Employment Agreement - LifeMinders Inc. and Jonathan B. Bulkeley
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), made and entered into this
16th day of March, 2001, by and between LifeMinders, Inc. (the "Company") and
Jonathan B. Bulkeley ("Executive").
1. Position.
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The Company hereby agrees to employ Executive to serve in the role of
Chairman and Chief Executive Officer of the Company upon the terms and
conditions set forth herein. Executive accepts such employment upon the terms
and conditions set forth herein, and further agrees to perform to the best of
his abilities the duties generally associated with his position, as well as such
other duties commensurate with his position as Chairman and Chief Executive
Officer as may be reasonably assigned by the Board of Directors of the Company
(the "Board"). Executive shall perform his duties diligently and faithfully and
shall devote his full business time and attention to such duties.
2. Term of Employment and Renewal.
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The term of Executive's employment under this Agreement will be effective
as of January 29, 2001 (the "Effective Date"). Subject to the provisions of
Section 10 of this Agreement, the term of Executive's employment hereunder shall
be for an initial term of three (3) years from the Effective Date (the "Initial
Term"). The Initial Term of this Agreement shall be automatically extended for
successive one (1) year periods (each a "Renewal Period") unless the Company or
Executive gives written notice to the other at least thirty (30) days prior to
the expiration of the Initial Term, or a Renewal Period, of such party's
election not to extend this Agreement. References herein to the "Term" shall
mean the Initial Term as it may be so extended by one or more Renewal Periods.
The last day of the Term is the "Expiration Date."
3. Compensation and Benefits.
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(a) Salary. Commencing on the Effective Date, the Company shall pay
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Executive a base salary at a gross annual rate of One Hundred Seventy-Five
Thousand Dollars ($175,000), payable in such installments as is the policy of
the Company (the "Salary"), but no less frequently than monthly.
(b) Benefits. Executive shall be entitled to participate in all employee
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benefit plans which the Company provides or may establish from time to time for
the benefit of its employees or executives, including, without limitation, group
life, medical, surgical, dental and other health insurance, short and long-term
disability, deferred compensation, profit-sharing, paid vacation and sick leave.
The Company may purchase one or more "key man" insurance policies on Executive's
life, each of which will be payable to and owned by the Company. The Company,
in its sole discretion, may select the amount and type of key man life insurance
purchased, and Executive will have no interest in any such policy. Executive
will cooperate with the Company in securing this key man insurance, by
submitting to all required medical examinations,
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supplying all information and executing all documents required in order for the
Company to secure the insurance.
(c) Stock Options. Upon approval by the Board or a committee thereof, the
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Company shall grant to Executive pursuant to the Company's 2000 Stock Incentive
Plan the following options to purchase shares (the "Option Shares") of the
Company's common stock at an exercise price equal to the fair market value of
the shares on the date of the grant, under the terms and conditions set forth in
the Company's standard Notice of Grant of Stock Option, Stock Option Agreement
and Addendum to Stock Option Agreement in the forms attached hereto, which shall
be provided to Executive on the date of the stock option grant provided for
herein:
i. Option to purchase Six Hundred Thousand (600,000) Option Shares
(the "CEO Option"). The CEO Option shall vest and become
exercisable, as long as Executive is actively serving as the
Chief Executive Officer of the Company, as follows: as to One
Hundred Fifty Thousand (150,000) of the Option Shares under the
CEO Option, on the date of grant; as to an additional One Hundred
Fifty Thousand (150,000) of the Option Shares under the CEO
Option, three months after the vesting commencement date; as to
the remaining Three Hundred Thousand (300,000) of the Option
Shares under the CEO Option, Nine Thousand Nine Hundred Ninety-
One (9,091) of such Option Shares per month starting four (4)
months after the vesting commencement date and continuing monthly
until all Option Shares under the CEO Option shall have vested.
