EXHIBIT 10.2
EMPLOYMENT AGREEMENT
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THIS AGREEMENT, made effective as of the 1st day of January, 1995, by
and between EARTHWEB LTD., a Maryland Corporation having its offices located at
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (hereinafter called
"Company"), and ▇▇▇▇ ▇. ▇▇▇▇▇▇, an individual (hereinafter called "Employee")
residing at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
W I T N E S S E T H:
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Company wishes to employ Employee and Employee wishes to enter into
the employ of Company on the terms and conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the facts, mutual promises and
covenants contained herein and intending to be legally bound hereby, Company and
Employee agree as follows:
1. Employment. Company hereby employs Employee and Employee hereby
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accepts employment by Company for the period and upon the terms and conditions
contained in this Agreement.
2. Duties; Title; Devotion of Time; Vacation; Equipment.
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2.1. Employee shall provide and be responsible for management of
Company sales and development services and general supervisory duties consistent
with his office.
2.2. Employee shall serve Company as President and Chief Executive
Officer, and shall have such authority and responsibilities normally accorded to
the chief executive officer of the Company.
2.3.1. Throughout the term of this Agreement, Employee shall devote
such of his working time, energy, skill and best efforts to the performance of
his duties hereunder in a manner which will faithfully and diligently further
the business and interests of Company and its affiliates. Notwithstanding the
foregoing, Employee may engage in other activities including the start-up or
participation in other business entities provided the same do not compete with
the business of Company or its subsidiaries or render services to or participate
in any such business or business in the process of development by Company so
long as such activities do not interfere with the performance of his duties as
President of Company in accordance with this agreement.
2.3.2. If Employee shall start another business where the Internet is
a part of the primary mission of such business, he shall give the opportunity to
participate therein to Messrs. ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇ in percentages vis
a vis the three of them which shall be the same as the percentages then held by
either of them in the Company. (For example, if Employee is the sole equity
owner of a new venture and, at that time, the Company is owned 40% by Employee,
40% by ▇▇▇▇▇▇ ▇▇▇▇▇▇ and 20% by ▇▇▇▇ ▇▇▇▇▇▇▇, Employee shall offer a 40% share
to ▇▇▇▇▇▇ ▇▇▇▇▇▇ and a 20% share to ▇▇▇▇ ▇▇▇▇▇▇▇. If, however, Employee's entire
share of the new venture is only 30%, then Employee shall offer 2/5 of the 30%
to ▇▇▇▇▇▇ ▇▇▇▇▇▇ and 1/5 thereof to ▇▇▇▇ ▇▇▇▇▇▇▇.) However, any such
participation by ▇▇▇▇ ▇▇▇▇▇▇▇ and/or ▇▇▇▇▇▇
▇▇▇▇▇▇ shall require cash contribution, together with any promissory note or
other form of contribution, to the extent of the contribution made by Employee
in such business on a pro rata basis. Employee shall use his best efforts to
advise ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ regarding such opportunity as soon as
possible after reaching a final determination to proceed. ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇
▇▇▇▇▇▇▇ may purchase the entire share offered to each of them, respectively, or
any portion thereof. The opportunity referred to above shall be offered by
notice and the offeree shall have sixty (60) days to accept and to tender the
cash payment required and any promissory note or other form of contribution. The
provisions of this Paragraph 2.3.2 are for the benefit of ▇▇▇▇ ▇▇▇▇▇▇▇ and
▇▇▇▇▇▇ ▇▇▇▇▇▇.
2.4. Employee shall be primarily based in the New York, New York
area.
2.5. Employee shall be entitled to take four (4) weeks of paid
vacation and such additional unpaid vacation for such time periods and at such
time as he shall determine in his sole discretion, provided, however, that the
total amount of vacation time taken by Employee shall not jeopardize the
business of Company and Employee shall not take such vacation at time(s) when
the business of the Company reasonably requires that he be present and available
to perform his duties on a regular basis.
