Employment Agreement - Cross Media Marketing Corp. and Ronald Altbach
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of May 1, 2001 by and between Cross Media
Marketing Corporation, a Delaware corporation ("Employer") and Ronald Altbach
("Executive").
BACKGROUND
Employer desires to continue to employ Executive on the terms and subject to the
conditions set forth in this Agreement, and Executive desires to be employed by
Employer on such terms and subject to such conditions.
NOW, THEREFORE, in consideration of the premises, the respective
covenants and commitments of the parties hereto set forth in this Agreement and
for other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following capitalized
terms shall have the meanings respectively assigned to them below, which
meanings shall be applicable equally to the singular and plural forms of the
terms so defined.
"Board of Directors" shall mean the then current members of the Board of
Directors of Employer.
"Business Day" shall mean any day during which Employer is open for
business in New York City, other than any Saturday, Sunday or legal holiday.
"Cause" means Executive's willful misconduct or gross negligence in the
performance of his duties under this Agreement, his willful violation of the
provisions of this Agreement which results in material injury to Employer, or
his commission of any willful act which is materially inimical to Employer's
business or interests. No act or failure to act on Executive's part shall be
considered "willful" unless done, or omitted to be done, by him not in good
faith and without reasonable belief that his action or omission was in the best
interests of the Employer. Executive shall not be deemed to have been terminated
for Cause unless and until there shall have been delivered to him a notice of
termination together with a copy of a resolution, duly adopted by the Board of
Directors at a meeting called and held for that purpose (after reasonable notice
to Executive of the meeting and the particulars of the grounds for termination
and an opportunity for him, together with his counsel, to be heard before the
Board of Directors), finding that, in the good faith opinion of the Board of
Directors based upon clear and convincing evidence, Executive was guilty of
conduct constituting Cause for termination and specifying the particulars
thereof in detail. Executive's attendance or non-attendance at any such meeting
of the Board of Directors shall in no way prejudice Executive's rights hereunder
or to submit such decision to judicial review.
"Change of Control" shall be deemed to have occurred if as the result of
any cash tender or exchange offer, merger or other business combination, sale of
assets, sale of stock or other ownership interests, or contested election, or
any combination of the foregoing transactions ("Transaction"), either (i) all or
any substantial part of the assets or business of Employer and its Subsidiaries
is transferred to any Person that is not a Subsidiary of Employer or (ii) the
persons who were directors of Employer before the Transaction shall cease to
constitute a majority of its Board of Directors.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor thereto.
"Expenses" shall mean all expenses to be paid by Employer on behalf of
Executive or for which Executive is entitled to be reimbursed under Section 5
herein (including without limitation Sections 5.4 and 5.6).
"Options" shall mean stock options to purchase shares of Employer's
common stock.
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"Person" means an individual, corporation, partnership, estate, limited
liability company, association, cooperative, joint venture, trust,
unincorporated organization, or a government or any agency, branch or political
subdivision thereof.
"Subsidiary" or "Subsidiaries" means any Person, 50% or more of the
outstanding voting power of which shall at the time be owned by Employer or by
one or more Subsidiaries, or any other Person, 50% or more of the equity of
which shall at the time be owned by Employer or by one or more Subsidiaries.
"Term" means the period from the date hereof through December 31, 2003.
"Year" means Year 2001, 2002 or 2003.
"Year 2001" means the eight months ending December 31, 2001.
"Year 2002" means the twelve months ending December 31, 2002.
"Year 2003" means the twelve months ending December 31, 2003.
2. Employment. Employer offers and Executive accepts employment and
agrees to perform services for Employer, for the period and upon the other terms
and subject to the conditions set forth in this Agreement.
3. Employment Term. Unless terminated at an earlier date in accordance
with Section 8 below, the term of Executive's employment hereunder shall
commence on May 1, 2001 and shall continue until December 31, 2003. If Employer
chooses not to extend this Agreement beyond December 31, 2003, Employer shall
pay Executive a severance payment of $425,000, to be paid in 12 equal monthly
installments beginning on January 1, 2004.
4. Position and Duties; Representations and Warranties.
4.1 Service With Employer. Executive shall be Employer's Chairman
and Chief Executive Officer. During the term of this Agreement, Executive agrees
to perform all duties consistent with his position as Chairman and Chief
Executive Officer of Employer. Executive shall have such management and control
of the business, affairs and property of Employer as are consistent with his
position, with all such powers with respect to such management and control as
may be reasonably incident to such responsibilities. Executive shall also serve
as a director of Employer and, at the request of the Board of Directors, as a
director of one or more subsidiaries of Employer; provided, however, that
Executive shall not be entitled to any additional compensation for serving in
such capacities.
