Employment Agreement - MinderSoft Inc. and Stephen R. Chapin Jr.
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "Agreement"), made as of November 12,
1997, by and between MinderSoft, Inc. a Maryland corporation (the "Company"),
and Stephen R. Chapin, Jr. ("Employee") recites and provides as follows:
RECITALS:
1. The Company is a database marketing company which uses Internet push
technology (patent pending) to deliver highly personalized reminders based on a
user-provided profile and the company's proprietary content. National retailers
sponsor the reminder software appropriate for their industry and in turn
distribute it at no cost to their customers.
2. The Company desires to employ the Employee as President of the
Company.
3. The Employee desires to be so employed by the Company on the terms
and conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Employment. The Company hereby employs the Employee, and the
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Employee hereby employment with the Company as President.
2. Term. Subject to the provisions of Section 9 of this Agreement
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regarding termination, this Agreement shall remain in effect for a term of two
(2) years beginning on the date hereof. This Agreement shall be renewed
automatically for successive one (1) year terms unless either party gives
written notice of an intent not to renew to the other party within sixty (60)
days of the expiration of such term.
3. Compensation.
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(a) For all services rendered by the Employee pursuant to this
Agreement, the Company shall pay the Employee a base salary of $120,000 per
annum, payable in equal semi-monthly installments, or at such other times as may
be mutually agreed upon by the parties. During the term of this Agreement, the
Employee's salary shall be reviewed once each Fiscal Year (as defined in Section
5(a) below), with the first such review to be made no later than October 31,
1998.
(b) As additional compensation, the Company shall consider paying
Employee a bonus each Fiscal Year in such amount as may be determined by the
board of directors of the Company (the "Board") in its sole discretion based
upon the profitability and overall financial condition of the Company and upon
the Employee's contribution to such profitability and financial condition.
4. Deductions. The Company is authorized to deduct from the actual
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compensation of the Employee such sums as may be required to be deducted or
withheld under the provisions of any federal, state, or local law or regulation
now in effect or hereafter put into effect during the term of this Agreement,
including without limitation, social security, unemployment, and income
withholding taxes.
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5. Benefits.
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(a) The Employee shall be entitled to a paid vacation each
Fiscal Year (as defined below) of four (4) weeks, the timing of which shall be
subject to mutual agreement between the Company and the Employee. The Employee's
attendance at trade shows, training, educational, and professional programs and
meetings shall not be charged against Employee's vacation allowance. The
Employee shall also be entitled to paid sick leave of fifteen (15) days each
fiscal year. The Employee shall not receive additional compensation or credits
for unused vacation or paid sick days, nor shall unused vacation or paid sick
days be carried forward to subsequent Fiscal Years. For purposes of this
Agreement, a "fiscal year" shall begin on the first (1st) day of the month
following the date hereof and shall end on the last day of the twelfth (12th)
month thereafter.
(b) The Company shall reimburse the Employee for all expenses
reasonably and necessarily incurred by him in the performance of his duties
hereunder. To be reimbursed, the Employee must submit written evidence of such
expenses to the Company within thirty (30) days after incurring such expense
along with a written explanation of the expense.
(c) The Employee shall receive such other benefits, if any, as
the Company generally provides to all other executive employees of the Company,
whether now in effect or hereafter adopted, including group hospital and
accidental insurance benefits and group disability insurance coverage.
6. Duties of the Employee.
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(a) The Employee is employed by the Company as President, and
subject to the direction of the Board, shall provide all of the services
generally associated with and inherent in the office of president.
(b) The Employee shall perform such other and further services
as may reasonably be requested by the Board, including carrying out all of the
policies and directives of the Board.
(c) The Employee shall faithfully serve the Company in the
capacities as aforesaid, and shall at all times devote the Employee's full time,
best efforts, skills, attention, and energies to performance of the duties
hereunder to the utmost of the Employee's ability, and shall do and perform all
such services, acts, and things connected therewith as are reasonably required
and as the Board shall from time to time direct. The Employee shall not become
engaged or involved in any activities or matters which may adversely affect or
reflect discredit on the Company or its business, or conflict with the
Employee's services to the Company. This Agreement shall not prohibit the
Employee from investing personal assets in other businesses or entities that do
not "compete" with the Company (as described in Section 9 of this Agreement). In
furtherance of the prior sentence, attached hereto as Schedule 6(c) is a list of
outside business interests of the Employee which shall be deemed to not
interfere with Employee's duties hereunder, so long as Employee devotes less
than 20 hours per calendar quarter, in the aggregate, to such business interests
and activities .
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7. Confidential Information and Trade Secrets;
Invention Assignment Agreement.
