Employment Agreement - Uproar Ltd. and Christopher R. Hassett
EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement"), dated as of September 6, 1999,
between UPROAR LIMITED, a corporation with registered offices at 44 Church
Street, Hamilton, Bermuda HM12 (the "Company"), and CHRISTOPHER R. HASSETT,
residing at 1 Central Park West, New York, New York (the "Executive").
W I T N E S S E T H
WHEREAS, the Company desires to employ the Executive, and the
Executive desires to accept such employment, on the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the mutual promises,
representations and warranties set forth herein, and for other good and valuable
consideration, it is hereby agreed as follows:
1. Employment. The Company hereby agrees to employ the
Executive, and the Executive hereby accepts such employment, upon the terms and
conditions set forth herein.
2. Term. The Executive's employment under this Agreement shall
commence on September 6, 1999 (the "Effective Date") and shall continue at-will
until terminated, for any or no reason, by the Executive, upon advance notice to
the Company or by the Company, upon advance notice to the Executive (the date of
such termination hereinafter called the "Termination Date").
3. Position and Duties.
(a) During the Executive's employment hereunder, the
Executive shall serve as the Chief Operating Officer of the Company and shall
have such duties consistent with such office as from time to time may be
reasonably prescribed by the Board of Directors of the Company (the "Board").
(b) During the Executive's employment hereunder, the
Executive shall perform and discharge the duties that may reasonably be assigned
to him by the Board from time to time in accordance with this Agreement, and the
Executive shall devote his best talents, efforts and abilities to the
performance of his duties hereunder.
(c) During his employment hereunder, the Executive shall
perform his duties hereunder on a substantially full-time basis. Notwithstanding
the foregoing, the Executive shall not be precluded from engaging in other
outside business and/or investment activities, provided that such activities do
not materially interfere with the Executive's performance of his duties
hereunder.
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(d) During his employment hereunder, the Executive shall be
provided, at the Company's sole expense, with the exclusive services of a
full-time executive assistant selected by the Executive, in his sole discretion.
4. Consideration.
(a) Option Grant. On September 9, 1999, the Executive shall
be granted an option for the purchase of 343,489 shares of the common stock of
the Company, par value $.05 (the "Option"), on the terms and conditions set
forth on the Notice of Grant and Share Option Agreement, attached hereto as
Exhibit A and incorporated herein by reference, which the Company hereby
represents and warrants constitutes a valid and enforceable grant of a stock
option pursuant to the Uproar Ltd. Share Option/Share Issuance Plan.
(b) Option Plans. The Executive shall be eligible to
participate in the Uproar Ltd. Share Option/Share Issuance Plan and such other
equity-based compensation arrangements as the Company may make available to its
executive employees, in accordance with the terms and conditions of such
arrangements as applicable to such other executive employees.
5. Benefits.
(a) Medical and Health Insurance Benefits. The Company
shall, at its sole expense, provide the Executive and his eligible dependents
with medical, health and dental insurance coverage at least comparable to such
coverage enjoyed by the Executive immediately prior to the execution of this
Agreement or, at the election of the Executive, the coverage generally provided
by the Company to its other executive employees.
(b) Split Dollar Life Insurance.
(1) The Company shall pay on the Executive's behalf all
premiums that become due during his employment hereunder that are required to
maintain in effect a whole life insurance policy, selected by the Executive, on
the Executive's life with a face value of up to $2,000,000, as determined by the
Executive (the "Split Dollar Policy"); provided, however, that the Executive
executes an irrevocable collateral assignment and split dollar agreement in a
form prescribed by the Executive and acceptable to the Company assigning to the
Company the right to recover, following the earlier of the Executive's death or
the Executive's cancellation of the Split Dollar Policy, from the cash value and
any death proceeds of the Split Dollar Policy, any and all amounts paid by the
Company with respect to the Split Dollar Policy and otherwise setting forth the
terms and conditions of maintaining this split dollar life insurance
arrangement.
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(2) Notwithstanding the foregoing, the Company shall
not be obligated to pay annual premiums in excess of $50,000 under this Section
5(b).