4.2 Performance of Duties. Executive agrees to serve Employer
faithfully and to the best of his ability and to devote his full time, attention
and best efforts to the business and affairs of Employer during the term of this
Agreement. Executive hereby confirms that he is under no contractual commitments
inconsistent with his obligations set forth in this Agreement, and that during
the term of this Agreement, he will not render or perform services for any other
Person which are inconsistent with the provisions of this Agreement.
4.3 Representations and Warranties of Executive. Executive
represents and warrants to Employer that, as of the date hereof and throughout
the term of this Agreement:
(a) Executive is not and will not in any way whatsoever be
contractually restricted or prohibited from entering into this Agreement
and performing the services and obligations herein contained; and
(b) Executive's execution of this Agreement and his performance
of the services and obligations herein contained, do not and will not
constitute a default or an event that, with or without notice or lapse
of time or both, would be a default, breach or violation of any
agreement, contract, instrument or arrangement to which Executive is a
party or by which Executive is bound.
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4.4 Representations and Warranties of Employer. Employer
represents and warrants to Executive that, as of the date hereof and throughout
the term of this Agreement:
(a) It is not and will not in any way whatsoever be contractually
restricted or prohibited from entering into this Agreement and
performing its obligations herein contained; and
(b) Its execution of this Agreement, and its performance of its
obligations herein contained, do not and will not constitute a default
or an event that, with or without notice or lapse of time or both, would
be a default, breach or violation of any agreement, contract, instrument
or arrangement to which it is a party or by which it is bound.
4.5 Location. Executive shall be based at Employer's principal
executive offices, which offices shall never be more than 50 miles from New York
City, New York.
5. Compensation and Benefits.
5.1 Base Salary. Executive shall be entitled to a minimum annual
base salary ("Salary") of $425,000. The Salary shall be paid in accordance with
Employer's normal payment schedule for executive employees. The Salary shall be
pro-rated for any Year which is less than twelve months.
5.2 Bonuses. (a) In each Year Executive shall be entitled to
quarterly bonuses of a minimum of $25,000 and a maximum of $75,000. The actual
amounts of the quarterly bonuses in Year 2001 (which will only be payable with
respect to the last three fiscal quarters of such Year) will be based upon the
Employer' s EBITDA results and applicable bonus amounts for each quarter as set
forth on Exhibit A hereto, and in Years 2002 and 2003 will be based upon
Employer's achieving the applicable quarterly performance goals set by the Board
of Directors from time to time during each of such Years. All minimum quarterly
bonuses shall be paid on the last day of each fiscal quarter during each Year
and any additional quarterly bonuses shall be paid by Employer to Executive
quarterly in arrears within five (5) days after Employer's filing of the SEC
Form 10Q quarterly and SEC Form 10K annual periodic reports for each of such
Years.
(b) Executive may be entitled to an annual bonus for each Year as
follows: Executive's annual bonus for Year 2001 shall be $50,000 if Employer's
consolidated revenues during its year ending December 31, 2001 are at least $100
million; Executive' s annual bonus for Years 2002 and 2003 shall be in amounts
determined by the Board of Directors based upon Employer's achieving the annual
performance goals set by the Board of Directors from time to time during each of
such Years. The Year 2001 annual bonus, if payable, shall be paid on or before
January 31, 2002, and the other annual bonuses will be paid by Employer to
Executive within five (5) days after the Employer' s filing of its SEC 10-K
annual report required to be filed for each of such Years.
5.3 Other Benefits. Executive shall have the right to participate
in all Employer benefit plans which may be in effect for executive employees
from time to time, including, without limitation, group health and dental
insurance, group life insurance, disability insurance, and retirement, 401(K)
profit sharing and pension plans in accordance with the terms and conditions
thereof. If Employer does not have and maintain a long-term disability insurance
program satisfactory to Executive, Employer shall pay or reimburse Executive for
the annual premiums (not to exceed $5,000 per Year) on a disability income
insurance policy owned by and covering Executive.
5.4 Expenses. During the term of this Agreement, Employer shall
pay or reimburse Executive for all reasonable and necessary out-of-pocket
expenses incurred by Executive in the performance of his duties under this
Agreement, subject to the presentment by Executive of appropriate vouchers in
accordance with Employer's normal policies for expense verification.
5.5 Vacation. Executive shall be entitled to three weeks vacation
each Bonus Year during the term of this Agreement. Any vacation taken by
Executive shall be taken at such time as is reasonably convenient in
relationship to the needs of the business of Employer. Vacation time shall not
accrue beyond the Year in question; provided, however, that any vacation time
not taken during any Year due to constraints imposed by Employer's business
requirements shall accrue beyond the Year in question.
