Employment Agreement - Symposium Corp. and Richard Kaufman
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of May 1, 2000 by and between SYMPOSIUM
CORPORATION, a Delaware corporation ("Employer") and RICHARD KAUFMAN
("Executive").
BACKGROUND
Employer desires 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 Pennsylvania, 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.
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"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.
"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,
2002.
"Year" means Year 2001, 2002 or 2003.
"Year 2000" means the eight months ending December 31, 2000.
"Year 2001" means the twelve months ending December 31, 2001.
"Year 2002" means the twelve months ending December 31, 2002.
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, 2000 and shall continue until December 31, 2002. If
Employer chooses not to extend this Agreement
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beyond December 31, 2002, Employer shall pay Executive a severance payment of
$200,000, to be paid in 12 equal monthly installments beginning on January 1,
2003.
4. Position and Duties; Representations and Warranties.
4.1 Service With Employer. Executive shall be
Employer's President and Chief Operating Officer. During the term of this
Agreement, Executive agrees to perform all duties consistent with his position
as President and Chief Operating Officer of Employer. Executive shall have
general management and control of the day to day business, affairs and
property of Employer in the ordinary course of its business with all such
powers with respect to such general 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.
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
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(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 (i) $330,000 during Year 2000; (ii) $330,000 during Year
2001; and (iii) $350,000 during Year 2002. 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) Executive shall receive a bonus of $50,000
for entering into this Agreement, to be paid on or before August 15, 2000.
(b) Executive shall be entitled to a
bonus for each Year. Executive's bonus for Year 2000 shall be $50,000, to be
paid by Employer to Executive as follows: $25,000 on September 1, 2000 and
$25,000 on December 1, 2000. Executive's annual bonuses for Years 2001 and
2002 shall be a minimum each year of $100,000 and a maximum of $200,000 and
$260,000, respectively. The minimum bonuses shall be paid quarterly on the
last day of each calendar quarter during each such Year and the additional
bonuses (if any) of up to $25,000 and $40,000, respectively, for each quarter
would be paid for each fiscal quarter during Years 2001 and 2002 (the actual
amounts to depend upon Employer's achieving the applicable corporate quarterly
EBITDA goals set by Employer's Board of Directors from time to time during
each of such Years), with any such bonuses to be paid by Employer to Executive
quarterly in arrears within five (5) days after the filing of the quarterly
and annual periodic reports 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
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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.
5.6 Automobile Expenses. Executive shall be reimbursed for
80% of his monthly automobile lease or purchase payments and other expenses
incidental to the operation of such automobile, subject to a maximum
reimbursement of $1,500 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.
5.8 Stock Options. Subject to and promptly after shareholder
approval of Employer's Year 2000 Stock Option Plan, Employer will grant to
Executive 600,000 Options having an exercise price of $2.00 per share and a
three year [quarterly] vesting schedule.
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 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.
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"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):
(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
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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.
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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.
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.
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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 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.
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(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.
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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.
(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;
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(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 nonmonetary 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
President and Chief Operating 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.
(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
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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
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<PAGE> 14
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 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.
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<PAGE> 15
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 aEmployernst 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.
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.
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<PAGE> 16
9.9 Attorneys' Fees. In the event that any party hereto
brings suit aEmployernst 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:
Symposium Corporation
410 Park Avenue, Suite 830
New York, NY 10022-4407
Attn: Ronald Altbach, Chairman
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.
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<PAGE> 17
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, as of the day and year first above written.
SYMPOSIUM CORPORATION
By:
--------------------------
WITNESS:
------------------------- ------------------------------
RICHARD KAUFMAN
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