Exhibit 10.12
EMPLOYMENT AGREEMENT (the "Agreement"), dated as of July 11, 2005, by and
between MEDIALINK WORLDWIDE INCORPORATED, a Delaware corporation with offices at
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Corporation"), and Xxxxxxx X.
Xxxxxxxx, an individual residing at 000 Xxxxxxxx Xxxxxx, Xxxxxx Xxxxxx, XX
00000, (the "Employee").
W I T N E S S E T H:
WHEREAS, the Corporation desires to retain the services of the Employee
upon the terms and conditions hereinafter set forth; and
WHEREAS, the Employee desires to render services to the Corporation upon
the terms and conditions hereinafter set forth.
NOW, WHEREFORE, the parties mutually agree as follows:
Section 1. Employment. The Corporation employs the Employee and the
Employee on the Effective Date accepts such employment, as Treasurer until
August 21st, 2005 and thereafter as Chief Financial Officer of the Corporation,
subject to the terms and conditions set forth in this Agreement.
Section 2. Duties. The Employee shall be employed as Treasurer until
August 21st, 2005 and thereafter as Chief Financial Officer. The Employee shall
properly perform such duties as may be assigned to him from time to time by the
Corporation's Chief Executive Officer or the Board of Directors of the
Corporation as the case may be. During the term of this Agreement, the Employee
shall devote all of his available business time to the performance of his duties
hereunder.
Section 3. Term of Employment. The term of the Employee's employment shall
commence on the date hereof (the "Effective Date") and shall continue until
terminated pursuant to Section 5.
Section 4. Compensation of Employee.
4.1. Compensation. The Corporation shall pay to the Employee as
annual compensation for his services hereunder a salary ("Salary") in an amount
equal to Two Hundred and Twenty Thousand ($220,000) Dollars. The Salary shall be
reviewed every January 1st for merit increases and shall in all events be
increased on the anniversary date of this Agreement by the percentage increase,
if any, in the Consumer Price Index, as defined herein, for the most recent
calendar month for which the Consumer Price Index has been published over the
Consumer Price Index for the same calendar month in the immediately preceding
year. As used herein, the "Consumer Price Index" shall mean the Consumer Price
Index for All Urban Consumers, New York - Northeastern New Jersey area
(1982-84=100) issued by the Bureau of Labor Statistics of the United States
Department of Labor; provided that in the event the Consumer Price Index shall
hereafter be converted to a different standard reference base or otherwise
revised, the determination of the salary increase shall be made with the use of
such conversion factor, formula or table for converting the Consumer Price Index
as may be published by the Bureau of Labor Statistics. The Salary shall be
payable semi-monthly less such deductions as shall be required to be withheld by
applicable law and regulations.
4.2. Expenses. The Corporation shall pay or reimburse the Employee
for all reasonable and necessary business, travel or other expenses incurred by
him with the prior consent of the Corporation, upon proper documentation
thereof, which may be incurred by him in connection with the rendition of the
services contemplated hereunder.
4.3. Benefits. During the term of this Agreement, the Employee shall
be entitled to participate in such pension, profit sharing, group insurance,
option plans, hospitalization, group health benefit plans and all other benefits
and plans as the Corporation provides to its employees.
4.4. Discretionary Payments. Nothing herein shall preclude the
Corporation from paying the Employee such additional bonuses or other
compensation, as the Board of Directors, in its discretion, may authorize from
time to time.
4.5. Stock Options. Upon the death or Disability, as hereinafter
defined, of the Employee or in the event the Employee is terminated without
cause, as hereinafter defined, or as a result of a Change in Control, as
hereinafter defined, all stock options granted to the Employee, under the
Corporation's Amended and Restated Stock Option Plan, including non-vested
options, shall automatically become vested and immediately exercisable.
