EMPLOYMENT AGREEMENT
EXHIBIT
10(c)
THIS
EMPLOYMENT AGREEMENT (this “Agreement”) is entered into as of the 6th day of
June, 2007, by and among Knobias, Inc., a Delaware corporation (the “Company”)
and ▇▇▇▇▇ ▇▇▇▇ (the “Executive”).
WHEREAS,
the Company wishes to employ the Executive on the terms and conditions set
forth
in this Agreement, and the Executive wishes to be retained and employed by
the
Company on such terms and conditions.
NOW,
THEREFORE, in consideration of the premises and the respective undertakings
of
the Company and the Executive set forth below, the Company and Executive hereby
agree as follows:
1. Employment.
The
Company hereby agrees to employ the Executive, and the Executive hereby accepts
such employment and agrees to perform services for the Company, for the Term
(as
hereinafter defined) and in accordance with the terms and provisions of, and
subject to the conditions set forth in, this Agreement.
2. Term.
Unless
terminated at an earlier date in accordance with the provisions of Section
6 of
this Agreement, the initial term of the Executive’s employment hereunder shall
commence on June 6, 2007 (the “Effective Date”) and shall continue until the
third anniversary of the Effective Date (the “Initial Term”). This Agreement
shall be automatically extended for successive one year periods (each, a
“Renewal Term”, and together with the Initial Term, the “Term”) unless (i) any
party objects to such extension by no less than 120 days’ prior written notice
to the other party at any time prior to the expiration of the Initial Term
or a
Renewal Term, as the case may be, or (ii) this Agreement is terminated at an
earlier date in accordance with the provisions of Section 6.
3. Position
and Duties.
3.01 Service
with the Company.
The
Company hereby employs the Executive as the Chief Executive Officer of the
Company, and the Executive hereby accepts such employment and undertakes and
agrees to serve in such capacity during the Term. In such capacity, the
Executive shall have such powers, perform such duties and fulfill such
responsibilities typically associated with such position in other publicly
held
companies and as may be determined by the Board of Directors of the Company.
In
addition, the Company agrees to use its best efforts to cause the Executive
to
be elected as a member of the Board of Directors of the Company.
3.02 Performance
of Duties.
The
Executive agrees to serve Company to the best of his ability and to devote
his
full time, attention and efforts to the business and affairs of the Company
during the Term. Notwithstanding the foregoing, the Executive shall not be
precluded from accepting service as a director of other businesses, community
or
benevolent organizations or from the management of his investments, provided,
however,
that
any such business shall not be competitive with the Company and such service
shall not detract from the Executive’s performance or time commitment hereunder.
The Executive shall report directly to the Board of Directors of the Company.
The Executive will perform his duties as Chief Executive Officer of the Company
from an executive office to be established by the Company in the New York
metropolitan area and will be required to travel to the Company’s principal
executive offices in Ridgeland, Mississippi as often as is reasonably necessary.
Exhibit
10(c) - Page
1
4. Compensation.
4.01 Base
Salary.
(a)
During the Term, as base compensation for all services to be rendered by the
Executive under this Agreement, the Company shall pay to the Executive an annual
base salary, which annual base salary shall be (i) $190,000 per year for the
initial twelve-month period of the Term, (ii) no less than $205,000 per year
for
the second twelve-month period of the Term, and (iii) no less than $220,000
for
the third twelve-month period of the Term (the “Base Salary”), which Base Salary
shall be paid in accordance with the Company’s normal payroll procedures and
policies, subject to applicable deductions as required by law.
(b)
The
amount of the Executive’s Base Salary (a) shall be reviewed annually by the
Board of Directors of the Company, (b) may be increased annually from the amount
of the Base Salary paid to Executive during the prior twelve-month period (each,
a “Prior Period”) of the Term and (c) shall under no circumstance be reduced
from the amount of the Base Salary paid to Executive during the applicable
Prior
Period.
4.02 Annual
Bonus.