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5.6 Automobile Expenses. Executive shall be entitled to an
allowance for his monthly automobile lease or purchase payments and other
expenses incidental to the operation of such automobile, subject to a maximum
allowance of $2,000 per month (which maximum amount will increase by 5% on each
May 1 hereafter) and to his presentment of appropriate vouchers and
documentation in accordance with Employer's normal policies for expense and
business use verification.
5.7 Life Insurance. Employer shall provide Executive with
additional term life insurance coverage of $1,000,000, provided Executive can
pass a standard physical. Such coverage shall be provided by the same insurer as
provides the coverage under Employer's group life insurance plan, or another
carrier acceptable to Executive.
6. Restrictive Covenants.
6.1 Certain Definitions . For purposes of this Section 6, the
following terms shall have the following meanings:
"Competitive Activity" means any activity conducted in the
Restricted Area which competes with any substantial aspect or part of Employer's
business, whether as a proprietor, partner, shareholder, owner, member,
employer, employee, independent contractor, venturer or otherwise.
"Competitor" means any Person, other than Employer, which
at any time during the Restriction Period engages in any Competitive Activity.
"Confidential Information" means all information of or
relating to Employer, its business or practice, which is not generally known or
available to the public (whether or not in written or tangible form) including,
without limitation, customer lists, supplier lists, processes, know-how, trade
secrets, pricing policies and other confidential business information.
"Confidential Materials" means any and all documents,
records, reports, lists, notes, plans, materials, programs, software, disks,
diskettes, recordings, manuals, correspondence, memoranda, magnetic media or any
other tangible media (including, without limitation, copies or reproductions of
any of the foregoing) in which any Confidential Information may be contained.
"Employer" means Employer and its Subsidiaries, whether
now or in the future.
"Person" means an individual, proprietorship, partnership,
joint venture, corporation, limited liability company, association, trust,
estate, unincorporated organization, a government or any branch, subdivision,
department or agency thereof, or any other entity.
"Personnel" means any and all employees, contractors,
agents, consultants or other Persons rendering services to Employer for
compensation in any form, whether employed by or independent of Employer.
"Restricted Area" means the United States, Canada, and
their respective territories and possessions, except that the Restricted Area
shall be worldwide with respect to any Competitive Activity involving the
Internet, the World Wide Web, telemarketing, telephony or other electronic or
similar media.
"Restriction Period" means the period of time, commencing
on the date hereof and expiring two (2) years after the termination of
Employee's employment with Employer pursuant to this Agreement, voluntarily or
involuntarily, for any reason whatsoever, subject to extension pursuant to
Section 6.6 below.
6.2 Confidentiality.
(a) Confidential Information. Subject to Section 6.2(c):
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(1) Duty to Maintain Confidentiality. Employee shall
maintain in strict confidence and duly safeguard to the best of his ability any
and all Confidential Information.
(2) Covenant Not to Disclose, Use or Exploit. Employee
shall not, directly or indirectly, disclose, divulge or otherwise communicate to
anyone or use or otherwise exploit for the benefit of anyone, other than
Employer, any Confidential Information.
(3) Confidential Materials. All Confidential Information
and Confidential Materials are and shall remain the exclusive property of
Employer and no Confidential Materials may be copied or otherwise reproduced,
removed from the premises of Employer or entrusted to any Person (other than
Employer or the Personnel entitled to such materials) without prior written
permission from Employer.
(b) Survival of Covenants. Notwithstanding anything herein to the
contrary, the covenants set forth in this Section 6.2 shall survive the
termination of this Agreement and any other agreement among any or all of the
parties hereto (regardless of the reason for such termination), unless
terminated by a written instrument that expressly terminates by specific
reference the covenants set forth in this Section 6.2.
(c) Permitted Activities. If Employee receives a request or
demand for Confidential Information (whether pursuant to a discovery request,
subpoena or otherwise), Employee shall immediately give Employer written notice
thereof and shall exert his best efforts to resist disclosure, including,
without limitation, by fully cooperating and assisting Employer in whatever
efforts it may make to resist or limit disclosure or to obtain a protective
order or other appropriate remedy to limit or prohibit further disclosure or use
of such Confidential Information. If Employee complies with the preceding
sentence but nonetheless becomes legally compelled to disclose Confidential
Information, Employee shall disclose only that portion of the Confidential
Information that he is legally compelled to disclose.