4.6 Bonus. The Employee shall be eligible for a bonus at the end of
each fiscal year during the Term hereof based on two separate standards. The
first standard, representing one-half of the bonus, shall be based on the
Corporation achieving certain financial criteria as set forth in Exhibit A
attached hereto, which Exhibit A shall be amended, in April of each year during
the Term, by the Chief Executive Officer of the Corporation, to prescribe the
financial criteria to be achieved for the following fiscal year. The second
standard, representing one-half of the bonus, shall be based on certain
subjective criteria, as set forth on Exhibit B attached hereto, which Exhibit B
shall be amended, in April of each year during the Term, by the Chief Executive
Officer of the Corporation, to prescribe the subjective criteria to be achieved
for the following fiscal year. The Chief Executive Officer and the Compensation
Committee shall determine, in their sole and absolute discretion, whether the
Employee has achieved the subjective criteria. The bonus, to the extent earned,
shall be payable within 120 days of the end of each fiscal year to which such
bonus relates. For the period from the Effective Date to December 31, 2005, the
Employee shall be eligible for the bonus outlined in Exhibits A and B.
2
Section 5. Termination.
5.1. Termination of Employment. This Agreement shall terminate upon
the death, Disability, as hereinafter defined, termination of employment of the
Employee For Cause, as hereinafter defined, termination of the employment of
Employee without cause or because Employee voluntarily leaves his employment
hereunder.
5.2. Termination For Cause/Voluntary Departure. In the event of a
termination For Cause or because Employee voluntarily leaves his employment
hereunder, the Corporation shall pay Employee all accrued and unpaid Salary and
vacation through the date of termination. The Corporation shall have no further
obligation to the Employee hereunder.
5.3. Termination Without Cause. In the event of a termination
without cause, the Employee shall be entitled to continue to participate in the
hospitalization, group health benefit and disability plans of the Corporation on
the same terms and conditions as immediately prior to his termination and shall
receive his Salary, for a period equal to six (6) months, if such termination
occurs within six (6) months of the Effective Date and thereafter for a period
equal to twelve (12) months.
5.4. Termination Upon Death. In the event of a termination upon the
death of Employee, the Corporation shall pay to any person designated by the
Employee, in writing or, if no such person is designated, to his estate, the
Salary which would otherwise be payable to the Employee for a period of six (6)
months from the date of such death. In the event of a termination upon the death
of Employee, the Corporation shall pay for a period of six (6) months after such
death, on behalf of the Employee's surviving dependents, the COBRA insurance
premiums of such dependents.
5.5. Termination Upon Disability. In the event of a termination upon
the Disability of Employee, the Corporation shall pay to the Employee or any
person designated by the Employee during the first three months immediately
after the termination of employment due to such Disability, the Salary which
would otherwise be payable to the Employee. In addition, the Corporation shall
pay the COBRA insurance premiums of the Employee and his dependents for six (6)
months from the date of Disability. The Employee hereby acknowledges that
payments pursuant to this Section 5.5 are in lieu of the Employee's receipt of
funds under the Corporation's Salary Continuation Plan and that Employee hereby
agrees to assign to the Corporation any benefits that he/she may be entitled to
under any disability insurance plans of the Corporation.
5.6. Definition of "For Cause". As used herein, the term "For Cause"
means (i) the Employee's indictment, plea or conviction of any criminal
violation involving dishonesty, fraud, breach of trust or any other crime
involving moral turpitude which constitutes a felony, whether or not involving
the Corporation; (ii) the Employee's willful engagement in gross misconduct in
the performance of his duties that materially injures the Corporation; (iii) the
Employee's gross neglect of his duties under this Agreement; (iv) the Employee's
violation of Sections 9 or 10 of this Agreement; (v) Employee's habitual
drunkenness or habitual use of illegal substances; (vi) behavior by the Employee
which is detrimental to the Corporation's reputation; (vii) the Employee's
willful and continuous failure to substantially perform his duties under this
Agreement, including but not limited to failure resulting from gross
insubordination; or (viii) the Employee's willful actions or willful omissions
which cause the Corporation's securities filings to be inaccurate, false or
misleading. A termination of Employee pursuant to subparagraph (vii) shall occur
only after the Board provides written notice to the Employee of his failure and
10 calendar days' opportunity to cure such failure. An act of the Employee will
not be deemed "willful" unless done or omitted to be done by the Employee not in
good faith and without reasonable belief that the act or omission was in the
Corporation's best interests.
3
Section 6. Disability
6.1. Definition. In the event the Employee is mentally or physically
incapable or unable to perform his regular and customary duties of employment
with the Corporation for a period of ninety (90) days in any one hundred twenty
(120) day period during the Term, the Employee shall be deemed to be suffering
from a "Disability".