(c) Disability and Accident Insurance Benefits. The
Company, at its sole expense, shall provide the Executive with long term
disability insurance (providing benefit payments at least equal to $1,000,000
per year), business travel accident and accidental death and dismemberment
insurance coverage.
(d) Other Benefits. During the Term, the Company shall
provide the Executive with any and all other employee or fringe benefits (in
accordance with their terms and conditions) which the Company may generally make
available to its other executive employees.
6. Reimbursement of Expenses.
(a) The Company shall pay or reimburse the Executive for
all reasonable travel (at business class level), entertainment and other
business expenses actually incurred or paid by the Executive in the performance
of his duties hereunder upon presentation of expense statements and/or such
other supporting information as the Company may reasonably require of the
Executive.
(b) (1) The Company shall also pay or reimburse the
Executive for any and all costs and expenses associated with the Executive's
travelling between his home and the Company's offices utilizing such means and
methods of transportation as the Executive shall determine, in his sole
discretion.
(2) Notwithstanding the foregoing, the Company shall
not be obligated to pay expenses under this Section 6(b) in excess of $4,166.67
per month.
(c) The Executive shall be provided with the directors and
officers liability insurance coverage generally provided to officers of the
Company. Notwithstanding the foregoing, the Company agrees to indemnify the
Executive against all costs, damages and expenses, including attorneys' fees,
incurred by the Executive as a result of claims by third parties arising out of
or from the Executive's lawful acts as an employee of the Company, provided such
acts are not grossly negligent and are performed in good faith and in a manner
reasonably believed by the Executive to be in the Company's best interests. Any
counsel employed to defend the Executive in any such action shall be reasonably
acceptable to the Executive and the Company. Any counsel appointed by any
insurance carrier for the Company shall be deemed acceptable to the Company.
7. Vacations. The Executive shall be entitled to such vacation
as the Company may generally make available to its executive employees. Unused
vacation may be carried over to successive years.
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8. Excise Taxes.
(a) In the event that any payments made and/or benefits
provided to the Executive under this Agreement (including, without limitation,
pursuant to the Option and/or the Notice of Grant and Share Option Agreement
attached hereto as Exhibit A) (hereinafter called the "Payments") are subject to
any excise taxes, including, without limitation, excise taxes imposed by Section
4999 of the Internal Revenue Code of 1986, as amended (the "Code") (the "Excise
Taxes"), the Company shall pay the Executive such additional cash payment(s)
(hereinafter collectively called the "Gross Up Payment") such that the net
amount that the Executive would retain after deduction and/or payment of any
Excise Taxes on the Payments, and any interest and/or penalties assessed by the
Internal Revenue Service with respect to the Excise Taxes, and taking into
account the tax consequences of all additional cash payments made by the Company
pursuant to this Section 8, shall be equal to the aggregate value of Payments.
The determination of whether such Excise Taxes are payable and the amount
thereof shall be based upon the opinion of counsel selected by the Executive and
acceptable to the Company. Any such additional cash payment by the Company shall
be paid by the Company to the Executive in one lump sum cash payment within
thirty (30) days following the date such opinion of counsel is rendered. If such
opinion is not accepted by the Internal Revenue Service, then the Executive
shall determine and notify the Company of the appropriate adjustments in the
Gross Up Payment (taking into account any and all Excise Taxes, interest,
penalties and the tax consequences of all additional cash payments made by the
Company pursuant to this Section 8) and the Company shall pay the Executive the
difference between the final amount of the Gross Up Payment and the amount
previously paid, if any, to the Executive by the Company pursuant to this
Section 8 (hereinafter called the "Adjustment Payment"). Any such Adjustment
Payment shall be paid by the Company to the Executive in one lump sum cash
payment within ten (10) days following such notification.
(b) Notwithstanding the provisions of paragraph (a) of this
Section 8, the Company shall not be obligated to make any Gross Up Payment
unless:
(1) the counsel selected pursuant to Section 8(a)
above, and/or the Internal Revenue Service, determines that there has been a
change in the ownership or effective control of the Company or a change in the
ownership of a substantial portion of the assets of the Company, all as defined
in Section 280G of the Code and the proposed regulations thereunder (each, a
"Change of Control"), and
(2) at the time of the Change of Control (as determined
by such counsel), either:
(A) the Executive is employed by the Company, or
(B) if the Executive is not employed by the
Company, his employment with the Company was not terminated for "Cause" (as
hereinafter defined).