During
the Term, in addition to Base Salary, the Company shall pay to the Executive
an
annual bonus in accordance with the Company’s annual bonus plan or program
established by the Board of Directors, or the Compensation Committee, of the
Company. The performance metrics to be achieved by the Executive in order to
earn the annual bonus to be paid to the Executive with respect to any
twelve-month period during the Term shall be determined at the reasonable
discretion of the Board of Directors of the Company with the input of and
consultation with the Executive; provided,
however,
that
the amount of such annual bonus shall be reasonably predicated on the
Executive’s performance; and provided,
further,
and
subject to the Executive achieving the performance metrics established by the
Board as set forth above, in no event shall the amount of the such annual bonus
be less than (i) fifty percent (50%) of Base Salary paid to the Executive during
the first twelve-month period of the Term, (ii) seventy-five percent (75%)
of
Base Salary paid to the Executive during the second twelve-month period of
the
Term, and (iii) one hundred percent (100%) of Base Salary paid to the Executive
during the third twelve-month period of the Term. In addition, the Executive
shall participate in all other bonus programs that Company may adopt from time
to time in which senior executive officers are entitled to participate.
Exhibit
10(c) - Page
2
4.03 Participation
in Benefit Plans.
During
the Term, the Executive shall be entitled to participate in all employee benefit
plans or programs offered to senior executive officers of Company (to the extent
that the Executive meets the requirements for each such plan or program),
including without limitation participation in any health, disability, dental,
eye care, 401(k), deferred compensation and other similar plans (together with
the life insurance and disability policies, “Benefits”), as such plans and
programs may be or have been adopted from time to time.
4.04 Expenses.
The
Company shall pay or reimburse the Executive for all reasonable out-of-pocket
expenses incurred by him in the performance of his duties under this Agreement,
subject to the presentment and approval of appropriate itemized expense
statements, receipts, vouchers or other supporting documentation in accordance
with the Company’s normal policies as established from time to time by the
Company.
4.05 Vacation.
The
Executive shall be entitled to no less than fifteen days of paid vacation during
each twelve (12) month period during the Term.
Exhibit
10(c) - Page
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4.06 Stock
Options and Other Incentive Compensation.
(a) On
the Effective Date, the Company shall grant the Executive options (the
“Employment Options”) to acquire such number of shares of its common stock,
representing 4.5% of the Company's Fully Diluted Common Stock (as hereinafter
defined) on the Effective Date after giving effect to the Restructuring (as
hereinafter defined) and the closing of the Company’s Convertible Debt Financing
(as hereinafter defined). The Employment Options shall vest ratably over three
years on each anniversary of the Effective Date.
(b) In
addition to the Employment Options, the Company shall grant the Executive,
on
the Effective Date, options (the “Performance Options”) to acquire such number
of shares of its common stock, representing 4.5% of the Company's Fully Diluted
Common Stock on the Effective Date after giving effect to the Restructuring
(as
hereinafter defined) and the closing of the Company’s Convertible Debt Financing
(as hereinafter defined). 1.5% of such Performance Options shall vest upon
the
Company achieving the performance milestones, as set forth on Schedule I
attached hereto and made a part hereof.
(c) The
exercise price of each of the Employment Options and the Performance Options
shall be equal to $0.006222 per share (subject to adjustment for stock splits,
etc.), which is the fair market value as of the Effective Date.
(d) For
purposes of this Section, (i) “Fully Diluted Common Stock” shall mean the
aggregate of the number of shares of Company common stock outstanding determined
on an as-converted basis; (ii) "Restructuring” shall mean the restructuring of
the debt and equity capitalization of the Company substantially pursuant to
the
terms and provisions of that certain Letter of Intent, dated February 22, 2007,
by and among the Company, CAMOFI Master LDC, Bushido Capital Master Fund, L.P.,
Gamma Opportunity Capital Partners, LC, Bridges & Pipes LLC, Bank of
Brookhaven, ▇▇▇▇▇▇▇ ▇▇▇▇▇, E. Key Ramsay and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as amended
by
that certain Amendment dated February 23, 2007; and (iii) “Convertible Debt
Financing” shall mean the offer and sale of an aggregate of $3,000,000 principal
amount of the Company senior secured convertible notes to accredited investors
led by Centrecourt Asset Management LLC.
Exhibit
10(c) - Page
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(e) In
addition to the foregoing, the Executive shall be entitled to participate in
all
other stock option, revenue sharing, profit sharing, long-term accumulation
and/or stock based plans or programs that the Company may adopt from time to
time. For purposes of any common stock options or other similar programs to
be
granted hereunder, such common stock and rights shall be defined to include
the
common stock of any successor corporation or other entity into which the Company
is merged, or which acquires substantially all the assets of the
Company.
5. Additional
Covenants.
5.01 Acknowledgments
and Stipulations.