6.3 Covenant not to Compete . During the Restriction Period,
Employee shall not, directly or indirectly, whether as a sole practitioner,
owner, partner, shareholder, investor, employee, employer, venturer, independent
contractor, consultant or other participant, (i) own, manage, invest in or
acquire any economic stake or interest in any Person involved in a Competitive
Activity, (ii) derive economic benefit from or with respect to any Competitive
Activity or (iii) otherwise engage or participate in any manner whatsoever in
any Competitive Activity; provided, however, this Section 6.3 shall not restrict
Employee from owning less than 2% of the publicly traded debt or equity
securities issued by a corporation or other entity or from having any other
passive investment that creates no conflict of loyalty or interest with any duty
owed to Employer. Employee shall be deemed to have derived economic benefit in
violation of this Section 6.3 if, among other things, any of his compensation or
income is in any way related to any Competitive Activity conducted by any
Person. Further, during the Restriction Period Employee shall not directly or
indirectly advance, cooperate in or help or aid any Competitor in the conduct of
any Competitive Activity.
6.4 Covenant not to Interfere. During the Restriction Period,
Employee shall not, directly or indirectly, recruit, solicit or otherwise induce
or influence any Personnel of Employer to discontinue, reduce the extent of,
discourage the development of or otherwise harm such Personnel's relationship or
commitment to Employer. Conduct prohibited under this Section 6.4 shall include,
without limitation, employing, seeking to employ or causing, aiding, inducing or
influencing a Competitor to employ or seek to employ any Personnel of Employer.
6.5 Equitable Relief. Each of the parties acknowledges that the
provisions and restrictions of this Section 6 are reasonable and necessary for
the protection of the legitimate interests of Employer. Each of the parties
further acknowledges that the provisions and restrictions of this Section 6 are
unique and that any breach or threatened breach of any of such provisions or
restrictions will provide Employer with no adequate remedy at law, and the
result will be irreparable harm to Employer. Therefore, the parties hereto agree
that upon a breach or threatened breach of the provisions or restrictions of
this Section 6, Employer shall be entitled, in addition to any other rights and
remedies which may be available to it, to institute and maintain proceedings at
law or in equity, to recover damages, to obtain an equitable accounting of all
earnings, profits or other benefits resulting from such breach or threatened
breach and to obtain specific performance or a temporary and permanent
injunction.
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6.6 Full Restriction Period. If Employee violates any restrictive
covenant contained herein and Employer institutes action for equitable relief,
Employer, as a result of the time involved in obtaining such relief, shall not
be deprived of the benefit of the full Restriction Period. Accordingly, the
Restriction Period shall be deemed to have the duration specified in Section
6.1, computed from and commencing on the date on which relief is granted by a
final order from which there is no appeal, but reduced, if applicable, by the
length of time between the date the Restriction Period commenced and the date of
the first violation of any restrictive covenant by Employee.
6.7 Equitable Accounting. Employer shall have the right to demand
and receive equitable accounting with respect to any consideration received by
Employee in connection with activities in breach of the restrictive covenants
herein, and Employer shall be entitled to payment from Employee of such
consideration on demand.
6.8 Prior Breaches. Neither the expiration of the Restriction
Period nor the termination of the status of any Customer or Personnel as such
(whether or not due to a breach hereof by Employee) shall preclude, limit or
otherwise affect the rights and remedies of Employer against Employee based upon
any breach hereof during the Restriction Period or before such status of
Customer or Personnel terminated.
6.9 Noncircumvention of Covenants. Employee acknowledges and
agrees that, for purposes of this Agreement, an action shall be considered to
have been taken by Employee "indirectly" if taken by or through (a) any member
of his family (whether a close or distant relation by blood, marriage or
adoption), (b) any Person owned or controlled, solely or with others, directly
or "indirectly" by Employee or a member of his family, (c) any Person of which
he is an owner, partner, employer, employee, trustee, independent contractor or
agent, (d) any employees, partners, owners or independent contractors of any
such Person or (e) any other one or more representatives or intermediaries, it
being the intention of the parties that Employee shall not directly or
indirectly circumvent any restrictive covenant contained herein or the intent
thereof.
6.10 Notice of Restrictions. During the Restriction Period,
Employee shall notify each prospective employer, partner or co-venturer of the
restrictions contained in this Agreement. Employer is hereby authorized to
contact any of such Persons for the purpose of providing notice of such
restrictions.
6.11 Reduction of Restrictions by Court Action. Each of the
provisions hereof including, without limitation, the periods of time, geographic
areas and types and scopes of duties of, and restrictions on the activities of,
the parties hereto specified herein are and are intended to be divisible, and if
any portion thereof (including any sentence, clause or word) shall be held
contrary to law or invalid or unenforceable in any respect in any jurisdiction,
or as to one or more periods of time, areas or business activities or any part
thereof, the remaining provisions shall not be affected but shall remain in full
force and effect, and any such invalid or unenforceable provision shall be
deemed, without further action on the part of any party hereto or other Person,
modified and amended to the minimum extent necessary to render the same valid
and enforceable in such jurisdiction.