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9. Materials; Confidential Information and Documents.
(a) Materials. The Executive agrees that all ideas, plans
and materials directly related to the online multi-user game business of the
Company which are prepared by the Executive both (i) in connection with his
employment hereunder, and (ii) during the period beginning on the Effective Date
and ending on the Termination Date (hereinafter called the "Materials") are
works-made-for-hire and are the Company's sole and exclusive property. In the
event that any Materials are not copyrightable subject matter or, for any
reason, are deemed not to be works-made-for-hire, the Executive hereby assigns
all right, title and interest to such Materials to the Company, free of any
reversionary rights or restrictions Without limiting the foregoing, it is
specifically understood and agreed that the Executive retains no ownership
rights whatsoever in or to the Materials.
(b) Confidential Information and Documents.
(i) The Executive's duties hereunder will include,
among other things, representation of the Company in high-level dealings with
the Company's clients, accounts, suppliers and financial institutions with which
the Company does business and the authority to discuss and negotiate, on the
Company's behalf, with the executives and upper management personnel of such
clients, accounts, suppliers and financial institutions. These dealings,
together with the Executive's other duties, will result in the Executive
becoming familiar with the proprietary materials, trade secrets, financial
matters, confidential requirements and resources (hereinafter, the "Confidential
Information") of both the Company and its clients. The Executive hereby agrees
that he will not, either during his employment with the Company or thereafter,
disclose to anyone any Confidential Information of the Company or its clients,
or use such Confidential Information for his own benefit or for the benefit of
anyone other than the Company (or its clients, in the case of Confidential
Information of the such client), except that disclosure of such Confidential
Information will be permitted: (A) to the Company and/or its affiliates and the
advisors of the Company and/or its affiliates; (B) in the case of Confidential
Information of any of the Company's clients, to such client and/or its
affiliates and the advisors of such client and/or its affiliates; (C) if such
Confidential Information has previously become available to the public through
no fault of the Executive; (D) if required by any court or governmental agency
or body or is otherwise required by law; (E) if necessary to establish or assert
the rights of the Executive hereunder; (F) if expressly consented to in writing
by the Company (or its client, in the case of Confidential Information of such
client); or (G) if necessary to carry on the Company's business in the ordinary
course or to perform the Executive's duties hereunder.
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(ii) The Executive further agrees that all memoranda,
notes, records or other documents compiled by him or made available to him in
connection with and during his employment hereunder concerning the Company's
business or that of its clients (hereinafter called the "Confidential
Documents") shall be the property of the Company. The Executive further agrees
that he shall deliver to the Company all Confidential Documents in his
possession or control following the termination of his employment with the
Company or at any other time following the Company's written notice to do so.
(iii) The Executive and the Company agree that the
provisions of this Section 9(b) are of the essence to this Agreement and that
the provisions of this Section 9(b) shall survive the termination of this
Agreement and the Executive's employment with the Company.
10. Restrictive Covenants.
(a) Noncompetition. During the Executive's employment
hereunder and, in the event that the Company terminates the Executive's
employment hereunder for "Cause" (as hereinafter defined) or the Executive
terminates his employment hereunder without "Good Reason" (as hereinafter
defined), during the one-year period commencing on the Termination Date, the
Executive shall not knowingly, other than in connection with the performance of
his duties hereunder:
(i) own, be employed by, or exercise any material
control with respect to the online multi-user games business of any person or
entity, or subsidiary, subdivision, division or joint venture of such entity
(other than the Company), including, without limitation, SONY Station,
Gamesville, Playsite, Yahoo Games, Total Entertainment Network, Excite Games,
Mpath and Sierra Online (hereinafter called "Competitive Entities").
