Employment Agreement - Dice Inc. and Thomas M. Silver
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of July 9, 2001, is between Dice Inc., a Delaware
corporation (the "Company"), with its principal place of business at 3 Park
Avenue, New York, New York, and Thomas M. Silver, an individual residing at
(the "Employee").
In consideration of the Company securing the services of the Employee and
the Employee's undertaking employment with the Company, the Company and the
Employee hereby agree to be bound by and comply with the following terms and
conditions and agree as follows:
Section 1. At-Will Employment. Employee acknowledges and agrees that his
employment status is that of an employee-at-will and that Employee's employment
may be terminated by the Company or the Employee at any time with or without
cause, subject to the terms and conditions in the Addendum hereto.
Section 2. Compensation. In consideration of the services to be rendered
hereunder, the Employee shall be paid in accordance with the Addendum hereto.
Section 3. Employee Inventions and Ideas.
(a) The Employee will maintain current and adequate written records on the
development of, and disclose to the Company, all Inventions (as defined
herein). "Inventions" shall mean all ideas, potential marketing and sales
relationships, inventions, copyrightable expression, research, plans for
products or services, marketing plans, computer software (including, without
limitation, source code), computer programs, original works of authorship,
characters, know-how, trade secrets, information, data, developments,
discoveries, improvements, modifications, technology, algorithms and designs,
whether or not subject to patent or copyright protection, made, conceived,
expressed, developed, or actually or constructively reduced to practice by the
Employee solely or jointly with others during the term of the Employee's
employment with the Company, which refer to, are suggested by, or result from
any work which the Employee may do during his employment, or from any
information obtained from the Company or any affiliate of the Company.
(b) The Inventions shall be the exclusive property of the Company, and the
Employee acknowledges that all of said Inventions shall be considered as "work
made for hire" belonging to the Company. To the extent that any such
Inventions, under applicable law, may not be considered work made for hire by
the Employee for the Company, the Employee hereby agrees to assign and, upon
its creation, automatically and irrevocably assigns to the Company, without any
further consideration, all right, title and interest in and to such materials,
including, without limitation, any copyright, other intellectual property
rights, moral rights, all contract and licensing rights, and all claims and
causes of action of any kind with respect to such materials. The Company shall
have the exclusive right to use the Inventions, whether original or derivative,
for all purposes without additional compensation to the Employee. At the
Company's expense, the Employee will assist the Company in every proper way to
perfect the Company's rights in the Inventions and to protect the Inventions
throughout the world, including, without limitation, executing in favor of the
Company or any designee(s) of Company patent, copyright, and other applications
and assignments relating to the Inventions. The Employee agrees not to
challenge the validity of the ownership by the Company or its designee(s) in
the Inventions.
(c) Should the Company be unable to secure the Employee's signature on any
document necessary to apply for, prosecute, obtain, or enforce any patent,
copyright, or other right or protection relating to any Invention, whether due
to the Employee's mental or physical incapacity or any other cause, the
Employee hereby irrevocably designates and appoints the Company and each of its
duly authorized officers and agents as the Employee's agent and attorney in
fact, to act for and in the Employee's behalf and stead and to execute and file
any such document, and to do all other lawfully permitted acts to further the
prosecution, issuance, and enforcement of patents, copyrights, or other rights
or protections with the same force and effect as if executed and delivered by
the Employee.
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Section 4. Proprietary Information.
(a) The Employee will not disclose or use, at any time either during or
after the term of employment, except at the request of the Company or an
affiliate of the Company, any Confidential Information (as herein defined).
"Confidential Information" shall mean all Company proprietary information,
technical data, trade secrets, and know-how, including, without limitation,
research, product plans, customer lists, customer preferences, marketing plans
and strategies, software, development, inventions, discoveries, processes,
ideas, formulas, algorithms, technology, designs, drawings, business strategies
and financial data and information, including, but not limited to Inventions,
whether or not marked as "Confidential." "Confidential Information shall also
mean any and all information received by the Company from customers, vendors
and independent contractors of the Company or other third parties subject to a
duty to be kept confidential.
(b) The Employee hereby acknowledges and agrees that all personal property,
including, without limitation, all books, manuals, records, reports, notes,
contracts, lists, blueprints, and other documents, or materials, or copies
thereof, Confidential Information as defined in Section 4(a) above, and
equipment furnished to or prepared by the Employee in the course of or incident
to his employment, including, without limitation, records and any other
materials pertaining to Inventions, belong to the Company and shall be promptly
returned to the Company upon termination of employment. Following termination,
the Employee will not retain any written or other tangible or electronic
material containing any Confidential Information or information pertaining to
any Invention.
Section 5. Limited Agreement Not to Compete.
