if Employee becomes disabled from performing his duties under this
Agreement, Company may terminate his employment under this Agreement, provided
that Employee also shall be entitled to such disability, medical and other
benefits as may be provided generally for disabled employees of the Company
during the period he remains disabled. For purposes of this Section 2.4,
Employee may be deemed to be disabled if he is unable to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted
or can be expected to last for a continuous period of not less than 12 months.
2.5 (a) Except as is provided in paragraph 2.5(b) below, if Company
terminates Employee's employment for any reason other than for Cause as set
forth in Sections 2.2 and 2.3 or if Employee's employment terminates for death
or disability as set forth in Section 2.4, then the Company shall pay Employee
or Employee's lawful estate an amount equal to the remainder of Employee's
salary as provided by Section 3.1 below in installments in accordance with
Company policy.
(b) If either Company or Employee terminates the term hereof in
accordance with the terms of Section 2.1(a)(h) above or if Company breaches
Section 1. 1 (a) and fails to cure such breach within thirty (30) days after
receiving notice thereof from Employee, then the Company shall pay Employee an
amount equal to three months' base compensation.
(c) In the event that Company fails to provide Employee with the
notice required in Section 2.1(b) above, Employee shall be entitled to receive
no less than an amount equal to three months' base compensation calculated from
the date Company actually provides to Employee the aforesaid notice.
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(d) In the event that Employee terminates the term hereof after
the date set forth in Section 2.1 (a)(ii), then Company shall pay Employee an
amount equal to one months' base compensation.
3. Compensation.
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3.1 During the period of this Agreement, the Company shall pay to
Employee a base salary at an annual rate of One Hundred Thousand Dollars
($100,000), payable in installments in accordance with Company policy. The Board
of Directors shall review the base salary semi-annually, and may in its sole
discretion increase it to reflect performance, appropriate industry guideline
data and other factors. However, the Board is not obligated to provide for any
increases.
3.2 Beginning after six months of employment, Employee shall be
eligible from time to time to receive bonuses or to participate in profit
sharing. Eligibility will be determined through a review process that will
consider Employee's work performance and contribution to the Company, and the
Company's performance, as determined by, and at the discretion of the Board of
Directors. Percentage of profit sharing or bonus, if any, will be determined
during the review by the Board of Directors, provided, however, that Company and
Employee acknowledge that a bonus hereunder may be in a range of Fifty Percent
(50%) to One Hundred Percent (100%) of annual base compensation. Employee
performance reviews will be conducted by the Company in accordance with company
policy.
3.3 Intentionally Omitted.
3.4 (a) (i) The Company shall reimburse Employee for reasonable
business expenses incurred on behalf of the Company upon presentation of
appropriate receipts, including, without limitation, entertainment of clients
and guests of the Company as deemed appropriate in the sole discretion of
Company, reasonable approved business travel, cellular phone charges and on-line
access charges.
(ii) The Company shall provide to Employee for Employee's
use during the term hereof in connection with the payment of the expenses
described in Section 3.4(a)(i) above a corporate charge card (e.g., American
Express or Visa).
(b) The Company shall reimburse Employee during the term of his
employment hereunder for the actual, reasonable, out-of-pocket expenses incurred
by Employee in connection with the maintenance by Employee of a membership to
one (1) sports and fitness gym (the "Gym") which Gym has been mutually approved
by the Company and Employee.
(c) The Company shall provide to Employee for Employee's use
during the term hereof one (1) desktop computer and one (1) portable computer
together with appropriate peripherals.
3.5 In addition to the compensation payable to Employee pursuant to
Section 3.1 and Section 3.2 above, Employee shall participate in any benefits
which Company from time to time may offer to or provide for its employees,
including, but not limited to, vacation,
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participation in pension plans, profit sharing plans, the Stock Option and
Incentive Plan described in the Incentive Stock Option Agreement attached hereto
as Schedule A and made a part hereof as restricted by the stock restriction
agreement attached hereto as Schedule B and made a part hereof and
hospitalization and medical benefit plans. The Board of Directors may in its
sole discretion increase insurance coverage for all employees as permitted by
business conditions. However, the Board is not obligated to provide any
increases. It is expressly understood and agreed that, notwithstanding any so-
called "waiting periods" or other delays in the commencement of health insurance
coverage, Company shall provide Employee with health insurance as detailed in
the standard policies of the Company as of the commencement of this Agreement.