The
Executive acknowledges that he is agreeing to the covenants set forth in this
Section 5 (a) in consideration of the substantial economic benefits derived
by
the Executive under the terms of this Agreement, (b) in recognition that the
services rendered by the Executive to Company will be unique, as are the
Executive’s abilities, skills and experience, (c) in recognition that, as a
result of his employment, the Executive will acquire and participate in the
creation of knowledge and information of a confidential and/or proprietary
nature relating to the business of the Company and its affiliates, which is
valuable to the Company because the Company will expend substantial time, effort
and money to develop such knowledge and information, (d) to induce Company
to
employ the Executive and disclose certain of such information to the Executive,
and (e) to induce Company to enter into this Agreement.
5.02 Non-solicitation
of Customers and Executives.
At all
times during the term of the Executive’s employment with the Company and for a
period from the date of termination until the later of (i) six (6) months
following the termination of such employment pursuant to Section 6.01 hereto
and
(ii) the date on which the Executive receives his last severance payment, (a)
the Executive shall not, directly or indirectly, for himself or on behalf
of or in conjunction with any other person, solicit or attempt to solicit any
business from any customer of the Company in connection with any business,
products or services that are substantially similar to those provided by the
Company, or interfere with the business relationship of the Company with any
customer, and (b) the Executive shall not directly or indirectly cause any
other
person to employ, solicit, disturb, entice away, or in any other manner persuade
any employee of the Company or its affiliates to discontinue or alter his or
her
relationship with the Company.
Exhibit
10(c) - Page
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5.03 Non-competition.
At all
times during the Term of Executive’s employment with the Company and for a
period from the date of termination until the later of (a) six (6) months
following the date of termination of such employment for any reason other than
a
termination of this Agreement by the Company without Cause or by the Executive
for Good Reason, and (b) the date on which the Executive receives his last
severance payment, the Executive whether individually, as a director, manager,
member, stockholder, partner, owner, employee, consultant or agent of any
business, or in any other capacity, shall not engage, directly or indirectly
through any other person, in any business, enterprise or employment which
competes with the business of the Company; provided, however, that this
provision shall not prohibit the Executive from working for a subsidiary or
division of a Company that may compete with the Company so long as such
subsidiary or division does not compete with the Company and Executive’s duties
do not in any way compete with the Company. The Executive acknowledges and
agrees that the business of the Company is of a worldwide nature and that any
geographic limitation on the foregoing covenant would be ineffective to
adequately protect the interests of the Company. The Executive acknowledges
and
agrees that the foregoing covenant is an integral part of his agreement to
be
employed hereunder, is fair and reasonable in light of all of the facts and
circumstances of the relationship between The Executive and the Company. In
the
event any court of competent jurisdiction determines that, notwithstanding
the
foregoing acknowledgments, the scope of the restricted activities of the
foregoing covenant is excessive or not enforceable, or that the foregoing
covenant is not enforceable unless it is subject to a geographic limitation,
this Agreement shall be deemed amended to reflect the maximum restrictions
on
activities and geographic scope allowable pursuant to such court’s
determination. Nothing contained in this Section 5.03 shall be construed as
limiting the scope of this Section 5.
Exhibit
10(c) - Page
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5.05 Confidential
Information.
(a) The
Executive agrees that during and after the period of his employment, he will
not, without the authorization of the Company, divulge, disclose or otherwise
communicate to any person, other than as necessary or desirable for the business
of the Company pursuant to his responsibilities to the Company during the Term,
any Confidential Information (as hereinafter defined), except to the extent
that
such Confidential Information (i) was disclosed to the Executive by a third
party who did not obtain the same directly or indirectly from the Company or
one
of its affiliates, (ii) was known by the Executive prior to disclosure by the
Company, (iii) at or after the time of disclosure, is or becomes generally
available to the public (other than as a result of its disclosure by the
Executive), (iv) is required to be disclosed by the Executive pursuant to
applicable law or an order of a governing authority applicable to the Executive.