2.6. Company shall provide Employee with all equipment and software
reasonably necessary for Employee to carry out his duties set forth herein, and
will reimburse Employee for any software purchased by Employee for the same
purpose. All such equipment and software shall be and remain the property of
Company.
2.7. Company shall reimburse Employee for all reasonable expenses
incurred by Employee in connection with the performance of Employee's duties
hereunder upon receipt of regularly substantiated vouchers therefor and in
accordance with Company's regular reimbursement procedures and practices in
effect from time to time, including, but not limited to, expenses for telephone,
facsimile, copying, and other similar costs.
3. Term. This Agreement shall commence as of the date hereof and shall
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continue for an original term of two (2) years (the "Original Term"), unless
sooner terminated as hereinafter provided. Unless Employee elects to terminate
this Agreement at the end of the Original Term or any Renewal Term, as defined
herein, by giving Company notice of such election at least sixty (60) days
before the expiration of the then-current Term, this Agreement shall be deemed
to have been renewed for consecutive additional terms of one (1) year each (a
"Renewal Term") commencing on the day after the expiration of the then-current
term. The word "Term" herein shall mean either the Original Term or the Renewal
Term, as the context requires.
4. Compensation.
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4.1. For the services rendered by Employee to Company, Company (or
one or more of its affiliates) shall pay Employee an annual salary of not less
than Sixty-Five Thousand Dollars ($65,000) (the "Salary"). Employee's Salary
shall equal or exceed the highest salary paid by Company to any employee. The
Salary is subject to increase from time to time in the sole discretion of the
Managers of Company. The Salary shall be paid semi-monthly in arrears.
4.2. Throughout the term of this Agreement, Employee shall be
entitled to participate in and receive the benefits of any health, life,
accident and disability benefits, if any, which are made available to other
employees of Company.
4.3. Company acknowledges that, as of the date hereof, Company is
indebted to Employee in the amount of Twenty-five Thousand Dollars ($25,000) in
accrued but unpaid salary for the year 1994.
5. Company Capitalization
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5.1. Company currently has an authorized capitalization of 1,000
shares of Common Stock, One ($1) Dollar par value per share, all of which are
voting shares (the "Shares"). The Company has commenced a merger with a newly
formed New York Limited Liability Company. Wherever the context of the text
requires, the term "Company" shall mean the Maryland corporation or its
successor Limited Liability Company. The Limited Liability Company shall have
the authority to admit members to the Company. Members will own membership
interests, of which, at the determination of the Board of Managers (the
"Board"), some shall be Class A Membership Interests ("Class A Interests"), some
shall be Class B Membership Interests ("Class B Interests") all having voting
rights, and some shall be Class C Membership Interests ("Class C Interests")
which shall be non-voting (collectively, the "Membership Interests"). Employee
owns 50% of the Shares. Upon completion of the merger referred to above,
Employee will be the owner of 50% of the Class A Interests. Employee has made a
capital contribution of $75,000 to the Company and has agreed to accept
additional Class A Interests in lieu of a portion of unpaid compensation in the
amount of $20,000 for the first full year of Company's operations commencing in
1994. Neither the Company nor any Member shall modify the Operating Agreement of
the Company (executed simultaneously herewith and annexed as Exhibit B) so as to
change any of the terms of this Agreement, except to the extent agreed to in
writing by Employee.
5.2. Company agrees that it shall not dilute Employee's Membership
Interests to any greater degree than the Membership Interests of ▇▇▇▇▇▇ ▇▇▇▇▇▇
are diluted.
5.3. Nothing contained herein shall prohibit Employee from purchasing
Membership Interests in Company to avoid dilution of his Membership Interests in
the Company.
5.4. Employee shall transfer to Mr. ▇▇▇▇ ▇▇▇▇▇▇▇ ("▇▇▇▇ ▇▇▇▇▇▇▇")
Membership Interests sufficient to cover one half of the obligations of Employer
for delivery of such Interests to ▇▇▇▇ ▇▇▇▇▇▇▇.