6.2. Payment During Disability. In the event the Employee is unable
to perform his duties hereunder by reason of a disability, which disability does
not constitute a Disability, the Corporation shall continue to pay the Employee
his Salary and benefits during the continuance of such disability. The Employee
hereby acknowledges that payments pursuant to this Section 6.2 are in lieu of
the Employee's receipt of funds under the Corporation's Salary Continuation Plan
and that Employee hereby agrees to assign to the Corporation any benefits that
he may be entitled to under any disability insurance plans of the Corporation.
Section 7. Vacations and Personal Days. The Employee shall be
entitled to seven (7) vacation days for the period from the Effective Date to
December 31, 2005 and in future years, the greater of three (3) weeks, or the
entitlement under the Corporation's vacation policy. In addition, the Employee
shall be entitled to personal days in accordance with the Corporation's policy.
The Employee's Salary shall be paid in full during his vacation and personal
days. The Employee shall take his vacation at such time or times as the Employee
and the Corporation shall determine is mutually convenient.
Section 8. Change in Control.
8.1. Change in Control Defined. A "Change in Control" shall be
deemed to occur upon the earliest to occur after the date of this Agreement of
any of the following events;
(a) Acquisition of Stock by Third Party. Any Person (as
hereinafter defined) is or becomes the Beneficial Owner (as hereinafter
defined), directly or indirectly, of securities of the Corporation representing
fifty (50%) percent or more of the combined voting power of the Corporation's
then outstanding securities.
(b) Change in Board of Directors. The date when Continuing
Directors cease to be a majority of the Directors then in office;
4
(c) Corporate Transactions. The effective date of a merger or
consolidation of the Corporation with any other entity, other than a merger or
consolidation which would result in the voting securities of the Corporation
outstanding immediately prior to such merger or consolidation continuing to
represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity) more than 51% of the combined voting power
of the voting securities of the surviving entity outstanding immediately after
such merger or consolidation and with the power to elect at least a majority of
the board of directors or other governing body of such surviving entity;
(d) Liquidation. The approval by the shareholders of the
Corporation of a complete liquidation of the Corporation or an agreement for the
sale or disposition by the Corporation of all or substantially all of the
Corporation's assets; and
(e) Other Events. There occurs any other event of a nature
that would be required to be reported in response to Item 6(e) of Schedule 14A
of Regulation 14A (or a response to any similar item on any similar schedule or
form) promulgated under the Exchange Act, whether or not the Corporation is then
subject to such reporting requirement.
8.2. Termination Following Change in Control.
(a) The Corporation will provide or cause to be provided to
Employee the rights and benefits described in Section 8.3 if, within twelve (12)
months following a Change in Control, the Corporation terminates the Employee's
employment for reasons other than as a result of Employee's death, Disability or
For Cause.
(b) The Corporation will provide or cause to be provided to
Employee the rights and benefits described in Section 8.3 if, within twelve (12)
months following a Change in Control, the Employee terminates the Employee's
employment following the occurrence of any of the following events without
Employee's written consent:
(i) the assignment of Employee to any duties or
responsibilities that are inconsistent with his position,
duties, responsibilities or status immediately preceding such
Change in Control, or a change in his reporting
responsibilities or position at the Corporation;
(ii) the reduction of Employee's Salary, or the failure
to increase Employee's Salary in accordance with this
Agreement;
(iii) the failure to continue in effect the incentive
plans, employee benefits plans and other compensation
policies, practices and arrangement in which Employee
participated immediately before the Change in Control, or the
failure to continue Employee's participation on substantially
the same basis, both in terms of the amount of benefit
provided and the level of participation relative to other
participants;
5
(iv) the transfer of Employee to a location more than 25
miles from his location at the time of the Change in Control,
or a material increase in the amount of travel normally
required of Employee in connection with his employment by the
Corporation;
(v) the good faith determination by Employee that due to
the Change in Control (including any changes in circumstances
at the Corporation that directly or indirectly affect
Employee's position, duties, responsibilities or status as in
effect immediately preceding such Change in Control) he is no
longer able effectively to discharge his duties and
responsibilities;
(vi) the Corporation's failure to pay to Employee any
portion of Employee's current compensation or to pay to
Employee any portion of an installment or deferred
compensation under any deferred compensation program of the
Corporation within seven (7) days of the date such
compensation is due;
(vii) the Corporation's failure to continue to provide
Employee with benefits substantially similar in the aggregate
to those enjoyed by Employee under any of the Corporation's
life insurance, medical, health and accident, disability,
pension, retirement, or other benefit plans or practices in
which Employee and Employee's eligible family members were
eligible to participate in immediately preceding such Change
in Control, the taking of any action by the Corporation that
would directly or indirectly materially reduce any of such
benefits, or the failure by the Corporation to provide
Employee with the number of paid vacation days to which
Employee is entitled on the basis of years of service with the
Corporation in accordance with the Corporation's normal
vacation policy in effect immediately preceding such Change in
Control; or
(viii) any material breach by the Corporation of any
provision of this Agreement.