6.12 Fairness of Restrictions. Employee acknowledges and agrees
that (a) compliance with the restrictive covenants set forth herein would not
prevent him from earning a living that involves his training and skills without
relocating, but only from engaging in unfair competition with, misappropriating
a corporate opportunity of, or otherwise unfairly harming Employer and (b) the
restrictive covenants set forth herein are intended to provide a minimum level
of protection necessary to protect the legitimate interests of Employer. In
addition, the parties acknowledge that nothing herein is intended to or shall,
limit, replace or otherwise affect any other rights or remedies at law or in
equity for protection against unfair competition with, misappropriation of
corporate opportunities of, disclosure of confidential and proprietary
information of, or defamation of Employer, or for protection of any other rights
or interest of Employer.
7. Indemnification.
7.1 Generally.
(a) Employer shall indemnify and hold harmless Executive to the
fullest extent lawful from and against, and Executive shall have no liability to
the Employer or its owners, parents, creditors (past, present or future) or
security holders for, any and all Losses, Expenses and Claims related to or
arising out of an Indemnifiable
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Event except that no indemnification shall be made in respect of any Claims,
Losses or Expenses arising out of an otherwise Indemnifiable Event as to which
Executive's actions or conduct shall have finally been adjudicated to constitute
gross negligence or willful misconduct. The terms "Expenses", "Claims", "Losses"
and "Indemnifiable Event" shall have the meanings given them in Section 7.7
below.
(b) Employer shall not settle any pending or threatened Claim
related to or arising out of an Indemnifiable Event (whether or not Executive is
a party to such Claim) unless such settlement includes a provision
unconditionally releasing Executive from and holding Executive harmless from and
against any and all Losses and Expenses in respect of all Claims by any Person
related to or arising out of such Indemnifiable Event.
(c) Employer shall promptly advance to Executive all Expenses as
they are incurred by Executive in connection with investigating, preparing or
defending, or providing evidence in, any pending or threatened Claim in respect
of which indemnification may be sought hereunder (whether or not Executive is a
party to such Claim) or in enforcing this Agreement. If Executive makes a claim
hereunder for payment (or advancement) of Expenses, such Expenses shall be paid
(or advanced) promptly even if Employer reserves the right to obtain a refund
thereof to the extent that such Expenses were incurred in connection with a
Loss, Expense or Claim as to which there is a final judicial determination that
Executive is not entitled to indemnification pursuant to this Agreement.
7.2 Indemnification for Additional Expenses. Employer shall
indemnify Executive against and reimburse for and advance to Executive any and
all Expenses that are incurred by Executive in connection with any Claim
asserted against or action brought by Executive for (a) indemnification of
Expenses by Employer under this Agreement or any other agreement or provision of
Employer's Certificate of Incorporation or By-laws now or hereafter in effect
relating to Claims for Indemnifiable Events or (b) recovery under any directors'
and officers' liability insurance policies.
7.3 Partial Indemnity. If Executive is entitled to
indemnification for a portion (but not all) of the Expenses and Losses relating
to a Claim, Employer shall indemnify Executive for such portion. To the extent
Executive has been successful (in whole or in part) on the merits or otherwise
in defense of any Claim relating to an Indemnifiable Event or in defense of any
issue or matter therein, Executive shall be indemnified against all Expenses
incurred in connection therewith.
7.4 No Presumption. The termination of any Claim by judgment,
order, settlement, conviction or upon a plea of nolo contendere, or its
equivalent, shall not, of itself, create a presumption that Executive is not
entitled to indemnification hereunder.
7.5 Non-exclusivity. The rights of Executive hereunder shall be
in addition to any and all other rights Executive may have under Employer's
By-laws or Certificate of Incorporation, any vote by Employer's shareholders or
disinterested directors, or applicable law. Subject to the provisions of Section
7.1(a) hereof, to the extent that a change in applicable law permits or provides
greater indemnification than is afforded under Employer's By-laws or Certificate
of Incorporation and this Agreement, Executive shall enjoy by this Agreement the
greater benefits so afforded by that change.
7.6 Liability Insurance. If and to the extent that Employer from
time to time maintains an insurance policy or policies providing directors' and
officers' liability insurance (a "D&O Policy"), Executive shall be covered by
such policy or policies, in accordance with its or their terms, to the maximum
extent of the coverage available under such policy or policies for any officer
or director of Employer. If Employer fails or is unable to obtain or maintain a
D&O Policy providing at least $5 Million of aggregate coverage, Executive shall
have the right to terminate his employment and the provisions of Section 8.2(d)
(and not 8.2(b)) shall apply to such termination.