6. Termination.
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6.1. Company may terminate Employee's employment hereunder at any
time for Employee: engaging in criminal conduct which results in a conviction on
a felony charge; gross incompetence; alcohol or drug abuse which impairs
Employee's performance of his duties hereunder; continuing misconduct or
dereliction of duty or incompetence; any willful violation of any material
express direction or any reasonable material rule or regulation established by
Company's Board of Directors from time to time regarding the conduct of its
business;
misrepresentation made in this Agreement; or any material violation by Employee
of the terms and conditions of this Agreement ("for cause"), in which event,
except as herein specifically set forth to the contrary, Company shall have no
further obligations or liabilities under this Agreement after the date of such
termination. If Employee shall be indicted or otherwise legally charged with a
felony, Company may place Employee on an unpaid leave of absence until he shall
be either convicted or acquitted of the charges or such charges have been
dismissed with prejudice ("dismissed" or "dismissal"). If Employee shall be
acquitted or such charges dismissed, Employee's employment shall resume on the
terms provided herein.
6.2. Resignation by Employee shall be governed by Rider X to the
Company's Operating Agreement.
6.3.1. If the employment of Employee is terminated by Company for
cause, Company shall have the option for a period of five years to buy from
Employee and the terminated Employee shall have the obligation to sell to the
Company all of Employee's interest in the Company if termination is due to
conviction of a felony, or 25% of Employee's interest in the Company if such
termination is due to gross incompetence (said 100% interest, or 25% interest"),
which Employee is required to sell, as the case may be, is hereafter called the
"Departure Interest"). In addition, if termination is due to gross incompetence,
an additional 50% of Employee's Class A Membership Interest shall be converted
to Class C. Commencing 90 days after such termination, and until such time as
Company shall either exercise its option by notice to Employee or waive its
option by like notice (either notice shall be given no later than five (5) years
from termination) Company shall pay to Employee in monthly installments a sum
equal to 1/2 the salary being paid to him immediately prior to such termination
(the "Option Payments"). If the Company timely exercises its option to purchase
the Departure Interest, all Option Payments made to Employee shall be applied in
reduction of the Buyout Price. If Company elects not to buy the Departure
Interest, any Option Payments previously made to Employee shall belong to the
Employee as additional salary. Failure to give timely notice shall be deemed a
waiver of the Company's right to exercise the Option.
6.3.2. The purchase price of the terminated Employee's Departure
Interest shall be the Buyout Amount specified in Section 8 below multiplied by
the Departure Interest percentage, and in turn multiplied by seventy five (75%)
percent (the "For Cause Buyout Price").
6.3.3. The For Cause Buyout Price of Employee's Departure Interest
payable herein shall be paid by Company to Employee in monthly installments
equal to 1/12th of 10% of the Company's net income before taxes calculated in
accordance with generally accepted accounting principles (GAAP) consistently
followed as determined by the Company's firm of independent certified public
accountants. Net income shall be estimated based upon internally prepared
quarterly statements adjusted within thirty days following receipt of the
Company's annual audited financial statements. If the remaining equity holders
in the Company shall sell all or substantially all of their interest in the
Company or the Company's interest in Identinet LLC, or if they shall sell all or
substantially all of the business of the Company or Identinet LLC, then any
balance of the Buyout Price unpaid shall be paid to Employee within five (5)
business days following the closing of such a transaction.
6.3.4. The Departure Interest of Employee shall be transferred to the
remaining equity holders of the Company, pro rata. All of Employee's Departure
Interest shall be deemed transferred on the date the first installment of the
For Cause Buyout Price is paid to him. If, however, prior to Employee receiving
the entire For Cause Buyout Price, any dividend or distribution is made by the
Company to its equity holders, the amount that otherwise would have been paid to
Employee were he still an equity holder shall be paid to him but shall be
applied to the balance of the For Cause Buyout Price.