8.3. Payment on Change in Control. In the event of the termination
of Employee's employment under any of the circumstances set forth in Section 8.2
("Change in Control Termination"), the Corporation and/or its successor shall be
obligated to pay to the Employee a lump sum in an amount equal to: (i) his
annual salary at the date of the Change in Control, and (ii) the bonus declared
payable to the Employee for the immediately preceding calendar year. The payment
of the above amount shall be made as soon as practicable after the Change in
Control Termination, but in no event more than thirty (30) days after such
Change in Control Termination and shall be in addition to any other payments to
which the Employee may be entitled pursuant to Sections 4.5, 5 and 6 hereof. In
addition, the Corporation shall: (i) continue to allow Employee to participate
in the hospitalization, group health benefit and disability plans of the
Corporation for twelve ( 12) months from the date of the Change in Control
Termination on the same terms and conditions as immediately prior to such Change
in Control Termination (or provide the equivalent thereof if such plans do not
allow such participation), and (ii) provide appropriate outplacement services
the cost of which shall not exceed $3,000 as selected by the Employee for up to
12 months from the date of the Change in Control Termination.
6
8.4. Certain Definitions. For purposes of this Section 8, the
following terms shall have the following meanings:
(a) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
(b) "Person" shall have the meaning as set forth in Section
13(d) and 14(d) of the Exchange Act; provided, however, that Person shall
exclude (i) the Corporation, (ii) any trustee or other fiduciary holding
securities under an employee benefit plan of the Corporation, and (iii) any
corporation owned, directly or indirectly, by the shareholders of the
Corporation in substantially the same proportions as their ownership of stock of
the Corporation.
(c) "Beneficial Owner" shall have the meaning given to such
term in Rule 13d-3 under the Exchange Act.
(d) "Continuing Directors" as used in this Agreement shall
mean the persons who constitute the Board of Directors of the Corporation on the
date hereof together with their successors whose nominations were approved by a
majority of Continuing Directors.
Section 9. Disclosure of Conflicts of Interest; Abstention from
Speculation in Securities of the Corporation or Clients.
9.1. Conflicts of Interest; Speculation in Securities.
(a) In order to avoid actual or apparent conflicts of
interest, the Employee shall take all necessary actions to disclose to the
Corporation any direct or indirect ownership or financial interest in (i) any
company, person or entity which is a service provider to the Corporation or (ii)
an actual or intended client of the Corporation.
(b) While the Employee is employed by the Corporation, the
Employee shall abstain from divulging or appropriating to the Employee's own use
or to that of others any secret, confidential or proprietary information or
knowledge regarding the Corporation, its clients or customers for the purpose of
speculation in the securities of any of them.
9.2. General Requirements. The Employee shall observe such lawful
policies of the Corporation as may from time-to-time apply.
7
9.3. Xxxxxxx Xxxxxxx. Considering that the Corporation is a
publicly-traded corporation, the Employee hereby agrees that the Employee shall
comply with any and all federal and state securities laws, including but not
limited to those that relate to non-disclosure of information, xxxxxxx xxxxxxx
and individual reporting requirements and shall specifically abstain from
discussing the non-public aspects of the Corporation's business affairs with any
individual or group of individuals (e.g., Internet chat rooms) who does not have
a business need to know such information for the benefit of the Corporation.