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It is understood and agreed that the Employee will serve in a
fiduciary capacity to the Company and, as such, will comply with the standards
applicable to fiduciaries and other employees of the Company. In furtherance
thereof, the Employee has signed of even date herewith the Confidential
Information and Invention Assignment Agreement.
8. Covenant Not to Compete.
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(a) Non-Competition. The Employee hereby covenants and agrees
that the Employee will not, without the prior written consent of the Board, call
on (or accept business from) any customers and/or prospects for the purpose of
selling goods or services to such customer and/or prospect, commencing the date
of this Agreement and continuing for a period of twelve (12) months after the
termination, expiration, or non-renewal of this Agreement for any reason, either
alone or in partnership with or in conjunction with any other person, firm, or
corporation, whether as principal, agent, shareholder, employee, or in any other
form, capacity or manner whatsoever, directly or indirectly, participate, carry
on, conduct, or be engaged in or advise, any person, firm, corporation, or other
legal entity carrying on or engaging in a business venture which is directly or
indirectly competitive with the business conducted by the Company on the date
hereof or in the future. In addition, the Employee shall not solicit or
otherwise communicate with customers of the Company or contact, with the
intention of hiring, or hire any of the Company's employees, officers, or
directors, during the period of this covenant. For purposes hereof, "customers"
shall include those persons and entities which have purchased goods and/or
services from the Company, and "prospects" shall include those persons and
entities to whom employees or independent contractors have submitted an oral or
written proposal for the purpose of providing goods and services from the
Company, in either case within the twelve (12) months prior to the termination,
expiration, or non-renewal of this Agreement.
Moreover, the Employee shall neither accept any employment with or
render any services, directly or indirectly, to a "Competitor Organization" (as
defined below), nor independently or otherwise, render any services or develop
any "Competitive Product" (as defined below) during the period of this covenant.
For purposes of this Agreement, (i) "Competitor Organization" means any person
or organization controlled by, controlling, or under common control with such
person or organization, who or which is engaged in, is about to become engaged
in or intends to engage in any, research on or development, production,
marketing, or selling of a Competitive Product; and (ii) "Competitive Product"
means any product, process, or service of any person or organization other than
the Company, in existence or under development, which substantially resembles
and competes, directly or indirectly, with any product offered by the Company or
any service rendered by the Company on the date hereof or at any time during
the period of this covenant.
(b) Injunctive Relief. The Employee recognizes that the
Company's remedies at law may be inadequate to protect itself against a breach
of any of the terms, covenants, and provisions of this Agreement including by
way of illustration, but not limitation, the covenant not to compete contained
in this Section 8. Therefore, notwithstanding any other provision of this
Agreement or any other agreement (including any other agreement generally
requiring
<PAGE>
arbitration), the Employee agrees that injunctive or other equitable relief
shall be an appropriate remedy for breach of this covenant not to compete, as
well as the other terms, covenants, and provisions of this Agreement, and shall
be a remedy in addition to any and all other remedies available to the Company.
(c) Effect of Violation on Term of Covenant. If, after termination
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of the Employee's employment with the Company for any reason, the Employee
violates any provision of Section 7, the Confidential Information and Invention
Assignment Agreement, or Section 8 of this Agreement, the duration of the
violated covenant shall be computed from the date the Employee resumes
compliance with such covenant or from the date the Company is granted injunctive
relief by a court of competent jurisdiction enforcing such covenant, whichever
occurs first, reduced by the number of days the Employee was not in violation of
such covenant after termination of the Employee's employment with the Company.
(d) Acknowledgment of Reasonableness and Necessity. The Employee
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acknowledges and agrees that in light of the duties of the Employee as President
of the Company, the restrictions stated in this Section 8 are reasonable and
necessary to protect the business interests of the Company. The parties agree
that if the restrictions set forth in this Section 8 are determined by any court
of competent jurisdiction (or arbitration panel, as the case may be), at the
time of enforcement, to be unreasonable as to the duration, scope, area of
restriction, or otherwise, then such restrictions should be applied only to such
activities and territory and only for such period of time as the court (or
arbitration panel, as the case may be) determines to be reasonable in light of
all circumstances then existing.
(e) Interest Public Entities. The restrictions set forth in this
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Section 8 shall not apply to ownership by the Employee of less than five percent
(5%) beneficial interest in the outstanding equity securities of any publicly-
held business entity. For purposes of this Agreement, "publicly-held" shall be
deemed to refer to a business entity which has securities that have been
registered under the Securities Exchange Act of 1934, as amended.
9. Termination of Employment.
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(a) Upon the occurrence of any of the following events and the
expiration of any required notice, this Agreement and the Employee's employment
hereunder automatically shall terminate:
(1) The death or bankruptcy of the Employee.