7.7 Defined Terms.
(a) "Claims": any threatened, asserted, pending or completed
action (including shareholder actions), suit or proceeding, whether civil,
criminal, administrative or investigative, or any inquiry or investigation
(including discovery), whether conducted by Employer or any other Person, that
might lead or is threatened to lead to the institution of any such action, suit
or proceeding.
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(b) "Expenses": all costs, expenses (including attorneys',
advisors' and expert witnesses' fees and expenses) and obligations paid or
incurred in connection with investigating, defending, being a witness in or
participating in (including on appeal), or preparing to defend, be a witness in
or participate in any Claim.
(c) "Indemnifiable Event": any omission, event or occurrence
related to or in any way connected with or arising out of the fact that
Executive is or was a director, officer, employee, agent or fiduciary of
Employer, or is or was serving at the request of Employer as a director,
officer, employee, trustee, agent or fiduciary of another corporation,
partnership, joint venture, employee benefit plan, trust or other enterprise, or
by reason of anything done or not done by Executive in any such capacity. For
purposes of this Agreement, Employer agrees that Executive's service on behalf
of or with respect to any parent, subsidiary or affiliate of Employer shall be
deemed to be at the request of Employer.
(d) "Losses": any judgments, liabilities, debts, excise taxes,
fines, penalties and amounts paid or required to be paid in settlement.
8. Termination.
8.1 Bases for Termination. The employment relationship created
under this Agreement between Employer and Executive shall terminate prior to the
expiration of the Term only upon the occurrence of any one of the following
events (provided, however, that the giving of notice provided for below shall
not create a presumption that the event has in fact occurred):
(a) The death of Executive;
(b) Executive shall become Permanently Disabled (for purposes of
this subsection (b), "Permanently Disabled" shall have the meaning as set forth
in Section 8.5 hereof);
(c) Immediately upon delivery to Executive by Employer of written
notice of termination for Cause;
(d) Thirty (30) days after delivery to Employer by Executive of
written notice of Executive's voluntary and unilateral termination of this
Agreement;
(e) Immediately upon delivery to Employer by Executive of written
notice of termination for breach of this Agreement by Employer, which notice
shall specify such alleged breach and may be given (i) 20 days after Employer
has failed to make any payment to Executive hereunder when due, provided the
payment has not been made within such 20 day period, (ii) after Employer has
failed to perform or has otherwise breached any non-monetary provision of this
Agreement, which failure or breach is not capable of being cured within 30 days
or (iii) after Employer has failed to perform or otherwise breached any
non-monetary provision of this Agreement, which failure or breach is capable of
being cured within 30 days and which failure or breach has not been cured within
30 days after notice of such failure or breach is given by Executive to
Employer. Employer's breach of this Agreement shall include (but shall not be
limited to) the following: (i) Employer's attempted assignment to Executive of
any duties inconsistent with his status of Chairman and Chief Executive Officer
of Employer or attempted adverse alteration in the nature or status of
Executive's responsibilities from those in effect upon commencement of his
employment hereunder; (ii) Employer's attempted reduction in Executive's Salary
or Bonus; (iii) the relocation of Employer's principal executive offices to a
location more than 50 miles from the location of such offices upon commencement
of his employment hereunder; (iv) Employer's requiring Executive to be based
anywhere other than Employer's principal executive offices; (v) the failure by
Employer to continue in effect any compensation plan in which Executive is
participating which is material to Executive's total compensation; (vi) the
failure by Employer to continue to provide Executive with benefits substantially
identical to those provided to Executive under this Agreement; or (vii) the
failure by Employer to obtain a satisfactory agreement from any successor to
assume and agree to perform this Agreement; or
(f) Immediately upon delivery to Employer by Executive of written
notice of termination after the occurrence of a Change of Control.
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(g) Immediately upon delivery to Executive by Employer of written
notice of termination without Cause.
Notwithstanding any termination of employment, Executive, in consideration of
his employment hereunder to the date of such termination and the payment by
Employer of the compensation payable hereunder, agrees to remain bound by the
provisions of Sections 6 and 8.3 hereof for the periods (except that if
termination is pursuant to clauses (e) or (g) above, the periods under Sections
6.3 and 6.4 above shall be limited to the remainder of the Term), geographic
area and scope specified therein, and Employer, in consideration of its receipt
of Executive's services hereunder to the date of such termination, agrees to
remain bound by the provisions of Section 8.2 hereof.