Section 10. Disclosure of Confidential Information.
10.1. The Employee hereby acknowledges that the principal business
of the Corporation is providing video and audio production and satellite and
other distribution services to television and radio stations and Internet sites
for corporations and other organizations seeking to communicate their news to
the public; corporation consultation and production; distribution of public
relations text, audio and video to news media and the general public via
satellite, streaming media, cassette, wire or other means; distribution of press
releases by the Internet, mail and facsimile; the maintenance of databases of
media contacts for and on behalf of clients; research and analysis of
communications and marketing programs, including analysis and appraisals of
public relations and public affairs campaigns, marketing and promotional plans,
measurement system design as determined through press clipping review, either on
paper, video or audio tape or electronic database searches, dashboard
development, workshops and conferences; and such other businesses as the
Corporation may conduct from time to time (the "Business"). Employee
acknowledges that he will be acquiring confidential information concerning the
Corporation and the Business and that, among other things, his knowledge of the
Business will be enhanced through his employment by the Corporation. Employee
acknowledges that such information is of great value to the Corporation, is the
sole property of the Corporation, and has been and will be acquired by him in
confidence. In consideration of the obligations undertaken by the Corporation
herein, Employee will not, unless required by law, at any time, during or after
the term of this Agreement, reveal, divulge or make known to any person, any
information which is treated as confidential by the Corporation and not
otherwise in the public domain or previously known to him. Employee agrees that
all materials or copies thereof containing confidential information of the
Corporation in Employee's custody or possession will not, at any time, be
removed from the Corporation's premises without prior written consent of an
executive officer of the Corporation (except as reasonably necessary in the
discharge of Employee's duties hereunder) and shall be delivered to the
Corporation upon the earlier of (i) a request by the Corporation or (ii) the
termination of Employee's employment with the Corporation. After such delivery,
Employee shall not retain any such materials or copies thereof.
10.2. Employee agrees to make full and prompt disclosure to the
Corporation of all inventions, improvements, discoveries, methods, developments,
computer software (and programs and code) and works of authorship, whether or
not patentable or copyrightable, which were or are created, made, conceived or
reduced to practice by Employee or under Employee's direction or jointly with
others during Employee's employment by the Corporation or during Employee's
provision of services as an independent contractor to the Corporation, whether
or not during normal working hours or on the premises of the Corporation (all of
which are collectively referred to in this Agreement as "Developments").
8
10.3. Employee also agrees to assign and, by executing this
Agreement, Employee does hereby assign, to the Corporation (or to any person or
entity designated by the Corporation) all of the Employee's rights, titles and
interests, if any, in and to all Developments and all related patents, patent
applications, copyrights and copyright applications. However, this Section 10.3
shall not apply to Developments which (i) do not relate to the present or
planned business or research and development of the Corporation and (ii) are
made and conceived by the Employee: (A) at a time other than during normal
working hours, (B) not on the Corporation's premises and (C) not using the
Corporation's tools, devices, equipment or proprietary information. Employee
understands that to the extent that the terms of this Agreement shall be
construed in accordance with the laws of any state which precludes a requirement
in an employee's agreement to assign certain classes of inventions made by an
employee, this Section 10.3 shall be interpreted not to apply to any invention
which a court rules and/or the Corporation agrees falls within such class or
classes. Employee also agrees to waive all claims to moral and/or equitable
rights in any Developments.
10.4. Employee agrees to cooperate fully with the Corporation, both
during and after Employee's employment with the Corporation, with respect to the
procurement, maintenance and enforcement of copyrights, patents and other
intellectual property rights (both in the United States and foreign countries)
relating to Developments. Employee agrees that he will sign all papers,
including, without limitation, copyright applications, patent applications,
declarations, oaths, formal assignments, assignments of priority rights, and
powers of attorney, which the Corporation may deem necessary or desirable in
order to protect its rights and interests in any Development. Employee further
agrees that if the Corporation is unable, after reasonable effort, to secure
Employee's signature on any such papers, any executive officer of the
Corporation shall be entitled to execute any such papers as Employee's agent and
attorney-in-fact, and Employee hereby irrevocably designates and appoints each
executive officer of the Corporation as Employee's agent and attorney-in-fact to
execute any such papers on Employee's behalf, and to take any and all actions as
the Corporation may deem necessary or desirable, in order to protect its rights
and interests in any Development, under the conditions described in this
sentence.