ii. Option to purchase One Hundred Fifty Thousand (150,000) Option
Shares (the "Chairman Option"). The Chairman Option shall vest
and become exercisable, as long as Executive is actively serving
as the Chairman of the Company, as follows: as to Thirty-Seven
Thousand Five Hundred (37,500) of the Option Shares under the
Chairman Option, on the date of grant; as to the remaining One
Hundred Twelve Thousand Five Hundred (112,500) of the Option
Shares under the Chairman Option, Three Thousand One Hundred
Twenty-Five (3,125) of such Option Shares per month starting one
(1) month after the vesting commencement date and continuing
monthly until all Option Shares under the Chairman Option shall
have vested.
(d) Expenses. The Company shall pay or reimburse Executive for all
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reasonable out-of-pocket expenses actually incurred by him during the Term in
performing services hereunder, provided that Executive properly accounts for
such expenses in accordance with the Company's policies.
4. Confidentiality, Disclosure of Information.
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(a) Executive recognizes and acknowledges that Executive will have access
to Confidential Information (as defined below) relating to the business or
interests of the Company
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or of persons with whom the Company may have business relationships. Except as
permitted herein, Executive will not during the Term, or at any time thereafter,
use, disclose or permit to be known by any other person or entity, any
Confidential Information of the Company (except as required by applicable law or
in connection with the performance of Executive's duties and responsibilities
hereunder). The term "Confidential Information" means information relating to
the Company's business affairs, proprietary technology, trade secrets, patented
processes, research and development data, know-how, market studies and
forecasts, competitive analyses, pricing policies, employee lists, employment
agreements (other than this Agreement), personnel policies, the substance of
agreements with customers, suppliers and others, marketing arrangements,
customer lists, commercial arrangements, or any other information relating to
the Company's business that is not generally known to the public or to actual or
potential competitors of the Company (other than through a breach of this
Agreement). This obligation shall continue until such Confidential Information
becomes publicly available, other than pursuant to a breach of this Section 4 by
Executive, regardless of whether Executive continues to be employed by the
Company.
(b) It is further agreed and understood by and between the parties to this
Agreement that all "Company Materials," which include, but are not limited to,
computers, computer software, computer disks, tapes, printouts, source, HTML and
other code, flowcharts, schematics, designs, graphics, drawings, photographs,
charts, graphs, notebooks, customer lists, sound recordings, other tangible or
intangible manifestation of content, and all other documents whether printed,
typewritten, handwritten, electronic, or stored on computer disks, tapes, hard
drives, or any other tangible medium, as well as samples, prototypes, models,
products and the like, shall be the exclusive property of the Company and, upon
termination of Executive's employment with the Company, and/or upon the request
of the Company, all Company Materials, including copies thereof, as well as all
other Company property then in Executive's possession or control, shall be
returned to and left with the Company. In addition, Executive shall provide to
the Company, upon termination of employment and/or upon the request of the
Company, all information necessary for the use of any Company Materials, such as
passwords or codes.