(b)
As
used in this Agreement, the term “Confidential Information” shall mean any
information or material known to or used by or for the Company or any of its
subsidiaries (whether or not owned or developed by the Company or any of its
subsidiaries and whether or not developed by the Executive) that is treated
as
confidential by the Company and not generally known to the public. Confidential
Information includes, without limitation, the following: all trade secrets
of
the Company or any of its subsidiaries; all information that the Company or
any
of its subsidiaries has marked as confidential or has otherwise described to
the
Executive (either in writing or orally) as confidential; all non-public
information concerning the products, services, prospective products or services,
research, product designs, prices, discounts, costs, marketing plans, marketing
techniques, market studies test data, customers, customer lists and records,
suppliers and contracts of the Company or any of its subsidiaries; all business
records and plans of the Company or any of its subsidiaries; all personnel
files
of the Company or any of its subsidiaries; all financial information of or
concerning the Company or any of its subsidiaries; all information relating
to
operating system software, applications software, software and system
methodology, hardware platforms, technical information, inventions, computer
programs and listings, source codes, object codes, copyrights, patents,
trademarks, service marks, and other intellectual property; all technical
specifications; any proprietary information belonging to the Company or any
of
its subsidiaries; all computer hardware or software manuals; all training or
instruction manuals; all data and all computer system passwords and user
codes.
Exhibit
10(c) - Page
7
6. Termination
of Employment.
6.01 Termination.
This
Agreement shall terminate prior to the expiration of the Initial Term or any
Renewal Term upon the occurrence of any of the following events at any time
during such Initial Term or Renewal Term:
(a) the
effective date of the Executive’s voluntary resignation, for which Executive
agrees to give at least 30 days’
prior written notice to the Company;
(b) the
Executive’s death;
(c) the
Executive’s Disability (as hereinafter defined);
(d) the
Executive elects to terminate his employment 30 or more days after the Executive
gives the Company written notice of his intent to terminate his employment,
which reason shall have occurred no later than six months from the date of
such
notice (“Notice of Good Reason”) for any of the following reasons (each, a “Good
Reason”), provided
that the
Company has not cured the circumstances constituting Good Reason prior to the
effective date of such resignation: (i) an unreasonable material adverse
alteration in the nature or status of Executive’s title, duties or
responsibilities; (ii) a reduction in Executive’s Base Salary and Benefits
(including contingent bonuses per Section 4.02); (iii) the relocation of the
Executive to offices located outside of the New York metropolitan area; (iv)
the
failure by the Company to pay to Executive any portion of Executive’s
compensation then due and payable; (v) failure of the Company to close on the
Restructuring and Convertible Debt Refinancing, or (vi) any failure by Company
to comply with the material provisions of this Agreement. The Notice of Good
Reason shall indicate the specific provision above that Executive is relying
upon and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for Good Reason under the provision so
indicated;
Exhibit
10(c) - Page
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(e) the
Executive’s termination by Company without Cause (as hereinafter
defined);
(f) the
Executive’s termination by Company for Cause. For the purposes of this
Agreement, “Cause” means, as determined by the Board (or its designee), with
respect to conduct during the Executive's employment or service relationship
with the Company or its affiliates, whether
or not committed during the Term, (i) commission and indictment for a felony
by
the Executive; (ii) material acts
of
dishonesty by the Executive
resulting or intending to result in personal gain or enrichment at the expense
of the Company or its
subsidiaries; (iii) conduct by the Executive in connection with his duties
hereunder that is fraudulent, unlawful or grossly negligent,); (iv) the
intentional nonperformance of any of the Executive material duties hereunder,
including, but not limited to, the failure of the Executive to follow the
explicit lawful directions of the Board of Directors; (v) engaging in personal
conduct by the Executive which seriously discredits or damages the Company
or
its subsidiaries, including but not limited to employee harassment or
discrimination (provided reasonable grounds of such harassment or discrimination
are established) and the use or possession at work of any illegal controlled
substance; and (vi) breach of the Executive's covenants set forth in Section
5
before termination of employment; provided, that, the Executive shall have
ten
(10) days after notice from the Company to cure the deficiency leading to the
Cause determination (except with respect to (i) above, there will be no cure
period, and with respect to (iv) above, the Executive shall have five (5) days
after notice to cure the failure to act), if curable. A termination for “Cause”
shall require approval of the majority of the Board of Directors and will be
effective immediately or on such later date set forth by the Company in the
notice of termination.
Exhibit
10(c) - Page
9
6.02 Severance.
If the
Executive’s employment is terminated:
(a) as
a
result of Sections 6.01(b) or 6.01(c), then the Company shall pay to the
Executive or his estate, as the case may be, his full Base Salary for a period
of six (6) months from the date of termination, and, for a period of one-year
following the date of termination, the Company shall continue to provide or
arrange to provide the Executive and his dependents with life, disability,
accident and health insurance benefits substantially similar to those provided
to the Executive immediately prior to the date of termination.