(a) While employed by the Company and for a period of nine (9) months after
the termination of the Employee's employment with the Company, the Employee
shall not, directly or indirectly, as an employee, employer, consultant, agent,
principal, partner, manager, stockholder, officer, director, or in any other
individual or representative capacity, engage or participate in any business
that is competitive with the business of the Company. Notwithstanding the
foregoing, the Employee may own less than two percent (2%) of any class of
stock or security of any corporation, which competes with the Company listed on
a national securities exchange.
(b) While employed by the Company and for a period of twelve (12) months
after the termination of the Employee's employment with the Company, the
Employee shall not, directly or indirectly, solicit for employment any person
who was employed by the Company at the time of the Employee's termination from
the Company.
Section 6. Company Resources. Other than incidental personal use, the
Employee may not use any Company equipment for personal purposes without
written permission from the Company. The Employee may not give access to the
Company's offices or files to any person not in the employ of the Company
without written permission of the Company.
Section 7. Post-Termination Period. Because of the difficulty of
establishing when any idea, process or invention is first conceived or
developed by the Employee, or whether it results from access to Confidential
Information or the Company's equipment, facilities, and data, the Employee
agrees that any idea, invention, research, plan for products or services,
marketing plan, computer software (including, without limitation, source code),
computer program, original work of authorship, character, know-how, trade
secret, information, data, developments, discoveries, technology, algorithm,
design, patent or copyright, or any improvement, rights, or claims relating to
the foregoing, shall be presumed to be an Invention if it is conceived,
developed, used, sold, exploited or reduced to practice by the Employee or with
the aid of the Employee within one (1) year after termination of employment.
The Employee can rebut the above presumption if he proves the idea, process or
invention (i) was first conceived or developed after termination of employment,
(ii) was conceived or developed entirely on the Employee's own time without
using the Company's equipment, supplies, facilities, personnel or Confidential
Information, and (iii) did not result from or is not derived directly or
indirectly, from any work performed by the Employee for the Company or from
work performed by another employee of the Company to which the Employee had
access.
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Section 8. Injunctive Relief. The Employee agrees that the remedy at law for
any breach of the provisions of Section 4, Section 4 or Section 5 of this
Agreement shall be inadequate, the Company will suffer immediate and
irreparable harm, and the Company shall be entitled to injunctive relief in
addition to any other remedy at law which the Company may have.
Section 9. Severability. In the event any of the provisions of this
Agreement shall be held by a court or other tribunal of competent jurisdiction
to be unenforceable, the other provisions of this Agreement shall remain in
full force and effect.
Section 10. Survival. Sections 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13
and the Addendum survive the termination of this Agreement.
Section 11. Representations and Warranties. The Employee represents and
warrants that the Employee is not under any obligation to any third party which
could interfere with the Employee's performance under this Agreement, and that
the Employee's performance of his obligations to the Company during the term of
his employment with the Company will not breach any agreement by which the
Employee is bound not to disclose any proprietary information including,
without limitation, that of former employers; provided that notwithstanding the
foregoing, in the event employee determines that an action which the Company
requests him to pursue would cause him to violate any such agreement, so
informs the Company, and the Company instructs him to proceed with such action,
Employees proceeding with such action shall not be deemed to be a violation of
this representation and warranty.
Section 12. Governing Law. The validity, interpretation, enforceability, and
performance of this Agreement shall be governed by and construed in accordance
with the laws of the State of New York without giving effect to its conflict of
law rules.
Section 13. General. This Agreement supersedes and replaces any existing
agreement between the Employee and the Company relating generally to the same
subject matter, and may be modified only in a writing signed by the parties
hereto. Failure to enforce any provision of the Agreement contains the entire
agreement between the parties with respect to the subject matter herein. The
Employee agrees that he will not assign, transfer, or otherwise dispose of,
whether voluntarily or involuntarily, or by operation of law, any rights or
obligations under this Agreement. Any purported assignment, transfer, or
disposition shall be null and void. Nothing contained in this Agreement shall
prevent the consolidation of the Company with, or its merger into, any other
corporation, or the sale by the Company of all or substantially all of its
properties or assets, or the assignment by the Company of this Agreement and
the performance of its obligations hereunder. Subject to the foregoing, this
Agreement shall be binding upon and shall inure to the benefit of the parties
and their respective heirs, legal representatives, successors, and permitted
assigns, and shall not benefit any person or entity other than those enumerated.
Section 14. Employee Acknowledgment. The Employee acknowledges (i) that he
has consulted with or has had the opportunity to consult with independent
counsel of his own choice concerning this Agreement and has advised to do so by
the Company, and (ii) that he has read and understands the Agreement, is fully
aware of its legal effect, and has entered into it freely based on his own
judgment.