7. Death or Disability.
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7.1. If Employee dies, the payment of all compensation and
reimbursement of expenses described in Sections 2 and 4, above, shall cease at
the end of the month in which Employee's death shall occur and Company shall
have no further obligations or liabilities with respect thereto to Employee's
estate or legal representative or otherwise.
7.2. As used herein, Employee shall be considered disabled if, as a
result of a medically determinable injury, physical or mental illness or
impairment such that Employee is unable to engage in any substantial gainful
activity reasonably related to that in which he was previously engaged on behalf
of the Company. If Employee is disabled for a continuous period of six months,
the Company may, upon notice to Employee given at any time after the expiration
of such period, terminate Employee's employment hereunder. Upon such
termination, the payment of all compensation and reimbursement of expenses
described in Sections 2 and 4, above, shall cease at the end of the month in
which Employee's termination shall occur and Company shall have no further
obligations or liabilities with respect thereto to Employee, Employee's estate
or legal representative or otherwise. Except as herein specifically set forth to
the contrary, Company shall have no further obligations or liabilities under
this Agreement after the date of such termination.
8. Termination of Employment by Company Without Cause.
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8.1. Company shall have no right to terminate Employee's employment
hereunder without cause. If Company shall breach this provision, then, in
addition to the rights specified in this Section 8, at Employee's sole option,
(1) Company shall continue to pay to Employee wages and bonuses and to provide
benefits all as in effect at the date of such breach for a period of five (5)
years, or (2) Employee may bring suit against Company for damages including,
without limitation, all legal fees, costs and disbursements incurred by Employee
in pursuit of his rights hereunder.
8.2. If Company shall terminate Employee's employment other than
for cause, Employee may, at his sole election, require Company to purchase all
or any portion of his Membership Interests in Company at any time within five
(5) years after such termination. If Employee shall so elect, Company shall buy
and Employee shall sell Employee's Class A Membership Interests for the Buyout
Amount specified in Section 9 below multiplied by the percentage of Membership
Interest determined to be sold by Employee (the "Buyout Price").
8.2.1. Payments of the Buyout Price shall begin 90 days following the
later of (i) the date of Employee's election to sell any portion or all of his
Membership Interest, or (ii) the
date the Buy Out Price has been fixed and shall be made in monthly installments
as follows until the entire Buyout Price is paid in full. The amount of the
first and second monthly installments shall be $50,000 each. Thereafter, the
amount of each installment shall be the greater of: (i) 80% of the monthly
salary being paid to Employee on the date of his termination, or (ii) 1/12th of
10% of the Company's net income before taxes calculated in accordance with
generally accepted accounting principles (GAAP) consistently followed as
determined by the Company's firm of independent certified public accountants. If
the payment shall be determined under subprovision (ii), net income shall be
estimated based upon internally prepared quarterly statements adjusted within
thirty days following receipt of the Company's annual audited financial
statements. If, after a termination of Employee's employment by the Company
without cause, the Company shall close a public offering of its securities, then
the payment under provision (ii) above shall increase to 1/12th of 30% of the
Company's net income before taxes as referred to above. In addition, if ▇▇▇▇▇▇
▇▇▇▇▇▇ shall sell all or substantially all of his interest in the Company or the
Company shall sell the Company's interest in Identinet LLC, or Identinet LLC
shall sell all of its interest in any operating subsidiary, or if the Company
shall sell all or substantially all of the business of the Company or Identinet
LLC or any operating subsidiary shall sell all or substantially all of its
respective business, then any balance of the Buyout Price unpaid shall be paid
to Employee within five (5) business days following the closing of such a
transaction.
8.2.2. If after such termination without cause the Company shall
dissolve and liquidate its business, Employee shall be paid the entire balance
of the Buyout Price prior to the payment of any distribution payable to ▇▇▇▇▇▇
▇▇▇▇▇▇. However, if ▇▇▇▇▇▇ ▇▇▇▇▇▇ has likewise been terminated without cause,
then distributions shall be made to ▇▇▇▇▇▇ ▇▇▇▇▇▇ and to Employee pro rata.