(b) as
a
result of Sections 6.01(d) or 6.01(e), then the Company shall pay to the
Executive (i) his full Base Salary, pro-rated bonuses for the current year
and
Benefits prorated through the effective date of termination and (ii) additional
Base Salary, payable in accordance with the Company’s then current payroll
policies and practices, plus additional Benefits, for the period from the date
of termination until one year after the date of termination (provided,
however,
if
participation by the Executive in any Benefit plan or program after the
termination of his employment is not permitted under such plan or program,
then
the Company will provide him with the equivalent benefits); the Executive shall
be reimbursed for any expenses incurred by him pursuant to Section 4.04 through
the effective date of such termination. In addition, provided that any level
of
the performance milestones as set forth on Schedule I for the first twelve
(12)
months through December 31, 2008 have been achieved, all remaining options
granted to the Executive shall immediately vest and be exercisable as of the
date of termination, and for a period from the date of termination until the
later of the date on which the Initial Term would have expired and
one-hundred-eighty (180) days after the date of termination. The Company shall
be obligated to pay the full amount of any severance owing to the Executive
pursuant to this Section 6.02(b) irrespective if executive obtains employment
during such severance period and there shall be no offset to any severance
amounts payable as a result of such new employment.
(c) as
a
result of Sections 6.01(a) or 6.01(f), then the Company shall pay to the
Executive his full Base Salary and Benefits prorated through the date of
termination, the Executive shall be reimbursed for any expenses incurred by
him
pursuant to Section 4.04 through the termination date, and all unvested or
unexercised options shall expire as of the date of termination. If such
Executive’s employment is terminated as a result of Section 6.01 (a), Section
6.01(f), or a violation of Section 5.03, any options exercised by the Executive
within three months prior to the date of termination can be repurchased by
the
Company from Executive for a ▇▇▇▇ purchase price of $1.00.
Exhibit
10(c) - Page
10
6.03 “Disability”
Defined.
As used
in this Agreement, the term “Disability” means any mental or physical condition
that results in the Executive becoming unable to perform the essential functions
of his position, with reasonable accommodation, for a period of at least ninety
(90) consecutive days.
The
Executive shall be deemed to have a Disability at the end of such ninety
(90) day period.
6.04 Surrender
of Records and Property.
Upon
termination of the Executive’s employment by the Executive or by the Company,
for any reason or for no reason, the Executive shall deliver promptly to the
Company all records, manuals, books, blank forms, documents, letters, memoranda,
notes, notebooks, reports, data, tables, and calculations, and copies thereof,
in whatever medium, which are the property of Company or which relate in any
way
to the business, products, practices, techniques, customers, suppliers,
functions or operations of Company, and all other property and Confidential
Information of Company, including, but not limited to, all documents which
in
whole or in part contain any Confidential Information of Company, which in
any
of these cases are in his possession or under his control.
6.05 Resignation. If
the
Executive’s employment is terminated for any reason under the terms of this
Agreement, he shall be deemed to resign (i) if a member, from the Board of
Directors of the Company and any subsidiary of the Company or any other board
to
which he has been appointed or nominated by or on behalf of the Company and
(ii)
from any position with the Company or any subsidiary of the Company, including,
but not limited to, as an officer of the Company or any of its subsidiaries.
Exhibit
10(c) - Page
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6.06 Change
in
Control. (a) For purposes of this Agreement, a “Change in Control” shall mean
the occurrence of any of the following events:
(i) the
consummation of a merger or consolidation of the Company or a subsidiary of
the
Company with any other entity, other than a merger or consolidation which would
result in the voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by being
converted or exchanged into other voting securities of another entity) more
than
fifty percent (50%) of the total voting power represented by the voting
securities of the Company or such other entity outstanding immediately after
such merger or consolidation;
(ii) the
approval by the shareholders of the Company of a plan of complete liquidation
of
the Company or the consummation of the sale of disposition by the Company of
all
or substantially all of the Company’s assets; or
(iii) any
“person” (as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1034, as amended) becoming the “beneficial owner” ( as defined
in Rule 13d-3 under said Act), directly or indirectly, of securities of the
Company representing fifty percent (50%) or more of the total voting power
represented by the Company’s then outstanding voting securities.