Notwithstanding the foregoing, nothing contained in this Agreement shall be
construed to prohibit the Executive from holding a passive equity ownership
interest as a limited partner in a limited partnership or of less than 2% of any
class of the outstanding equity of a publicly traded entity;
(ii) render any services in connection with or in any
way relating to Competitive Entities;
(iii) solicit or encourage any of the employees of the
Company, other than the Executive's assistant described in Section 3(d) hereof,
to leave the employ of the Company or to terminate or alter their contractual
relationships with the Company in a way that is adverse to the interests of the
Company; or
(iv) hire away any of the employees of the Company,
other than the Executive's assistant described in Section 3(d) hereof, to work
for any new employer without the prior written consent of the Company.
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(b) For purposes of this Agreement:
(i) "Cause" shall exist if, and only if, the Executive
(A) willfully and habitually fails in any material respect to perform his
obligations hereunder as provided herein, provided that such Cause shall not
exist unless the Company shall first have provided the Executive with written
notice specifying in reasonable detail the factors constituting such material
failure and such material failure shall not have been cured by the Executive
within 60 days after such notice or, if impracticable of being cured within such
60 day period, such longer period as may reasonably be necessary to accomplish
the cure; or (B) has been convicted of a crime which constitutes a felony under
applicable law and such conviction is not subject to appeal under applicable
law.
(ii) "Good Reason" means the occurrence of any of the
following events:
(A) the assignment to the Executive of any duties
inconsistent in any material respect with the Executive's then position
(including status, offices, titles and reporting relationships), authority,
duties or responsibilities, or any other action or actions by the Company which
when taken as a whole results in a significant diminution in the Executive's
position, authority, duties or responsibilities, excluding for this purpose any
isolated, immaterial and inadvertent action not taken in bad faith and which is
remedied by the Company immediately after receipt of notice thereof given by the
Executive;
(B) a material breach by the Company of one or more
provisions of this Agreement, provided that such Good Reason shall not exist
unless the Executive shall first have provided the Company with written notice
specifying in reasonable detail the factors constituting such material breach
and such material breach shall not have been cured by the Company within 60 days
after such notice or, if impracticable of being cured within such 60 day period,
such longer period as may reasonably be necessary to accomplish the cure;
(C) the Company requiring the Executive to be based
at any location other than within 40 miles driving distance of the Executive's
home, except for requirements of reasonable temporary travel on the Company's
business; and
(D) the failure of the Executive to be elected to
the Board within 90 days of the Effective Date.
11. Severability. Should any provision of this Agreement be
held, by a court of competent jurisdiction, to be invalid or unenforceable, such
invalidity or unenforceability shall not render the entire Agreement invalid or
unenforceable, and this Agreement and each other provision hereof shall be
enforceable and valid to the fullest extent permitted by law.
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12. Arbitration. Any and all disputes, controversies or claims
arising out of or relating to this Agreement, or the enforcement or breach
thereof, shall be settled by arbitration conducted in the County of New York, in
the State of New York, and in accordance with the Commercial Arbitration Rules
(the "Arbitration Rules") of the American Arbitration Association ("AAA") and
the Supplementary Procedures for Large, Complex Disputes; provided, however,
that any dispute, controversy or claim with respect to Section 9 and/or 10 may
not be submitted to arbitration and shall only be submitted to a court in
accordance with Section 13 for an equitable remedy; provided, however, that no
breach of Section 9 and/or 10 of this Agreement shall exist unless the Company
shall first have provided the Executive with written notice specifying in
reasonable detail the factors constituting such breach and such breach shall not
have been cured by the Executive within 60 days after such notice or, if
impracticable of being cured within such 60 day period, such longer period as
may reasonably be necessary to accomplish the cure. The arbitral tribunal shall
consist of three arbitrators. The Company and the Executive shall each select
and appoint one arbitrator within 30 days of initiation of the arbitration and
those arbitrators shall jointly appoint a third arbitrator within 30 days of
their selection and appointment. If the third arbitrator is not appointed as
provided above, such arbitrator shall be appointed by the AAA as provided in the
Arbitration Rules.
Any decision or award of the arbitral tribunal shall be final
and binding upon the parties to the arbitration proceeding. The parties hereto
hereby waive to the extent permitted by law any rights to appeal or to seek
review of such award by any tribunal. The parties hereto agree that the arbitral
award may be enforced against the parties to the arbitration proceeding or their
assets wherever they may be found and that a judgment upon the arbitral award
may be entered in court in accordance with the provisions of Section 13 hereof.