8.2 Effect of Termination.
(a) If Executive's employment is terminated pursuant to clauses
(a) or (b) of Section 8.1 hereof, Executive shall be entitled to receive his
Salary pro-rated through the effective date of such termination (which shall be
the date of death or the date Executive becomes Permanently Disabled), which
pro-rated Salary shall be paid to Executive within 15 days of such effective
date, and any Bonus payable for the Year during which such termination occurred
pro-rated through the effective date of such termination, which pro-rated Bonus
shall be paid on the next scheduled bonus payment date. Executive shall also be
entitled to reimbursement for all Expenses incurred by Executive prior to such
effective date, to the extent that such expenses have not been previously
reimbursed by Employer, which Expenses shall be paid to Executive within 15 days
after Executive submits to Employer appropriate documentation as required
hereunder.
(b) If Executive's employment is terminated pursuant to clauses
(c) or (d) of Section 8.1 hereof, Executive shall be entitled to receive his
Salary pro-rated through the effective date of such termination, which pro-rated
Salary shall be paid to Executive within 15 days of such effective date.
Executive shall also be entitled to reimbursement for Expenses incurred by
Executive prior to such effective date, to the extent that such expenses have
not been previously reimbursed by Employer), which Expenses shall be paid to
Executive within 15 days after Executive submits to Employer appropriate
documentation as required hereunder.
(c) If Executive's employment is terminated pursuant to clauses
(e) or (g) of Section 8.1 hereof, (i) Employer shall (x) continue to pay to
Executive his Salary in effect as of the date immediately prior to the effective
date of such termination, and shall continue to provide all payments and
benefits contemplated by Section 5 hereof, for the remainder of the Term, and
(y) reimburse Executive for all Expenses incurred prior to such effective date,
to the extent that such Expenses have not been previously reimbursed by
Employer, which Expenses shall be paid to Executive within 15 days after
Executive submits to Employer appropriate documentation as required hereunder,
(ii) all unvested Options shall immediately become fully vested and exercisable
and (iii) Executive shall be entitled to receive all guaranteed Bonuses payable
for the remaining Years, and (iv) Executive shall have all other rights and
remedies available to him at law or in equity arising out of Employer's breach.
(d) If Executive's employment is terminated pursuant to clause
(f) of Section 8.1 hereof, (i) Employer shall pay to Executive all payments
required under clause (a) of this Section 8.2, (ii) Employer shall also pay to
Executive, within 30 days after such termination, a severance payment of
$200,000 and (iii) all unvested Options shall immediately become fully vested
and exercisable.
8.3 Surrender of Records and Property. Upon termination of his
employment with Employer, Executive shall promptly deliver to Employer all
records, manuals, books, blank forms, documents, letters, memoranda, notes,
notebooks, reports, data, tables, calculations and copies thereof, which are the
property of -Employer or which relate in any way to the business, products,
practices or techniques of Employer, and all other property, trade secrets and
confidential information of Employer, including, without limitation, all
documents which in whole or in part contain any trade secrets or confidential
information of Employer, which in any of these cases are in his possession or
under his control.
8.4 No Mitigation. Executive shall not be required to mitigate
damages or the amount of any
<PAGE>
payment provided for under this Agreement by seeking other employment or
otherwise, nor shall the amount of any payment provided for under this Agreement
be reduced by any compensation earned by Executive as a result of employment by
another employer, or otherwise.
8.5 Permanently Disabled. For purposes of Section 8.1(b) hereof,
Executive shall be "Permanently Disabled" when Executive is unable to continue
his normal duties of employment, by reason of a medically determined physical or
mental impairment, for a continuous period of nineteen (19) consecutive weeks or
for any twenty-six (26) weeks within a fifty-two (52) week period (or such
longer period, not to exceed thirty-eight (38) weeks, if Executive's, disability
insurance policy requires a benefit waiting period longer than such six month
period).
9. Miscellaneous.
9.1 Governing Law. THIS AGREEMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER THE LAWS OF DELAWARE AND FOR ALL PURPOSES SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF SAID STATE APPLICABLE TO CONTRACTS MADE AND TO BE
PERFORMED WITHIN SAID STATE.
9.2 Entire Agreement. This Agreement (together with the exhibits
attached hereto, which hereby are incorporated by reference) contains the entire
agreement of the parties hereto relating to the employment of Executive by
Employer and the other matters discussed herein and supersedes all prior
agreements and understandings with respect to such subject matter, and the
parties hereto have made no agreements, representations or warranties relating
to the subject matter of this Agreement which are not set forth herein.
9.3 Withholding Taxes. Employer may withhold from any
compensation or other benefits payable under this Agreement all federal, state,
city or other taxes as shall be required pursuant to any law or governmental
regulation or ruling.