Except for the foregoing priority, obligations to Employee for Buyout payments
shall be subject and subordinate to any and all debts of the Company and to the
claims of all Members of the Company of any kind or nature other than those of
▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇; provided, however, that the obligations to
Employee for Buyout payments shall be subordinate to the pre-existing
obligations of Company to make Buyout payments to ▇▇▇▇ ▇▇▇▇▇▇▇ if such payments
to ▇▇▇▇ ▇▇▇▇▇▇▇ are in connection with a termination of the employment of ▇▇▇▇
▇▇▇▇▇▇▇ by Company other than "for cause".
8.2.3. The Class A Membership Interest of Employee acquired hereby
shall be transferred to the remaining Members of Company, pro rata, as voting
Interests. All of Employee's Membership Interest shall be deemed transferred on
the date the first installment of the Buyout Price is paid to him. If, however,
prior to Employee receiving the entire Buyout Price, any dividend or
distribution is made by the Company to its Members, the amount that otherwise
would have been paid to Employee were he still a Member shall be paid to him but
shall be applied to the balance of the Buyout Price.
9. Buyout Amount Determination.
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9.1. Every year within thirty (30) days after the receipt by the
Company of its annual financial statements, the Managers of the Company shall
meet and fix the Agreed Value of a one percent (1%) Membership Interest in the
Company. The term "Agreed Value" means that dollar amount last agreed upon in
writing by all of the Managers of the Company, which agreement shall be dated
and filed among the records of the Company and shall be in the form annexed as
Exhibit C hereto. The Buyout Amount shall be the Agreed Value unless Agreed
Value is stale. The Agreed Value is stale if the date of Employee's election to
sell his Membership Interest (the "Calculation Date") is more than twelve (12)
months after the date of the most recent written agreement as to such valuation
by the Managers of the Company and Employee. If the Agreed Value is stale, the
Managers of the Company shall attempt to reach agreement as to "Agreed Value"
for a period of thirty (30) days following the Calculation Date.
9.2. If the Managers of the Company and Employee shall fail to agree
to an Agreed Value within thirty (30) days following the Calculation Date,
within five (5) business days following the end of such period, the parties
hereto shall submit to one another their respective values for a 1% Membership
Interest in the Company (the "Estimated Value"). Thereafter, the parties hereto
shall each within ten (10) working days select a qualified business appraiser
and forward the name to the other party. Such appraisers shall select a third
appraiser (the "Appraiser") not affiliated with either one. To secure payment of
the Appraiser's fee, each of the parties shall deposit with then Counsel to the
Company 50% of the fee quoted. The Appraiser shall evaluate the Company and the
value of a 1% Membership Interest therein, and shall certify such value to the
parties hereto in writing (the "Appraised Value"). The Appraised Value in the
absence of gross error or misconduct shall be the Buyout Amount and shall be
final and binding on the parties hereto unless adjusted as set forth in Section
9.3, below. If Employee has been terminated for cause, Employee shall pay 1/2 of
the appraisal fees, but if Employee has been terminated without cause then the
Company shall pay said 1/2. The balance of such fees shall be paid 25% by the
party whose Estimated Value is closest to the Appraised Value and 75% by the
other party.
9.3. Section 9.2 to the contrary notwithstanding, if Employee's
employment hereunder shall cease and if Employee has pursuant to this agreement
elected to require Company to purchase his Membership Interest, and if the
Company shall make a public offering of its equity securities or sell all or
substantially all of its business during the twenty four (24) month period
following the date Buyout payments are scheduled to commence, then the term
"Buyout Amount" shall mean the public offering price or private sale price for
the equivalent Membership Interest that would have been owned by Employee had
Employee's Membership Interest not been subject to the Buyout provisions hereof.