5. Inventions Discovered by Executive.
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Executive shall promptly disclose to the Company any invention,
improvement, discovery, process, formula, or method or other intellectual
property, whether or not patentable or copyrightable (collectively,
"Inventions"), conceived or first reduced to practice by Executive, either alone
or jointly with others, while performing services hereunder (or, if based on any
Confidential Information, at any time during or after the Term), (a) which
pertain to any line of business activity of the Company, whether then conducted
or then being actively planned by the Company, with which Executive was or is
involved, (b) which is developed using time, material or facilities of the
Company, whether or not during working hours or on the Company premises, or (c)
which directly relates to any of Executive's work during the Term, whether or
not during normal working hours. Executive hereby assigns to the Company all of
Executive's right, title and interest in and to any such Inventions. During and
after the Term, Executive shall execute any documents necessary to perfect the
assignment of such Inventions to the Company and to enable the Company to apply
for, obtain and enforce patents, trademarks and copyrights in any
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and all countries on such Inventions, including, without limitation, the
execution of any instruments and the giving of evidence and testimony, without
further compensation beyond Executive's agreed compensation during the course of
Executive's employment. Without limiting the foregoing, Executive further
acknowledges that all original works of authorship by Executive, whether created
alone or jointly with others, related to Executive's employment with the Company
and which are protectable by copyright, are "works made for hire" within the
meaning of the United States Copyright Act, 17 U.S.C. (S) 101, as amended, and
the copyright of which shall be owned solely, completely and exclusively by the
Company. If any Invention is considered to be work not included in the
categories of work covered by the United States Copyright Act, 17 U.S.C. (S)
101, as amended, such work is hereby assigned or transferred completely and
exclusively to the Company. Executive hereby irrevocably designates counsel to
the Company as Executive's agent and attorney-in-fact to do all lawful acts
necessary to apply for and obtain patents and copyrights and to enforce the
Company's rights under this Section 5. This Section 5 shall survive the
termination of this Agreement. Any assignment of copyright hereunder includes
all rights of paternity, integrity, disclosure and withdrawal and any other
rights that may be known as or referred to as "moral rights" (collectively
"Moral Rights"). To the extent such Moral Rights cannot be assigned under
applicable law and to the extent the following is allowed by the laws in the
various countries where Moral Rights exist, Executive hereby waives such Moral
Rights and consents to any action of the Company that would violate such Moral
Rights in the absence of such consent. Executive agrees to confirm any such
waivers and consents from time to time as requested by the Company.
6. Reserved.
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7. Non-Disparagement.
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Executive hereby agrees that during the Term and thereafter he will not
make any statement that is disparaging about the Company, any of its officers,
directors, or shareholders, including, but not limited to, any statement that
disparages the products, services, finances, financial condition, capabilities
or other aspect of the business of the Company. Executive further agrees that
during the Term and thereafter he will not engage in any conduct that is
intended to inflict harm upon the professional or personal reputation of the
Company or any of its officers, directors, shareholders or employees.
8. Provisions Necessary and Reasonable.
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(a) Executive agrees that (i) the provisions of Sections 4, 5 and 7 of
this Agreement are necessary and reasonable to protect the Company's
Confidential Information, Inventions, and goodwill; (ii) in the event of any
breach of any of the covenants set forth herein, the Company would suffer
substantial irreparable harm and would not have an adequate remedy at law for
such breach. In recognition of the foregoing, Executive agrees that in the event
of a breach or threatened breach of any of these covenants, in addition to such
other remedies as the Company may have at law, without posting any bond or
security, the Company shall be entitled to seek and obtain equitable relief, in
the form of specific performance, and/or temporary, preliminary or permanent
injunctive relief, or any other equitable remedy which then may be available.
The
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seeking of such injunction or order shall not affect the Company's right to seek
and obtain damages or other equitable relief on account of any such actual or
threatened breach.
(b) If any of the covenants contained in Sections 4, 5 and 7 hereof, or
any part thereof, are hereafter construed to be invalid or unenforceable, the
same shall not affect the remainder of the covenant or covenants, which shall be
given full effect without regard to the invalid portions.
9. Representations Regarding Prior Work and Legal Obligations.
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(a) Executive represents that Executive has no agreement or other legal
obligation with any prior employer, or any other person or entity that restricts
Executive's ability to accept employment with, or to perform any function for,
the Company.
(b) Executive has been advised by the Company that at no time should
Executive divulge to or use for the benefit of the Company any trade secret or
confidential or proprietary information of any previous employer. Executive
expressly acknowledges that Executive has not divulged or used any such
information for the benefit of the Company.
(c) Executive acknowledges that Executive has not and will not
misappropriate any Invention that Executive played any part in creating while
working for any former employer.
(d) Executive acknowledges that the Company is basing important business
decisions on these representations, and affirms that all of the statements
included herein are true.