AGREED TO BY:
DICE INC. THOMAS M. SILVER
SIGN:_________________________________ SIGN:________________________________
DATE:_________________________________ DATE:________________________________
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Addendum to Employment Agreement - Thomas M. Silver (Employee)
Section 1. Title and Job Description. The Employee shall be employed on a
full-time basis, as Senior Vice President, Marketing of the Company. In such
capacity, the Employee shall be responsible for the marketing operations of the
Company and any other responsibilities reasonably assigned by the Company from
time to time. The Employee shall report to the President and CEO of the Company.
Section 2. Compensation. In consideration of the services to be rendered
hereunder: the Employee shall be paid an annual base salary of $215,000 per
year (prorated for calendar year 2001) plus a bonus (prorated based on period
of service in year of hire) targeted at 50% of the Employee's annual base
salary. Employee will also receive a sign-on bonus of $10,000.
The Employee shall receive 100,000 stock options ("Stock Options") to be
granted on the administration date following the initial date of the Employee's
employment with the Company, made pursuant to the terms and conditions of
Dice's 1998 Stock Incentive Plan (the "Stock Option Plan") and option-granting
documents and subject to approval by the Board. The Stock Options shall vest
over four years, with twenty-five percent (25 %) vesting upon the first
anniversary of the grant and six and one-quarter percent (6 1/4 %) vesting
quarterly thereafter.
The Employee shall be eligible for all employee benefits under the Company's
benefit plans in effect from time to time, including health, life, dental,
vision, short-term disability, 401(k) Plan, and Employee Stock Purchase Plan.
The Employee shall be entitled to four weeks of vacation per year.
The Employee's compensation shall be reviewed on at least an annual basis.
Section 3. Severance. In lieu of any severance pay or severance benefits
otherwise payable to the Employee under any plan, policy, program or
arrangement of the Company or its subsidiaries, the following shall apply:
(a) If there is a Termination (as herein defined) of the Employee's
employment with the Company at any time prior to a "Change of Control" (as
defined herein) without "Cause" (as defined herein), the Employee shall be
entitled to receive a lump-sum severance payment equal to fifty percent
(50%) of his then current annual base salary.
(b) If there is a Termination of the Employee's Employment with the
Company following a Change of Control, the Employee shall be entitled to
receive a lump-sum severance payment equal to (i) one hundred percent (100%)
of his then current annual salary plus (ii) the amount of his then current
bonus target, and (iii) accelerated vesting with respect to one-hundred
percent (100%) of his Stock Options.
Section 4. Definitions. (a) For purposes of this Employment Agreement only,
a "Change of Control" of the Company shall be deemed to have occurred if at any
time on or after the date of the Employment Agreement one or more of the
following events shall have occurred:
(i) the direct or indirect acquisition by any person or related group of
persons (other than an acquisition from or by the Company or by a
Company-sponsored employee benefit plan or by a person that directly or
indirectly controls, is controlled by, or is under common control with, the
Company) of beneficial ownership (within the meaning of Rule 13d-3 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) of
securities possessing more than fifty percent (50%) of the total combined
voting power of the Company's outstanding securities; or
(ii) any stockholder-approved transfer or other disposition of all or
substantially all of the Company's assets; or
(iii) the Company adopts any plan of liquidation providing for the
distribution of all or substantially all of its assets; or
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(iv) the consummation by the Company of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all of
the assets of the Company or the acquisition of assets or stock of another
corporation (a "Business Combination"), in each case, unless, following such
Business Combination, (a) all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the outstanding
common stock and outstanding company voting securities immediately prior to
such Business Combination beneficially own, directly or indirectly, more
than 60% of, respectively, the then outstanding shares of common stock and
the combined voting power of the then outstanding voting securities entitled
to vote generally in the election of directors, as the case may be, of the
corporation resulting from such Business Combination (including, without
limitation, a corporation which as a result of such transaction owns the
Company or all or substantially all of the Company's assets either directly
or through one or more subsidiaries) in substantially the same proportions
as their ownership, immediately prior to such Business Combination of the
outstanding Company common stock and outstanding Company voting securities,
as the case may be, (b) no person (excluding any corporation resulting from
such Business Combination or any employee benefit plan (or related trust) of
the Company or such corporation resulting from such Business Combination)
beneficially owns, directly or indirectly, 20% or more of, respectively, the
then outstanding shares of common stock of the corporation resulting from
such Business Combination or the combined voting power of the then
outstanding voting securities of such corporation except to the extent that
such ownership existed prior to the Business Combination and (c) at least a
majority of the members of the board of directors of the corporation
resulting from such Business Combination were members of the incumbent board
at the time of the execution of the initial agreement, or of the action of
the board of directors, providing for such Business Combination; or
(v) a change in the composition of the Board over a period of thirty-six
(36) months or less such that a majority of the Board members (rounded up to
the next whole number) ceases, by reason of one or more contested elections
for Board membership, to be comprised of individuals who are continuing
directors.