9.4. If the Buyout Amount is determined by Appraised Value, any
salaries paid to ▇▇▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇▇ by the Company or any of its
affiliates shall be disregarded to the extent that such salaries exceed $300,000
in the aggregate, i.e. such excess shall be added back to net profits as an
extraordinary income item. In addition, in determining the Company's net income
before taxes, for the purpose of determining the amount to be paid to Employee
after termination of his employment without cause under Section 8, any salaries
paid to ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ by the Company or any of its affiliates
shall be disregarded to the extent that such salaries exceed $300,000 in the
aggregate, i.e. such excess shall be added back to net profits as an
extraordinary income item.
10. Death of Employee - Disposition of Membership Interest.
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10.1. In the event of the death of Employee, and provided that (i)
the Company is not dissolved as a result thereof, and (ii) the Employee's Class
A Membership Interest has not been transferred to a brother, sister, spouse,
child, grandchild, spouse of a child or grandchild, or
trust for the benefit of any of them, as provided in the Operating Agreement,
Company shall purchase and the estate of Employee shall sell the Employee's
Class A Membership Interest at the Buyout Price.
10.2. In order to provide funds for the Company to purchase the
Employee's Class A Membership Interest hereunder, Company may purchase life
insurance on the life of Employee. The Company shall in each case be the
beneficiary of all policies and shall retain possession thereof. The policies
shall be subject to the terms and provisions of the Operating Agreement.
10.3. Company shall pay the premiums on the policies which are
subject to this Section 10. In case any premium is not paid within twenty (20)
days after its due date, Employee shall be entitled to pay such premium as agent
of the policy owner, and Company agrees to reimburse Employee promptly for any
such payment. The insurance company is authorized and directed to give Employee,
upon Employee's written request, any information about the status of any policy
on Employee's life which is subject to this Section 10.
10.4. Company shall promptly collect the proceeds of the policy of
life insurance on the life of Employee and shall hold the same as a trustee,
separate and apart from its other assets, solely for the purpose of purchasing
Employee's Class A Membership Interest, and as such trustee, shall turn over the
same to the legal representative of the estate of Employee, promptly after his
or her appointment, as payment on account for Employee's Class A Membership
Interest. The foregoing notwithstanding, if Employee has transferred all or part
of his Membership Interest to a transferee of the type set forth in Section
10.1(ii) (the "Transferred Interest"), the proceeds of such insurance shall be
at the election of the then holder or holders, individually, either (i) paid to
such holder pro rata in exchange for such holder's Transferred Interest or (ii)
contributed to the capital of the Company to be added to each remaining Member's
capital account.
10.5. Proceeds Exceed Purchase Price. In the event the purchase price
of Employee's Class A Membership Interest shall not exceed the proceeds of the
insurance, then the legal representative of Employee shall retain the amount
received from such insurance on a pro rata basis as payment in full for a
transferee's Transferred Interest.
10.6. Purchase Price Exceeds Proceeds. In the event the purchase
price of the pro rata share of Employee's Class A Membership Interest tendered
by a transferee exceeds the pro rata proceeds of insurance on Employee's life,
collected or collectible by Company, then the balance of the purchase price
shall be paid as hereinafter provided. It is the express intention of the
parties that the amount of insurance collected or collectible by Company on
Employee's life shall at all times constitute the minimum payment on account of
the purchase price to be made available for the Class A Membership Interest of
Employee. That portion of the purchase price of the tendered Class A Membership
Interest of Employee in excess of the pro rata proceeds of insurance shall be
paid by Company to the estate or party so tendering in thirty-six (36) equal
monthly installments, with interest at the prime lending rate as set forth from
time to time in The Wall Street Journal, commencing within sixty (60) days after
appointment of the legal representative of Employee's estate.