10. Termination.
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Notwithstanding the provisions of Section 2 of this Agreement, Executive's
employment hereunder may terminate under the following circumstances:
(a) Termination by the Company. The Company may terminate Executive's
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employment hereunder for any reason at any time upon one (1) month's written
notice to Executive. In the event of termination by the Company pursuant to this
subsection 10(c), the Company may elect to pay Executive during the notice
period (or for any remaining portion of that period) the Salary and benefits at
the rate of compensation Executive was receiving immediately before such notice
of termination was tendered in lieu of actual notice.
(b) Termination by Executive. Executive may terminate his employment
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hereunder for any reason at any time upon one (1) month's written notice to the
Company. In the event of termination by Executive pursuant to this subsection
10(b), the Company may elect to pay Executive during the notice period (or for
any remaining portion of that period) the Salary and benefits at the rate of
compensation Executive was receiving immediately before such notice of
termination was tendered in lieu of actual notice.
(c) Death. In the event of Executive's death during the Term of this
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Agreement, Executive's employment hereunder shall immediately and automatically
terminate, and the
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Company shall have no further obligation or duty to Executive or his estate or
beneficiaries other than for the Salary earned under this Agreement to the date
of termination and any payments or benefits due under Company policies or
benefit plans.
(d) Disability. The Company may terminate Executive's employment
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hereunder, upon written notice to Executive, in the event that Executive becomes
disabled during the Term through any condition of either a physical or
psychological nature and, as a result, is, with or without reasonable
accommodation, unable to perform the essential functions of the services
contemplated hereunder for (a) a period of ninety (90) consecutive days, or (b)
for shorter periods aggregating one hundred twenty (120) days during any twelve
(12) month period during the Term. Any such termination shall become effective
upon mailing or hand delivery of notice that the Company has elected its right
to terminate under this subsection 10(d), and the Company shall have no further
obligation or duty to Executive other than for salary earned under this
Agreement prior to the date of termination and any payments or benefits due
under Company policies or benefit plans.
(e) Effect of Non-Renewal. In the event that the Company gives notice of
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its election not to extend the Term of the Agreement for a Renewal Period
pursuant to Section 2 above, the Company shall continue to pay Executive full
compensation as defined in Section 3 of this Agreement from the date Executive
receives such notice through the Expiration Date. Executive shall not be
entitled to any additional compensation other than any payments or benefits due
under Company policies or benefit plans.
11. Choice of Law.
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The validity, interpretation and performance of this Agreement shall be
governed by, and construed in accordance with, the internal law of the
Commonwealth of Virginia, without giving effect to conflict of law principles.
Both parties agree that the exclusive venue for any action, demand, claim or
counterclaim relating to the terms and provisions of Sections 4, 5 and 7 of this
Agreement, or to their breach, shall be in the state or federal courts located
in Virginia and that such courts shall have personal jurisdiction over the
parties to this Agreement.
12. Miscellaneous.
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(a) Assignment. Executive acknowledges and agrees that the rights and
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obligations of the Company under this Agreement may be assigned by the Company
to any successors in interest. Executive further acknowledges and agrees that
this Agreement is personal to Executive and that Executive may not assign any
rights or obligations hereunder.
(b) Withholding. All salary and bonus payments required to be made by the
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Company to Executive under this Agreement shall be subject to withholding taxes,
social security and other payroll deductions in accordance with the Company's
policies applicable to employees of the Company at Executive's level.
(c) Entire Agreement. This Agreement sets forth the entire agreement
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between the parties and supersedes any prior communications, agreements and
understandings, written or oral, with respect to the terms and conditions of
Executive's employment.
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(d) Amendments. Any attempted modification of this Agreement will not be
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effective unless signed by an officer of the Company and Executive.