3.6 Employee recognizes that the compensation, benefits and other
amounts provided by the Company under this Agreement may be subject to federal,
state or local income taxes. It is expressly understood and agreed that all such
taxes shall be the responsibility of Employee. To the extent that federal, state
or local law requires withholding of taxes on compensation, benefits or other
amounts provided under this Agreement, the Company shall withhold the necessary
amounts from the amounts payable to Employee under this Agreement.
4. Ownership of and Rights to Proprietary Information.
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4.1 Employee hereby agrees to assign and does assign to the Company
all of Employee's right, title and interest in any and all proprietary
information discovered, conceived, developed, created or reduced to practice by
Employee personally or jointly with others in the course of performing services
under this Agreement. Employee agrees to disclose to the Company the existence
of all such proprietary information, and further agrees to execute and deliver
promptly all proper papers and perform all proper legal acts which the Company
deems necessary or desirable to vest in the Company all of Employee's right,
title and interest in and to such proprietary information, to enable the Company
to file patent applications, and obtain and maintain Letters Patent with respect
to patentable material and to enable the Company to confirm or perfect its
rights in copyrightable material. Employee agrees that all proprietary
information which is subject to United States Copyright Law is a "work made for
hire," and in the event that it is determined that any such work is deemed not
to be a work made for hire, the foregoing assignment and agreement to assign
shall apply.
4.2 The Company agrees that it shall have no right, title or interest
in any proprietary information for which no equipment, supplies, facility or
trade secret information of the Company was used, and which was developed
entirely apart from the services performed by Employee under this Agreement, and
which does not relate to or result from Employee's work under this Agreement.
Employee represents that, except as disclosed to the Company in writing, all
material created or submitted by Employee for or to Company (excluding any
material which is assigned by Company to Employee for preparation) shall not be
subject to an obligation of confidentiality in favor of, or infringe upon or
violate any rights of any third person, including but not limited to any right
or interest in any copyright, patent or trade secret rights.
4.3 "Proprietary information," for purposes of this Agreement,
includes but shall not be limited to any trade secret (as defined in the Uniform
Trade Secrets Act), any
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inventions, improvements and ideas, whether or not patentable, or know-how
relating thereto, any material which is protected by copyright and any other
Confidential Information (as defined in paragraph 6.3 below).
5. Name and Likeness. The Company shall have the right to use Employee's
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name as well as Employee's biography and likeness in the form approved by
Employee in connection with its business, including in advertising its products
and services, and may, with Employee's permission, which shall not be withheld
unreasonably, grant this right to others, but not for use as a direct
endorsement.
6. Confidentiality.
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6.1 Employee shall not, during the term and thereafter, disclose
confidential information of the Company (other than to an employee of the
Company or to a person to whom disclosure is reasonably necessary or appropriate
in connection with the performance by Employee of services hereunder) and shall
not use confidential information of the Company for any purpose beyond the
performance of services under this Agreement without the prior written consent
of the Company. All confidential information shall remain the property of the
Company. Upon termination of employment, Employee shall return to the Company
all documents, records, plans, designs, notebooks and other evidences, including
all copies thereof, of information, including proprietary information or
confidential information, obtained by Employee during employment.
6.2 The obligation of confidence under this Agreement shall not apply
to information which Employee can show from documented records is or becomes
generally available to the public without fault of Employee, or which is
obtained without restriction on publication or use from a third party having the
right to disclose the same.
6.3 "Confidential information," for purposes of this Agreement shall
mean all information maintained in confidence by the Company. It includes, but
is not limited to, all information that derives independent economic value,
actual or potential, from not being generally known to, and not being readily
ascertainable through proper means by, other persons who can derive economic
value from its disclosure or use. It includes, but is not limited to,
proprietary information and information relating to such business matters as
research and development, manufacturing processes, management systems and
techniques, the identity and profiles of customers and suppliers and sales and
marketing plans and information. Such information may be marked as confidential
or proprietary, or received under circumstances reasonably interpreted as
imposing an obligation of confidentiality. Such information does not lose its
status as confidential information merely because it was known by a limited
number of persons or entities or because it was not entirely originated by the
Company. Employee acknowledges that the confidential information of the Company
is a valuable, special and unique asset of the Company, and that any disclosure
of such confidential information may be materially damaging to the Company.