(2) The Company's termination of the Employee's employment at
any time, "for cause" or not "for cause" (as defined below).
This Agreement and the Employee's employment hereunder shall
terminate upon the expiration of a period of thirty (30) days
after delivery by the Company of written notice to the
Employee of termination. The phrase "for cause" shall include
termination because of the Employee's (i) incompetence in
business-related matters, (ii) willful misconduct, (iii)
censure or reprimand by any regulatory body, (iv) breach of
fiduciary duty, (v) intentional failure to perform stated
duties, (vi) willful violation of any law, rule, or
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regulation (other than minor traffic violations or similar
offenses) including, without limitation, conviction of a
felony, (vii) failure to perform assigned duties in a
reasonably satisfactory manner, or (viii) material breach of
any provision of this Agreement.
(3) The disability of the Employee. The term "disability" as
used herein, shall mean the Employee's inability, by reason of
any physical or mental impairment, to perform the Employee's
duties hereunder. The Employee's disability shall be deemed to
have occurred if a qualified medical doctor selected by the
Company determines with a reasonable degree of medical
certainty that the Employee is unlikely to be able to perform
all the duties set forth herein for a period exceeding three
(3).
(4) The voluntary or involuntary dissolution of the Company.
(b) In the event the Employee voluntarily terminates the Employee's
employment or the Employee's employment is terminated "for cause" under this
Agreement, the Employee shall be entitled to receive from the Company only the
base salary and benefits as set forth herein that have accrued to the date of
termination in full settlement of all of the Company's obligations hereunder.
(c) In the event the Company terminates the employment of Employee by
reason of the Employee's disability, the Employee shall be entitled to receive
from the Company only the base salary and benefits set forth herein that have
accrued to the date of disability and for a period of two (2) months thereafter
in full settlement of all of the Company's obligations hereunder.
(d) In the event the Company terminates the employment of the Employee
not "for cause," the Employee shall be entitled to only the base salary and
benefits as set forth herein that have accrued to the date of termination and
the base salary through the remainder of the term set forth in Section 2
hereinabove in full settlement of all of the Company's obligations to the
Employee.
10. Remedies. The Employee hereby represents that the services to be
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performed by the Employee under this Agreement are of a special, unique,
extraordinary, and intellectual character, which gives them a particular
value, the breach of which cannot be reasonably or adequately
compensated in damages in an action at law. The Employee expressly
acknowledges and agrees that, notwithstanding any other agreement
generally requiring arbitration, the Company shall be entitled to
obtain, in addition to any other rights or remedies the Company may
possess, injunctive or other equitable relief to prevent a prospective
or continuing breach of any provision of this Agreement by the Employee.
11. Costs to Enforce. The party which substantially prevails in any
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arbitration, action suit or other proceeding (whether brought in the form of a
claim or counterclaim) to enforce any of the covenants or obligations contained
in this Agreement, or if a final judgment or order or a temporary order is
entered enforcing any of such covenants or obligations, shall be entitled to
receive from the non-prevailing party all reasonable costs and expenses incurred
by the prevailing
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<PAGE>
party in connection with such arbitration, action, suit or proceeding to
enforce, including but not limited to court costs and reasonable attorneys'
fees, in addition to any other rights or remedies available to the prevailing
party under this Agreement or at law or equity.
12. Notices. All notices or other communications required or permitted
by and among the parties shall be in writing and shall be deemed to have been
given, delivered or made when delivered by hand or mailed by certified or
registered mail, postage prepaid, return receipt requested, and addressed either
as follows or in such other manner as a party may subsequently designate to the
other party in writing:
If to the Company, at:
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10122 Colonial Drive
Ellicott City, Maryland 21042
with mandatory copies to:
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Hedy Nelson, Esq.
Ginsberg, Feldman & Bress
1250 Connecticut Ave., N.W.
Washington, D.C. 20036
and
E. Rogers Novak
Novak Biddle Venture Partners, L.P.
1897 Preston White Drive
Reston, VA 20191
If to the Employee, at:
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The Employee's address as shown on the personnel records of the
Company.
13. Severability. In the event any one or more of the provisions
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contained in this Agreement shall for any reason be held invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provision hereof, and this Agreement shall be
construed as if such invalid, illegal, or unenforceable provision had never been
contained herein.
14. Entire Agreement. This Agreement, together with the Confidential
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Information and Invention Assignment Agreement of even date herewith, supersedes
any other agreement, whether written or oral, that may have been made or entered
into by the Employee and the Company relating to the matters contemplated
hereby. This Agreement and the with the Confidential Information and Invention
Assignment Agreement constitute the entire agreement concerning the transaction
contemplated herein and there are no agreements or commitments in relation to
the subject matter hereof except as set forth herein.