13. Consent to Jurisdiction. Subject to Section 12 hereof, the
Company and the Executive irrevocably and voluntarily submit to personal
jurisdiction in the State of New York and in the Federal and state courts in
such state located in the Southern District of New York in any action or
proceeding arising out of or relating to this Agreement and agree that all
claims in respect of such action or proceeding may be heard and determined in
any such court. The Company and the Executive further consent and agree that the
parties hereto may be served with process in the same manner as a notice may be
given under Section 16. The Company and the Executive agree that any action or
proceeding instituted by one party against the other party with respect to this
Agreement will be instituted exclusively in the state courts located in, and in
the United States District Court for the Southern District of New York. The
Company and the Executive irrevocably and unconditionally waive and agree not to
plead, to the fullest extent permitted by law, any objection that they may now
or hereafter have to the laying of venue or the convenience of the forum of any
action or proceeding with respect to this Agreement in any such courts.
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14. Successors and Assigns.
(a) This Agreement and all rights under this Agreement are
personal to the Executive and shall not be assignable other than by will or the
laws of descent. All of the Executive's rights under this Agreement shall inure
to the benefit of his heirs, personal representatives, designees or other legal
representatives, as the case may be.
(b) This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns. Any Person succeeding
to the business of the Company by merger, purchase, consolidation or otherwise
shall assume by contract or operation of law the obligations of the Company
under this Agreement.
15. Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of New York, without
regard to any rules concerning the conflicts of laws.
16. Notices. All notices, requests and demands given to or
made upon the respective parties hereto shall be deemed to have been given or
made three business days after the date of mailing when mailed by registered or
certified mail, postage prepaid, or on the date of delivery if delivered by
hand, or one business day after the date of delivery by Federal Express or other
reputable overnight delivery service, addressed to the parties at their
addresses set forth below or to such other addresses furnished by notice given
in accordance with this Section 16 (a) if to the Company, to Uproar Limited, 44
Church Street, Hamilton, Bermuda HM12, and (b) if to the Executive, to
Christopher R. Hassett, at 1 Central Park West, New York, New York 10023.
17. Withholding. All payments required to be made by the
Company to the Executive under this Agreement shall be subject to any
withholding taxes, social security and other payroll deductions required under
applicable law.
18. Complete Understanding. Except as expressly provided
below, this Agreement supersedes any prior contracts, understandings,
discussions and agreements relating to employment between the Executive and the
Company, including, without limitation, that certain Consulting Agreement, dated
as of June 7, 1999, by and between the Executive and PrizePoint Entertainment
Corporation, and constitutes the complete understanding between the parties with
respect to the subject matter hereof. No statement, representation, warranty or
covenant has been made by either party with respect to the subject matter hereof
except as expressly set forth herein.
19. Modification; Waiver.
(a) This Agreement may be amended or waived if, and only
if, such amendment or waiver is in writing and signed, in the case of an
amendment, by the Company and the Executive or in the case of a waiver, by the
party against whom the waiver is to be effective. Any such waiver shall be
effective only to the extent specifically set forth in such writing.
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(b) No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
20. Headings. The headings in this Agreement are for
convenience of reference only and shall not control or affect the meaning or
construction of this Agreement.
21. Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument. This Agreement
shall become effective when each party hereto shall have received counterparts
hereof signed by the other party hereto.
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IN WITNESS WHEREOF, the Company has caused this Agreement to
be duly executed in its corporate name by one of its officers duly authorized to
enter into and execute this Agreement, and the Executive has manually signed his
name hereto, all as of the day and year first above written.
UPROAR LIMITED
/s/ Joel Wilhite By: /s/ Michael K. Simon
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Witness
/s/ Rachel Warner By: /s/ Christopher R. Hassett
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Witness CHRISTOPHER R. HASSETT
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EXHIBIT A
UPROAR LTD.