(iv)
A
change in the majority of the Board of Directors, unless approved by the current
members of the Board.
(b)
In
the event that during the Term there shall be a Change in Control, the Company
shall require any successor to all or substantially all of the business, capital
stock or assets of the Company by written agreement expressly to assume and
agree to perform this Agreement in the same manner and to the same extent as
the
Company would be required to perform if no such succession had occurred. Failure
of the Company to obtain such written agreement prior to the effective date
of
any such succession followed by the failure of the successor to honor this
Agreement shall be a breach of this Agreement and shall entitle the Executive
to
the rights and benefits hereunder as though he had terminated his employment
with Company for Good Reason, whether or not he terminates his employment with
Company.
(c)
In
addition, in the event that during the Term there shall be a Change in Control,
all unvested options shall immediately and automatically vest as of the
effective date of such Change of Control; provided that if such Change of
Control occurs after June 30, 2008, such Change of Control is based upon the
Company having an enterprise value of at least $10 million.
Exhibit
10(c) - Page
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7. Injunctive
Relief; Arbitration.
7.01 Injunctive
Relief.
The
Executive agrees that (i) any breach or threatened breach of Sections 5 or
6.04
shall be a material breach of this Agreement, (ii) such breach will cause
substantial harm to Company and/or its customers, the amount of which will
be
difficult to determine and compute, (iii) the remedies of Company at law for
such breach would be inadequate to fully compensate Company for the harm caused
thereby and (iv) in addition to, but not to the exclusion of any other available
remedy, Company shall have the right to enforce the provisions of Sections
5 and
6.04 by applying for and obtaining temporary and permanent restraining orders,
injunctions, decrees of specific performance and other equitable relief from
any
court of competent jurisdiction without the necessity of filing a bond therefor
or proving irreparable harm.
7.02 Arbitration.
Except
as set forth in Section 7.01, any claim or dispute of any nature between the
parties to this Agreement arising directly or indirectly from the relationship
created by this Agreement shall be resolved exclusively by arbitration at the
locale of the Company’s New York executive offices, in accordance with the
applicable rules of the American Arbitration Association. The fees of the
arbitrator(s) and other costs (not including attorneys’ fees and expenses)
incurred by the parties in connection with such arbitration shall be paid by
each respective party. The decision of the arbitrator(s) shall be final and
binding upon all parties. Judgment of the award rendered by the arbitrator(s)
may be entered in any court having jurisdiction thereof. If any dispute is
submitted to arbitration, each party shall, not later than 30 days before the
date set for hearing, provide to the other parties and to the arbitrator(s)
a
copy of all exhibits upon which the party intends to rely at the hearing and
a
list of all Persons each party intends to call at the hearing.
Exhibit
10(c) - Page
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8. Indemnification.
8.01 Indemnification.
The
Company desires to have the Executive serve as an executive officer of the
Company and as a member of the Board of Directors of the Company, free from
any
undue concern for unpredictable, inappropriate or unreasonable legal risks
and
personal liabilities by his acting in good faith in the performance of his
duties to the Company and will, therefore, (a) indemnify the Executive to the
fullest extent permitted under Delaware law, (b) advance all expenses incurred
by the Executive in defending any action or proceeding to which the Executive
is
a party by reason of the fact that he was or is a director or officer of the
Company to the fullest extent permitted under Delaware law, and (c) purchase
and
maintain for the benefit of the Executive directors and officers liability
insurance policies and errors and omissions insurance policies in reasonable
amounts from established and reputable insurers.
8.02 Indemnification
Hereunder Not Exclusive.
The
indemnification provided by this Agreement shall not be deemed to be exclusive
of any other rights to which the Executive may be entitled under any Articles
of
Incorporation, Bylaws, agreement or resolution of shareholders or directors,
the
General Corporation Law of the State of Delaware, or otherwise.
8.03 Survival.
All
agreements and obligations of Company contained in this Section 8 shall continue
during the Term and shall continue thereafter so long as the Executive shall
be
subject to any possible claim or threatened, pending or completed action, suit
or proceeding, whether civil, criminal, arbitral, administrative or
investigative, by reason of the fact that Executive was serving as a director
or
officer of the Company.
Exhibit
10(c) - Page
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9. Miscellaneous.
9.01 Governing
Law.
This
Agreement is made under and shall be governed by and construed in accordance
with the laws of the State of Delaware.