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15. Amendments. This Agreement may not be amended or supplemented
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except in writing as may mutually be agreed to by the parties (provided,
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however, that such amendment must be approved in writing by the two (2) Board
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members nominated by the holders of the Series A preferred stock in the
Employer) to be necessary, desirable, or expedient to further the purpose of
this Agreement, or to clarify the intention of the parties.
16. Applicable Law. This Agreement and the legal relations among the
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parties hereto shall be governed by and construed in accordance with the
substantive laws of the State of Maryland, without giving effect to conflict of
law provisions and principles thereof.
17. Interpretation. When the context in which words are used in this
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Agreement indicates that such is the intent, words in the singular number shall
include the plural, and vice versa, and words in the masculine gender shall
include the feminine and neuter genders, and vice versa.
18. Titles and Headings. Titles and headings to sections and
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paragraphs herein are inserted for convenience of reference only, and are not
intended to be a part of or to affect the meaning or interpretation of this
Agreement.
19. Binding Effect. This Agreement shall be binding upon and
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enforceable against the Company and its successors and assigns.
20. No Attachment. Except as required by law, no right to receive
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payments under this Agreement shall be subject to anticipation, alienation,
sale, assignment, encumbrance, charge, pledge, or hypothecation, or to
execution, attachment, levy or similar process or assignment by operation of
law, and any attempt, voluntary or involuntary to affect any such action shall
be null, void and of no effect.
21. Survival of Certain Provisions. The agreements and covenants of
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the parties pursuant to Section 8 of this Agreement shall survive the
termination of this Agreement. Each such agreement and covenant by the Employee
shall be construed as being independent of the other provisions herein, and the
existence of any claim or cause of action by the Employee against the Company
shall not constitute a defense to the enforcement of any such covenant or
agreement.
22. Binding Arbitration. The Employee hereby acknowledges and agrees
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that, except as otherwise set forth herein, any and all disputes arising out of
the employment relationship created hereby shall be resolved as set forth in the
Confidential Information and Invention Assignment Agreement.
23. Acknowledgments. THE PARTIES HERETO EACH ACKNOWLEDGE THAT THEY
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HAVE READ AND UNDERSTAND ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT AND
HAVE CONSULTED WITH LEGAL COUNSEL AND/OR OTHER SUITABLE ADVISERS REGARDING THE
TERMS AND PROVISIONS OF THIS AGREEMENT. THE EMPLOYEE ACKNOWLEDGES THAT THE
PROVISIONS OF THIS AGREEMENT ARE REASONABLE AND REPRESENTS THAT THE EMPLOYEE
WILL
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BE ABLE TO ENGAGE IN OTHER ACTIVITIES FOR THE PURPOSE OF EARNING A LIVELIHOOD
SHOULD THE PROVISIONS OF THIS AGREEMENT BE ENFORCED.
24. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
25. Further Assurances. The parties hereby covenant and agree to sign,
execute, and deliver, or cause to be signed, executed, and delivered, and to do
or make, or cause to be done or made, upon the reasonable request of the other
party, any and all agreements, instruments, papers, deeds, acts, or things,
supplemental, confirmatory or otherwise, as may be reasonably required by the
other party for the purpose of facilitating the performance of the provisions of
this Agreement.
THE PARTIES, INTENDING TO BE LEGALLY BOUND, have executed this
Agreement on the date first above written.
COMPANY: MinderSoft, Inc.
------- a Maryland corporation
/s/ Stephen R. Chapin, Jr.
By: --------------------------------------
/s/ President
Title: --------------------------------
EMPLOYEE: Stephen R. Chapin, Jr.
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/s/ Stephen R. Chapin, Jr.
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#68727-20851.01639v3
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<PAGE>
SCHEDULE 6(c)
To
MINDERSOFT, INC./STEPHEN R. CHAPIN, JR.
EMPLOYMENT AGREEMENT
Other Business Ventures
Business ventures involving the following patents and patent
applications.
<TABLE>
<CAPTION>
Patent Applications
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Application
Country Number Filing Date
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<S> <C> <C>
US 60/004,665 10/02/95
US 08/560,585 11/20/95
US 08/699,067 08/09/96
US 08/743,429 11/01/96
WO US96/18612 11/20/96
US 08/906,908 08/06/97
<CAPTION>
Patents Issued
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Country Patent Number Date Issued
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<S> <C> <C>
US 4,760,618 08/02/88
US 4,673,440 06/16/87
</TABLE>