10.5. The provisions of this Section 10 shall survive Employee's
employment hereunder.
Section 11. Covenant Not To Compete.
11.1. Employee recognizes that the services to be performed by him
hereunder are special, unique and extraordinary. The parties confirm that it is
reasonably necessary for the protection of the Corporation that Employee agrees,
and, accordingly, Employee does hereby agree, that he will not, directly or
indirectly, in the Territory, as hereinafter defined, at any time during the
Restricted Period, as hereinafter defined:
9
(i) engage in the Business for his account or render any
services which constitute engaging in the Business, in any
capacity to any entity; or become interested in any entity
engaged in the Business either on his own behalf or as an
officer, director, stockholder, partner, principal,
consultant, associate, employee, owner, agent, creditor,
independent contractor, or co-venturer of any third party or
in any other relationship or capacity; or
(ii) employ or engage, or cause to authorize, directly
or indirectly, to be employed or engaged, for or on behalf of
himself or any third party, any employee, representative or
agent of the Corporation; or
(iii) solicit, directly or indirectly, on behalf of
himself or any third party, any client or vendor, for services
competitive with the Business, of the Corporation and its
affiliates; or
(iv) have an interest as an owner, lender, independent
contractor, co-venturer, partner, participant, associate or in
any other capacity, render services to or participate in the
affairs of, any business which is competitive with, or
substantially similar to, the Business of the Corporation and
its affiliates as presently conducted and as may be conducted
by the Corporation during the Restricted Period.
11.2. If any of the restrictions contained in this Section 11 shall
be deemed to be unenforceable by reason of the extent, duration or geographical
scope thereof, or otherwise, then after such restrictions have been reduced so
as to be enforceable, in its reduced form this Section shall then be enforceable
in the manner contemplated hereby.
11.3. This Section 11 shall not be construed to prevent Employee
from owning, directly or indirectly, in the aggregate, an amount not exceeding
two (2%) percent of the issued and outstanding voting securities of any class of
any corporation deemed to be competitive with the Corporation whose voting
capital stock is traded on a national securities exchange or in the
over-the-counter market.
11.4. Notwithstanding anything to the contrary set forth in this
Section 11. (i) the Employee shall not be prohibited from rendering services as
a full time employee for news organizations; (ii) the Employee may render
services for an entity whose primary function is journalism; (iii) the Employee
may render services for the internal public relations department of any
corporation or entity who performs services for only that corporation or its
affiliates, including parent corporations, subsidiaries, and joint ventures;
and/or (iv) the Employee may provide services for a public relations agency
directly serving that agency's clients. Notwithstanding the prior sentence,
however, the Employee may not, render services, directly or indirectly, for any
organization, department, or affiliate of such news organizations, corporate
public relations departments, or public relations agencies, which has a division
or affiliate whose primary purpose is to provide services substantially similar
to, or competitive with the Business and which services represent at least 25%
of the organization's revenue, other than the entities listed in Exhibit C or
their successor.
10
11.5. The term "Restricted Period", as used in this Section 11,
shall mean (i) the term of this Agreement plus two (2) years; (ii) in the event
of a termination without cause, the term of this Agreement plus one (1) year
from the date of termination; or in the event of a Change in Control
Termination, the term of this Agreement. Employee acknowledges that the
Corporation markets its Business worldwide and therefore, the term "Territory"
as used herein shall mean the entire world.
11.6. The provisions of this Section 11 shall survive the
termination of Employee's employment hereunder and until the end of the
Restricted Period.
Section 12. Rights and Remedies Upon Breach of Sections 10 or 11.