11. Company Property. Except as expressly provided for in Sections 12
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and 13 to the contrary, all written research, promotional advertising, and any
other written materials, articles, or data of any kind furnished to Employee by
Company or any subsidiary thereof or developed by others on behalf of Company or
any subsidiary thereof and, in each case, related to Company's, or any
subsidiary's, business from time to time actually being marketed by Company, are
and shall remain the sole and confidential property of Company; provided,
however, that the foregoing shall not apply to any material in the public domain
other than by reason of a breach of this Section 11. If Company requests the
return of such materials at any time after the termination of Employee's
employment, Employee shall immediately deliver the same to Company at Company's
expense. Employee shall make full disclosure to Company of all such writings and
materials and shall do everything necessary or desirable to vest the absolute
title thereto in Company. Employee shall not be entitled to any additional or
special compensation or reimbursement regarding any and all such writings and
materials.
12. Proprietary Nature of Certain Ideas. Employee shall have the right to
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retain as his own property any creative ideas which are not used by Company.
Such ideas shall not include any business opportunities upon which Company has
made any material cash outlays. If the Company has made no such material cash
outlays on an idea but has made or prepared material 1) strategic and financial
projections, or 2) graphical treatments, or 3) program designs, then Employee
shall not use or disclose to anyone else for use any such idea during the term
of this Agreement and for a period of one (1) year thereafter.
13. Trade Secrets, Non-compete Etc.
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13.1. During the term of employment of Employee by Company
("Confidentiality Period") in any county in any state of the United States in
which Company now or during said term makes sales, purchases supplies or
services customers (and as to then existing customers of Company whose
operations extend beyond such territory, then to the extent of such territory
which shall include, without being limited to any physical location from which
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use of or connection with the Internet may be obtained), Employee shall hold and
keep confidential any design, method, procedure, systems, plans, specifications,
customer requirements, information or know how that is not generally known, and
that is used by Company, any of its affiliated companies or its or their
subsidiaries in connection with their respective businesses (all of the
foregoing being hereinafter collectively referred to as "Know-How," including
without limitation any such Know-How which provides to Company, as such Know-How
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is used by Company, the opportunity to obtain an advantage over competitors who
do not have or use such Know-How) which Employee may now know or which hereafter
becomes known to him as a result of employment by Company and shall not during
the Confidentiality Period, directly or indirectly, disclose any such Know-How
to any person, firm or corporation or use the same in any way other than in
connection with the business and affairs of Company, its affiliated companies or
its or their subsidiaries.
13.2. During the term of employment of Employee by Company Employee
is expressly permitted to engage in any business which does not compete with the
business of Company or its subsidiaries or render services to or participate in
any such business, or business in the process of development by Company so long
as such activities do not interfere with the performance of his duties as
President of Company in accordance with this agreement. Provided,
however, that if Employee engages in the creation of a new business venture,
Employee must offer ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ an opportunity to participate
in the manner specified in Section 2.3.
13.3. The prohibitions contained in Sections 13.1 and 13.2 are
severable and shall be so interpreted by any court, it being the intent of the
parties hereto if any prohibition in said paragraphs be found to be an
unreasonable restraint of trade or otherwise unenforceable by any court of
competent jurisdiction, that court may limit any such provision to the extent
necessary to make such provision enforceable and that the other provisions in
the paragraph shall remain unaffected. The parties hereto acknowledge that the
business of Company involves the Internet which is world wide in scope and whose
existence tends to limit the importance of physical location in the conduct of
business. It is the intention of the parties to protect the interests of Company
of which Employee is a founder, but permit Employee to work during and after his
employment by Company in a manner which is not competitive with Company at the
time that Employee commences such business activity. In evaluating each such
provision, any court shall take into consideration the scope and nature of the
Internet and the breadth of its accessibility and use. If any court shall
determine that the territory set forth above is overly broad, such territory
shall be deemed limited to the widest territory permitted by law. Employee
acknowledges that the violation of the above referred to provision would cause
irreparable injury to Company and that the remedy at law for any violation or
threatened violation thereof would be inadequate. Employee agrees that Company,
in addition to any remedy at law, may seek a temporary and permanent injunction
or other equitable relief without the necessity of proving actual damages. In
addition, the invalidity of any of the foregoing limitations when applied to
particular circumstances shall not affect the validity of such limitations under
any other dissimilar circumstances.