(b) For purposes of this Employment Agreement only, "Cause" shall mean (i)
embezzlement by the Employee, (ii) misappropriation by the Employee of funds of
the Company, (iii) conviction of a felony, (iv) commission of any other act of
dishonesty which causes material economic harm to the Company, (v) acts of
fraud or deceit by the Employee which causes material economic harm to the
Company, (vi) material breach of any provision of the Employment Agreement by
the Employee, (vii) willful failure by the Employee to substantially perform
such Employee's duties hereunder, (viii) willful breach of fiduciary duty by
the Employee to the Company involving personal profit or (ix) significant
violation of Company policy of which the Employee is made aware (or such
Employee should reasonably be expected to be aware) or other contractual,
statutory or common law duties to the Company. No act, or failure to act on the
part of the Employee, shall be deemed willful unless it is done, or omitted to
be done, by the Employee in bad faith or without reasonable belief that the
Employee's action or omission was in the best interests of the Company.
(c) For purposes of this Employment Agreement only, "Good Reason" shall mean
(i) a diminution in the responsibilities, title, duties and reporting lines of
the Employee compared to those existing immediately prior to a Change of
Control, (ii) a reduction in salary, incentive compensation and other employee
benefits of the Employee compared to those existing immediately prior to the
Change of Control, (iii) relocation of the Employee to an office more than 40
miles from the principal office at which the Employee is employed immediately
prior to the Change of Control, (iv) any breach by the Company of the
Employment Agreement or (v) the failure of any successor to assume, in writing,
all obligations under the Employment Agreement.
(d) For purposes of this Employment Agreement only, "Termination" shall mean
termination of the Employee's employment without Cause or by the Employee for
Good Reason.
Section 5. Excise Tax. In the event that the Employee becomes entitled to
the payments and benefits provided in Section 3 (the "Severance Payments") of
this Addendum to the Employment Agreement, if any of the Severance Payments
will be subject to the excise tax (the "Excise Tax") imposed under Section 4999
of the
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Code, the Company shall pay to the Employee an additional amount (the "Gross-Up
Payment") such that the net amount retained by the Employee, after deduction of
any Excise Tax on the Severance Payments and any Federal, state and local
income and employment tax and Excise Tax upon the payments and benefits
provided for by Section 5 of this Addendum to the Employment Agreement, shall
be equal to the Severance Payments. For purposes of determining whether any of
the Severance Payments will be subject to the Excise Tax and the amount of such
Excise Tax, (i) any other payments or benefits received or to be received by
the Employee in connection with a change in ownership or control (within the
meaning of section 280G of the Code and the regulations promulgated thereunder)
of the Company or the Employee's termination of employment by the Company
without Cause or by the Employee for Good Reason (whether pursuant to the terms
of the Employment Agreement or any other plan, arrangement or agreement with
the Company, any person whose actions result in a change of control or any
person affiliated with the Company or such person) shall be treated as
"parachute payments" within the meaning of section 280G(b)(2) of the Code, and
all "excess parachute payment" within the meaning of section 280G(b)(1) of the
Code shall be treated as subject to the Excise Tax, unless in the opinion of
tax counsel selected by the Company's' independent auditors and reasonably
acceptable to the Employee such other payments or benefits (in whole or in
part) do not constitute parachute payments, including by reason of Section
280G(b)(4)(A) of the Code, or such excess parachute payments (in whole or in
part) represent reasonable compensation for services actually rendered, within
the meaning of section 280G(b)(4)(B) of the Code, in excess of the "base
amount" allocable to such reasonable compensation, or are otherwise not subject
to the Excise Tax, (ii) the amount of the Severance Payments which shall be
treated as subject to the Excise Tax shall be equal to the lesser of (A) the
total amount of the Severance Payments or (B) the amount of excess parachute
payments within the meaning of section 280G(b)(1) of the Code (after applying
clause (i), above), and (iii) the value of any non-cash benefits or any
deferred payment or benefit shall be determined by the Company's independent
auditors in accordance with the principles of sections 280G(d)(3) and (4) of
the Code. For purposes of determining the amount of the Gross-Up Payment, the
Employee shall be deemed to pay Federal income taxes at the highest marginal
rate of Federal income taxation in the calendar year in which the Gross-Up
Payment is to be made and state and local income taxes at the highest marginal
rate of taxation in the state and locality of the Employee's residence on the
date of termination, net of the maximum reduction in Federal income taxes which
could be obtained from the deduction of such state and local taxes.
Section 6. All amounts payable hereunder shall be subject to and paid net of
all required withholding taxes.
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<C> <S>
AGREED TO BY:
DICE INC. THOMAS M. SILVER
Sign: Sign:
Date: Date:
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