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7. Restrictions on Competitive Activities. Employee acknowledges he or
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she will have access to significant confidential and valuable information which
can be used unfairly and to the harm of the Company by present or potential
competitors in the digital new media industry. Employee therefore agrees as
follows:
7.1 During any period during Employee's employment with the Company,
Employee will not render services or give advice to, affiliate with (as an
employee, shareholder, partner, consultant or otherwise), or invest or acquire
any interest in, in whole or in significant part, any other person or
organization which is engaged in or about to become engaged in commercial
development of digital new media products or services including developing home
pages, web sites or other interactive environments on the World Wide Web, or any
proprietorship, partnership, corporation or other entity which is engaged in
developing, owning or operating any such environment (a Conflicting
Organization). Employee shall not be prohibited, however, from investing in
securities of any company that is listed on a national securities exchange or
traded on The NASDAQ Stock Market, provided that Employee does not hereafter
own, or have the right to acquire, more than 5% of the outstanding voting
securities of such company.
7.2 For a period of six months after termination with cause by
Company of Employee's employment or for a period of six months after the
voluntary termination by Employee of Employee's employment, without prior
written approval of the Company's Board of Directors, which shall not be
withheld unreasonably, Employee will not:
(i) render services or give advice to, or affiliate with
(as an employee, shareholder, partner, consultant or otherwise) or invest
or acquire any interest in, any Conflicting Organization. Notwithstanding
the foregoing, if the business of the Conflicting Organization has separate
and distinct divisions, Employee may, following termination of such
employment, render services or give advice to, or affiliate with, a
division which would not itself constitute a Conflicting Organization if,
prior thereto, the Company receives written assurances satisfactory to the
Company from the Conflicting Organization and Employee that Employee will
not directly or indirectly render services or give advice or information to
any division of such Conflicting Organization which would itself constitute
a Conflicting Organization; or
(ii) solicit, endeavor to entice away from the Company, or
otherwise interfere with the relationship of the Company with any person
who is employed by or otherwise engaged to perform services for the
Company, or any person or entity who is, or was within the term of this
Agreement, a customer or client of the Company, whether for Employee's own
account or for the account of any other individual, partnership, firm,
corporation or other business organization. For the purposes of this
Section, the Company shall mean and include the Company's distributors and
suppliers.
7.3 During the periods described in Sections 7.1 and 7.2, Employee
will not assist or encourage, directly or indirectly, any other person to carry
out, directly or indirectly, any activity that would be prohibited by the above
provisions of this Section 7 If such activity were carried out by Employee,
either directly or indirectly; and in particular Employee agrees
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that Employee will not induce, directly or indirectly, any Shareholder of the
Company to carry out, directly or indirectly, any such activity.
8. Equitable Remedies. Employee acknowledges and agrees that the Company
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will not have an adequate remedy at law in the event of any breach by Employee
of Sections 4, 6 and 7 and the Company shall therefore be entitled, in addition
to any other remedies that may be available, to injunctive and/or other
equitable relief to prevent or remedy a breach of such sections by Employee.
9. Miscellaneous.
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9.1 Survival. Employee's duties under Sections 4, 6 and 7 shall
survive termination of Employee's employment with the Company to the extent
provided under such Section.
9.2 Assignment. This Agreement and the rights and obligations of the
parties hereto shall bind and inure to the benefit of any successor or
successors of the Company by way of reorganization, or merger and any assignee
of all or substantially all of its business and properties, but, except as to
any such successor or assignee of the Company, neither this Agreement nor any
rights or benefits hereunder may be assigned by the Company or by Employee.
9.3 Interpretation. In case any one or more of the provisions
contained in the Agreement shall be held to be invalid, illegal or unenforceable
in any respect, for any reason, such invalidity, illegality or unenforceability
shall not affect the other provisions of this Agreement, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein. If, moreover, any one or more of the provisions
contained in this Agreement shall be held to be excessively broad, for any
reason, it shall be construed by limiting and reducing it so as to be
enforceable to the extent compatible with the applicable law as it shall then
appear.
9.4 Notices. Any notice which the company is required or may desire
to give to Employee shall be given by personal delivery or registered or
certified mail, return receipt requested, addressed to Employee at his address
of record with the Company or at such other place as Employee may from time to
time designate in writing. Any notice which Employee is required or may desire
to give to the Company hereunder shall be given by personal delivery or by
registered or certified mail, return receipt requested, addressed to the Company
at its principal office, or at such other office as the company may from time to
time designate in writing. The date of personal delivery or the date of mailing
such notice shall be deemed to be the date of delivery thereof.