9.4 Supplements and Amendments. This Agreement may be
supplemented or amended only upon the written consent of each of the parties
hereto.
9.5 Assignment. Except as expressly provided below, this
Agreement shall not be assignable, in whole or in part, by either party without
the prior written consent of the other party. Employer may, without the prior
written consent of Executive, assign its rights and obligations under this
Agreement to any other corporation, firm or other business entity with or into
which Employer may merge or consolidate, or to which Employer may sell or
transfer all or substantially all of its assets, or of which 50% or more of the
equity investment and of the voting control is owned, directly or indirectly,
by, or is under common ownership with, Employer; provided, however, that such
assignment may be made without Executive's prior written consent only if (a)
such assignment has a valid business purpose and is not for the purpose of
avoiding Employer's obligations hereunder or Executive's realization of the
benefits of this Agreement and (b) the assignee expressly assumes in writing all
obligations and liabilities to Executive hereunder. Employer will cause any
purchaser of all or substantially all of the assets of Employer, by agreement in
form and substance reasonably satisfactory to Executive, to expressly assume and
agree to perform this Agreement in the same manner and to the same extent that
Employer would be required to perform it if no such purchase had taken place.
This Agreement shall be binding upon and inure to the benefit of Employer and
their respective successors and permitted assigns. This Agreement and all rights
of Executive hereunder shall inure to the benefit of and be enforceable by
Executive's heirs, personal or legal representatives and beneficiaries. If this
Agreement is terminated pursuant to clause (a) of Section 8.1 hereof, all
amounts payable pursuant to clause (a) of Section 8.2 hereof shall be paid to
Executive's designated beneficiaries or, if no such beneficiaries have been
designated, to Executive's estate.
9.6 No Waiver. No term or condition of this Agreement shall be
deemed to have been waived, nor shall there be any estoppel to enforce any
provisions of this Agreement, except by a statement in writing signed by the
party against whom enforcement of the waiver or estoppel is sought. Any written
waiver shall not be deemed a continuing waiver unless specifically stated, shall
operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future or as to any act
other than that specifically waived.
<PAGE>
9.7 Severability. The provisions of this Agreement are severable,
and if any one or more provisions may be determined to be judicially
unenforceable and/or invalid by a court of competent jurisdiction, in whole or
in part, the remaining provisions shall nevertheless be binding, enforceable and
in full force and effect.
9.8 Titles and Headings. The titles and headings of the various
Sections of this Agreement are intended solely for convenience of reference and
not intended for any purpose whatsoever to explain, modify or place any
construction upon any of the provisions hereof.
9.9 Attorneys' Fees. In the event that any party hereto brings
suit against the other party, based upon or arising out of a breach or violation
of this Agreement, each party hereto agrees that the party who is successful on
the merits, upon final adjudication from which no further appeal can be taken or
is taken within the time allowed by law, shall be entitled to recover his or its
reasonable attorneys, fees and expenses from the party which is not successful.
9.10 Injunctive Relief. Executive agrees that it would be
difficult to compensate Employer fully for damages for any violation of the
provisions of Sections 6 and 8.3 hereof. Accordingly, Executive specifically
agrees that Employer shall be entitled to temporary and permanent injunctive
relief to enforce such provisions of this Agreement. This provision with respect
to injunctive relief shall not, however, diminish the right of Employer to claim
and recover damages in addition to injunctive relief.
9.11 Notices. For the purpose of this Agreement, notices and all
other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when hand delivered (which shall include
personal delivery and delivery by courier, messenger or overnight delivery
service) or mailed by certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to Executive: At his home address in accordance with
the Employer's records.
If to Employer:
Cross Media Marketing Corporation
461 Fifth Avenue, 19th Floor
New York, NY 10019
Attn: Richard Kaufman, President
or to such other address of which either party gives notice to the other party
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
9.12 Counterparts. This Agreement may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but one
and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
CROSS MEDIA MARKETING CORPORATION
By: /s/ Richard Kaufman
-------------------------------
WITNESS:
/s/ Ronald Altbach
------------------------- -------------------------------
RONALD ALTBACH
<PAGE>
EXHIBIT A
Quarterly Quarterly Bonus
EBITDA (,000)
0 to $ 999 $25,000(1)
1,000 to 1,499 40,000
1,500 to 2,999 50,000
3,000 to 5,999 65,000
Over 6,000 75,000
(1) Guaranteed
(2) EBITDA calculation to be done on a consolidated basis and to
exclude any charges associated with changes to XMM capital
structure or dividends paid to preferred or common shareholders