(e) Waiver of Breach. Executive understands that a breach of any provision
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of this Agreement may only be waived by an officer of the Company. The waiver by
the Company of a breach of any provision of this Agreement shall not operate or
be construed as a waiver of any subsequent breach.
(f) Severability. If any provision of this Agreement should, for any
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reason, be held invalid or unenforceable in any respect by a court of competent
jurisdiction, then the remainder of this Agreement, and the application of such
provision in circumstances other than those as to which it is so declared
invalid or unenforceable, shall not be affected thereby, and each such provision
of this Agreement shall be valid and enforceable to the fullest extent permitted
by law.
(g) Notices. Any notices, requests, demands and other communications
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provided for by this Agreement shall be in writing and shall be effective when
delivered by private messenger, private overnight mail service, or facsimile as
follows (or to such other address as either party shall designate by notice in
writing to the other in accordance herewith):
If to the Company:
13530 Dulles Technology Drive
Suite 500
Herndon, VA 20171
Attn: General Counsel
If to Executive:
______________________
______________________
______________________
(h) Survival. Executive and the Company agree that certain provisions of
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this Agreement shall survive the expiration or termination of this Agreement and
the termination of Executive's employment with the Company. Such provisions
shall be limited to those within this Agreement which, by their express and
implied terms, obligate either party to perform beyond the termination of
Executive's employment or termination of this Agreement.
(i) Disclosure and Confidentiality. Executive agrees to provide, and
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agrees that the Company similarly may provide in its discretion, a copy of the
covenants contained in this Agreement to any business or enterprise which the
Company may directly or indirectly own,
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manage, operate, finance, join, control or in which the Company participates in
the ownership, management, operation, financing or control, or with which the
Company may be connected or may become connected as an officer, director,
Executive, partner, principal, agent, representative, consultant or otherwise.
Executive also agrees that the Company may disclose a copy of this Agreement if
legally required to do so, and in connection with a partnering transaction or
financing, assuming that an appropriate confidentiality agreement is in place.
Executive further agrees not to disclose the existence or terms of this
Agreement to any person other than Executive's immediate family and legal,
financial or accounting professional.
(j) Arbitration of Disputes. Any controversy or claim arising out of this
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Agreement or any aspect of Executive's relationship with the Company including
the cessation thereof (other than disputes with respect to alleged violations of
the covenants contained in Sections 4, 5 or 7 hereof, and the Company's pursuit
of the remedies described in Section 8 hereof in connection therewith) shall be
resolved by arbitration in accordance with the then existing Employment Dispute
Resolution Rules of the American Arbitration Association, in Washington, D.C.,
and judgment upon the award rendered may be entered in any court having
jurisdiction thereof. The parties shall split equally the costs of arbitration,
except that each party shall pay its own attorneys' fees. The parties agree
that the award of the arbitrator shall be final and binding.
(k) Rights of Other Individuals. This Agreement confers rights solely on
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Executive and the Company. This Agreement is not a benefit plan and confers no
rights on any individual or entity other than the undersigned.
(l) Headings. The parties acknowledge that the headings in this Agreement
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are for convenience of reference only and shall not control or affect the
meaning or construction of this Agreement.
(m) Advice of Counsel. Executive and the Company hereby acknowledge that
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each party has had adequate opportunity to review this Agreement, to obtain the
advice of counsel with respect to this Agreement, and to reflect upon and
consider the terms and conditions of this Agreement. The parties further
acknowledge that each party fully understands the terms of this Agreement and
has voluntarily executed this Agreement. The Company shall pay the legal fees
and costs incurred by Executive in connection with the negotiation and
preparation of this Agreement, upon the presentation of invoices in appropriate
form.
IN WITNESS WHISEOF, the undersigned have duly executed this Agreement as of
the day and year set forth below.
EXECUTIVE LIFEMINDERS, INC.
/s/ Jonathan B. Bulkeley By: /s/ Allison Abraham
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JONATHAN B. BULKELEY
Title: President
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