9.5 Waiver. If either party should waive any breach of any provisions
of this Agreement, he or it shall not thereby be deemed to have waived any
preceding or succeeding breach of the same or any other provisions of this
Agreement.
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9.6 Complete Agreement; Amendments. The foregoing is the entire
agreement of the parties with respect to the subject matter hereof. This
Agreement may not be amended, supplemented, canceled or discharged except by
written instrument executed by both parties hereto.
9.7 Applicable Law. This Agreement has been negotiated in, and shall
be governed by, the internal laws of the State of New York.
9.8 Headings. The headings of the sections hereof are inserted for
convenience only and shall not be deemed to constitute a part hereof nor to
affect the meaning thereof.
9.9 Expectations Regarding Employment, Service as Officer or Director
and Ownership of Shares of the Company.
(i) THE COMPANY AND EMPLOYEE AGREE THAT THIS AGREEMENT
EXPRESSES ALL OF THE EXPECTATIONS BETWEEN EMPLOYEE AND THE COMPANY
REGARDING THE TERM OF EMPLOYEE'S EMPLOYMENT AND EMPLOYEE'S AND THE
COMPANY'S RIGHT TO TERMINATE THAT EMPLOYMENT. EMPLOYEE SHALL HAVE NO
GREATER RIGHTS AS AN EMPLOYEE OR AS AN OFFICER, DIRECTOR OR SHAREHOLDER, AS
THE CASE MAY BE, OF THE COMPANY (OR OF ANY DIRECT OR INDIRECT SUBSIDIARY OR
OTHER AFFILIATE OF THE COMPANY) THAN ANY OTHER PERSON WHO IS NOT RELATED TO
THE COMPANY OR SUCH AFFILIATE IN MORE THAN ONE SUCH CAPACITY. THE COMPANY
HEREBY ADVISES EMPLOYEE THAT THE COMPANY WOULD NOT ENTER INTO THIS
AGREEMENT OR SELL SHARES OF COMPANY STOCK TO EMPLOYEE OR ELECT EMPLOYEE AS
AN OFFICER OR DIRECTOR, AS THE CASE MAY BE, IF EMPLOYEE HAD ANY EXPECTATION
THAT EMPLOYEE'S PURCHASE OF STOCK (IF ANY) OR SERVICE AS AN OFFICER OR
DIRECTOR WOULD ENTITLE EMPLOYEE TO CONTINUED EMPLOYMENT WITH (OR CONTINUED
STATUS AS AN OFFICER OR DIRECTOR OF) THE COMPANY OR ANY AFFILIATE OF THE
COMPANY OTHER THAN AS SET FORTH IN THIS AGREEMENT. WITHOUT LIMITING THE
FOREGOING SENTENCES, EMPLOYEE ACKNOWLEDGES THAT THE COMPANY, IN ITS SOLE
DISCRETION, MAY DECLINE IN THE FUTURE TO RENEW HIS EMPLOYMENT UPON
TERMINATION OF THIS AGREEMENT FOR ANY REASON.
(ii) EMPLOYEE CONFIRMS THAT EMPLOYEE RAS REVIEWED THIS
AGREEMENT CAREFULLY AND UNDERSTANDS IT. EMPLOYEE FURTHER CONFIRMS THAT
EMPLOYEE HAS CONSULTED WITH OR BEEN AFFORDED AMPLE OPPORTUNITY TO CONSULT
WITH LEGAL COUNSEL REPRESENTING EMPLOYEE CONCERNING THIS AGREEMENT AND ANY
OTHER AGREEMENTS BETWEEN OR AMONG EMPLOYEE, THE COMPANY AND ANY OF ITS
PRESENT OR PROSPECTIVE SHAREHOLDERS AND/OR DIRECTORS, WHICH MAY HAVE BEEN
ENTERED INTO SUBSTANTIALLY CONTEMPORANEOUSLY WITH THIS AGREEMENT.
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IN WITNESS WHEREOF, the parties have hereunto set their hand as
of the date first set forth above.
/s/ Xxxx-Xxxxxxxxx Xxxxx
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XXXX-XXXXXXXXX XXXXX
RAZORFISH, INC.
BY: /s/ Xxxxxxx X. Xxxxxx
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Authorized Officer
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