12.1. Return of Benefits. If the Employee breaches, or threatens to
commit a breach of, any of the provisions of Sections 10 or 11 (the "Restrictive
Covenants"), the Corporation shall have the right and remedy to require the
Employee to account for and pay over to the Corporation all compensation,
profits, monies, accruals, increments or other benefits (collectively,
"Benefits") derived or received by him as the result of any transactions
constituting a breach of the Restrictive Covenants, and the Employee shall
account for and pay over such Benefits to the Corporation. In addition, if the
Employee breaches or threatens to commit a breach of any of the Restrictive
Covenants, (i) the Employee's unvested stock options shall immediately lapse and
(ii) the Corporation shall have the right to purchase from the Employee the
Employee's vested stock options for the book value of the shares of Common Stock
underlying such vested options less the exercise price of such vested options.
The Corporation may set off any amounts due to the Corporation under this
Section 12.1 against any amounts owed to the Employee by the Corporation.
12.2. Injunctive Relief. Employee acknowledges that the services to
be rendered under the provisions of this Agreement are of a special, unique and
extraordinary character and that it would be difficult or impossible to replace
such services. Accordingly, Employee agrees that any breach or threatened breach
by him of Sections 10 or 11 of this Agreement shall entitle the Corporation, in
addition to all other legal remedies available to it, to apply to any court of
competent jurisdiction to enjoin such breach or threatened breach without
posting a bond or showing special damages. The parties understand and intend
that each restriction agreed to by Employee hereinabove shall be construed as
separable and divisible from every other restriction, that the unenforceability
of any restriction shall not limit the enforceability, in whole or in part, of
any other restriction, and that one or more of all of such restrictions may be
enforced in whole or in part as the circumstances warrant. In the event that any
restriction in this Agreement is more restrictive than permitted by law in the
jurisdiction in which the Corporation seeks enforcement thereof, such
restriction shall be limited to the extent permitted by law.
Section 13. Miscellaneous.
13.1. Assignment. The Employee may not assign or delegate any of his
rights or duties under this Agreement.
11
13.2. Resignations. In the event Employee's employment is terminated
for any reason whatsoever, Employee shall immediately resign as an officer of
the Corporation, its subsidiaries and affiliates.
13.3. Entire Agreement. This Agreement constitutes and embodies the
full and complete understanding and agreement of the parties with respect to the
Employee's employment by the Corporation, supersedes all prior understandings
and agreements, including employment agreements, non-compete agreements and
confidentiality agreements, if any, whether oral or written, between the
Employee and the Corporation and shall not be amended, modified or changed
except by an instrument in writing executed by the party to be charged. The
invalidity or partial invalidity of one or more provisions of this Agreement
shall not invalidate any other provision of this Agreement. No waiver by either
party of any provision or condition to be performed shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or any prior or
subsequent time.
13.4. Binding Effect. This Agreement shall inure to the benefit of,
be binding upon and enforceable against, the parties hereto and their respective
successors and permitted assigns.
13.5. Captions. The captions contained in this Agreement are for
convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
13.6. Notices. All notices, requests, demands and other
communications required or permitted to be given hereunder shall be in writing
and shall be deemed to have been duly given when personally delivered or sent by
certified mail, postage prepaid, or overnight delivery to the party at the
address set forth above or to such other address as either party may hereafter
give notice of in accordance with the provisions hereof.
13.7. Governing Law. This Agreement shall be governed by and
interpreted under the laws of the State of New York applicable to contracts made
and to be performed therein without giving effect to the principles of conflict
of laws thereof. Except in respect of any action commenced by a third party in
another jurisdiction, the parties hereto agree that any legal suit, action, or
proceeding against them arising out of or relating to this Agreement shall be
brought exclusively in the United States Federal Courts or New York County
Supreme Court, in the State of New York. The parties hereto hereby accept the
jurisdictions of such courts for the purpose of any such action or proceeding
and agree that venue for any action or proceeding brought in the State of New
York shall lie in the Southern District of New York or Supreme Court, New York
County, as the case may be. Each of the parties hereto hereby irrevocably
consents to the service of process in any action or proceeding in such courts by
the mailing thereof by United States registered or certified mail postage
prepaid at its address set forth herein.
13.8. Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
12
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date set forth above.
MEDIALINK WORLDWIDE INCORPORATED
By
----------------------------------------
J. Xxxxxx XxXxxxxxx
Executive Vice President
-------------------------------------------
Xxxxxxx X. Xxxxxxxx
13