NOTICE OF GRANT AND SHARE OPTION AGREEMENT
Notice is hereby given of the following option grant (the "Option") to
purchase Shares of Uproar Ltd. (the "Corporation"):
Optionee: Christopher R. Hassett
Grant Date: September 9, 1999
Vesting Commencement Date: September 9, 1999
Exercise Price: US$18.85 per share
Number of Option Shares: 343,489 Shares
Expiration Date: September 8, 2009
Type of Option: Incentive Share Option
Vesting Schedule:
(a) On or after September 9, 1999, the Option is
vested and exercisable for up to 85,872 Shares subject to this Option;
(b) On or after December 6, 1999, the Option is
vested and exercisable for up to 171,744 Shares subject to this Option;
(c) On or after September 6, 2000, the Option is
vested and exercisable for up to 257,616 Shares subject to this Option;
(d) On or after October 6, 2000, the Option is vested
and exercisable for up to 264,772 Shares subject to this Option; and
(e) On or after November 6, 2000, the Option is
vested and exercisable for up to 271,928 of the total number of Shares subject
to this Option; and
(f) On or after December 6, 2000, the Option is
vested and exercisable for up to 279,084 Shares subject to this Option;
(g) On or after January 6, 2001, the Option is vested
and exercisable for up to 286,240 Shares subject to this Option;
(h) On or after February 6, 2001, the Option is
vested and exercisable for up to 293,396 Shares subject to this Option;
(i) On or after March 6, 2001, the Option is vested
and exercisable for up to 300,552 of the total number of Shares subject to this
Option;
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(j) On or after April 6, 2001, the Option is vested
and exercisable for up to 307,708 Shares subject to this Option;
(k) On or after May 6, 2001, the Option is vested and
exercisable for up to 314,864 of the total number of Shares subject to this
Option;
(l) On or after June 6, 2001, the Option is vested
and exercisable for up to 322,020 Shares subject to this Option;
(m) On or after July 6, 2001, the Option is vested
and exercisable for up to 329,176 Shares subject to this Option;
(n) On or after August 6, 2001, the Option is vested
and exercisable for up to 336,332 Shares subject to this Option; and
(o) On or after September 6, 2001, the Option is
vested and exercisable for up to the total number of Shares subject to this
Option.
Pursuant to the provisions of Clause 2 of Subsection C of Section I of Article
Two of the Uproar Ltd. 1999 Share Option/Share Issuance Plan (the "Plan") and
notwithstanding anything in this Notice of Grant and Share Option Agreement or
the Plan to the contrary, the Option shall be vested and exercisable for up to
the total number of Shares subject to this Option effective as of the earlier to
occur of (i) the date of the termination of the Optionee's employment with the
Corporation, other than by reason of a termination by the Corporation for
"Cause" (as such term is defined in the Employment Agreement, effective as of
September 6, 1999, by and between the Optionee and the Corporation), or (ii) the
date of a "Corporate Transaction" (as such term is defined in the Plan);
provided that in the case of either event described in (i) and (ii) above, the
Option shall remain exercisable until September 8, 2009.
Optionee understands and agrees that except as expressly provided herein, the
Option is granted subject to and in accordance with the terms of the Plan and
Optionee further agrees to be bound by the terms of the Plan. Optionee hereby
acknowledges receipt of a copy of the Plan in the form attached hereto as
Attachment A. Notwithstanding anything herein to the contrary, no suspension,
termination, modification, or amendment of the Plan or this Notice of Grant and
Share Option Agreement may, without the express written consent of the Optionee,
adversely affect the rights of the Optionee under this Option.
No Employment or Service Contract. Nothing in this Notice of Grant and Share
Option Agreement or the attached Plan shall confer upon Optionee any right to
continue in Service for any period of specific duration or interfere with or
otherwise restrict in any way the rights of the Corporation (or any Parent or
Subsidiary employing or retaining Optionee) or of Optionee, which rights are
hereby expressly reserved by each, to terminate Optionee's Service at any time
for any reason, with or without cause.
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No Obligation to Exercise Option. The granting of the Option shall impose no
obligation upon the Optionee to exercise the Option.
DATED: September 9, 1999
UPROAR LTD.
By: /s/ Michael K. Simon
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Title: Chairman
/s/ Christopher R. Hassett
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OPTIONEE
Address:--------------------------
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ATTACHMENT
Attachment A -1999 Share Option/Share Issuance Plan