9.02 Entire
Agreement.
This
Agreement contains the entire agreement of the parties relating to the
employment of the Executive by Company and supersedes all prior agreements
and
understandings with respect to such matters, and the parties hereto have made
no
agreements, representations or warranties relating to such employment which
are
not set forth herein; provided,
however,
that
the benefits conferred under this Agreement are in addition to, and not in
lieu
of, any and all benefits conferred to Executive under plans and arrangements
of
Company.
9.03 Withholding
Taxes.
The
Company may withhold from any compensation and benefits payable under this
Agreement all federal, state, city or other taxes as shall be required pursuant
to any law or governmental regulation or ruling.
9.04 Amendments.
No
amendment or modification of the terms of this Agreement shall be valid unless
made in writing and signed by all parties hereto.
9.05 Severability.
Whenever possible, each provision of this Agreement shall be interpreted in
such
a manner as to be effective and valid under applicable law but if any provision
of this Agreement is held to be invalid, illegal or unenforceable under any
applicable law or rule, the validity, legality and enforceability of the other
provisions of this Agreement will not be affected or impaired
thereby.
9.06 No
Waiver.
No
waiver of any provision of this Agreement shall in any event be effective unless
the same shall be in writing and signed by the party against whom such waiver
is
sought to be enforced and any such waiver shall be effective only in the
specific instance and for the specific purpose for which given.
Exhibit
10(c) - Page
15
9.07 Assignment.
This
Agreement is a personal service contract and, subject to Section 6.06, shall
not
be assignable by any party without the written consent of the other parties.
9.08 Counterparts;
Facsimile Signatures.
This
Agreement may be executed in separate counterparts, each of which will be an
original and all of which taken together shall constitute one and the same
agreement, and any party hereto may execute this Agreement by signing any such
counterpart. A facsimile signature by any party on a counterpart of this
Agreement shall be binding and effective for all purposes. Such party shall
subsequently deliver to each other party an original, executed copy of this
Agreement; provided,
however,
that a
failure of such party to delivery an original, executed copy shall not
invalidate its signature.
9.09 Notices.
All
notices and other communications relating to this Agreement will be in writing
and shall be given by hand delivery to the other party or by registered or
certified mail, return receipt requested, postage prepaid, addressed, in either
case, to the Company’s headquarters or to such other address as either party
shall have furnished to the other party in writing in accordance herewith.
Notices and communications shall be effective when actually received by the
addressee.
9.10 Interpretation.
The
headings contained in this Agreement are for reference purposes only and shall
not in any way affect the meaning or interpretation of this
Agreement.
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remainder of this page has been intentionally left blank]
Exhibit
10(c) - Page
16
IN
WITNESS WHEREOF, the Executive and the Company have executed this Employment
Agreement
as of
the date set forth in the first paragraph.
| KNOBIAS, INC. | ||
| |
|
|
| By: | ||
|
Name: ▇▇▇▇ ▇▇▇▇▇ |
||
| Title: Director | ||
|
▇▇▇▇▇ ▇▇▇▇ |
||
Exhibit
10(c) - Page
17
SCHEDULE
I
Performance
Milestones:
|
Revenues
|
|
EBITDA
|
|||||
|
12
months from January 1, 2008 - December 31, 2008
|
3,750,000
|
$ |
(700,000
|
)
|
|||
|
12
months from January 1, 2009 - December 31, 2009
|
$
|
6,500,000
|
$
|
400,000
|
|||
|
12
months from January 1, 2010 - December 31, 2010
|
$
|
9,000,000
|
$
|
1,000,000
|
|||
Both
sets
of performance milestones (Revenues and EBITDA) must be achieved in order
for
Performance Options to be granted to the Executive by the Company. The Board
of
Directors, or the Compensation Committee of the Board of Directors, shall
determine if the Company has achieved the performance milestones. Such
determination will be derived from the Company’s quarterly financial statements
filed with the Securities and Exchange Commission.
If
at
least 90% but less than 100% of the respective target performance milestones
as
set forth above are met in any 12 month period, then the Executive shall
be
entitled to seventy-five percent (75%) of the Performance Options.
If
at
least 80% but less than 90% of the respective target performance milestones
as
set forth above are met in any 12 month period, then the Executive shall
be
entitled to fifty percent (50%) of the Performance Options.
Exhibit
10(c) - Page
18