14. Prior Agreements. Employee represents to Company (a) that there are
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no restrictions, agreements or understandings whatsoever to which Employee is a
party which would prevent or make unlawful such Employee's execution of this
Agreement or Employee's employment hereunder, (b) that Employee's execution of
this Agreement and Employee's employment hereunder shall not constitute a breach
of any contract, agreement or understanding, oral or written, to which Employee
is a party or by which Employee is bound and (c) that Employee is free and able
to execute this Agreement and enter into employment by Company.
15. Miscellaneous.
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15.1. Waivers. Neither the failure nor any delay on the part of
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either party to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any
occurrence be construed as a waiver of such right, remedy, power or privilege
with respect to any other occurrence.
15.2. Controlling Law. This Agreement and all questions relating to
----------------
its validity, interpretation, performance and enforcement (including, without
limitation, provisions
concerning limitations of actions), shall be governed by and construed in
accordance with the laws of the State of New York.
15.3. Notices. All notices, requests, demands and other
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communications required or permitted under this Agreement shall be in writing
and shall be deemed to have been duly given, made and received only when
delivered (personally, by courier service such as Federal Express, or by other
messenger) or when deposited in the United States mails, registered or certified
mail, postage prepaid, return receipt requested, addressed as set forth below:
If to Employee:
▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇. # ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
If to Company:
Global Network Partners LLC
c/o EarthWeb LLC
▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Vice President
With copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Cuddy & ▇▇▇▇▇ & ▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
In addition, notice by mail shall be by air mail if posted outside of
the continental United States.
Any party may alter the address to which communications or copies are
to be sent by giving notice of such change of address in conformity with the
provisions of this paragraph for the giving of notice.
15.4. Binding Nature of Agreement. This Agreement shall be binding
----------------------------
upon and inure to the benefit of Company, its affiliates, and its and their
successors and assigns and shall be binding upon Employee, his heirs and legal
representatives.
15.5. Execution in Counterparts. This Agreement may be executed in
--------------------------
any number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of all of the parties reflected hereon as the
signatories.
15.6. Provisions Separable. The provisions of this Agreement are
---------------------
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
15.7. Entire Agreement, Amendments. This Agreement contains the
-----------------------------
entire understanding among the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements and
understandings, inducements or conditions, express or implied, oral or written,
except as herein contained. The express terms hereof control and supersede any
course of performance and/or usage of the trade inconsistent with any of the
terms hereof. This Agreement may not be modified or amended other than by an
agreement in writing signed by the parties hereto.
15.8. Section Headings. The paragraph headings in this Agreement
-----------------
are for convenience only; they form no part of this Agreement and shall not
affect its interpretation.
15.9. Gender, Etc. Words used herein, regardless of the number and
------------
gender specifically used, shall be deemed and construed to include any other
number, singular or plural, and any other gender, masculine, feminine or neuter,
as the context indicates is appropriate.
15.10. Number of Days. In computing the number of days for purposes
---------------
of this Agreement, all days shall be counted, including Saturdays, Sundays and
holidays; provided, however, that if the final day of any time period falls on a
Saturday, Sunday or holiday on which federal banks are or may elect to be
closed, then the final day shall be deemed to be the next day which is not a
Saturday, Sunday or such holiday.
15.11. Company Name. Between the effective date of this Agreement
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and the date upon which it was formalized by the signing of this Agreement,
Company has changed its name to Global Network Partners LLC.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement on or as of the date first above written.
EARTHWEB, LTD. , a Maryland corporation
or its Successor Limited Liability Company
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, Employee