Exhibit 10.4
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement") is being made as of the 14th day of
March 1997 between DATA BROADCASTING CORPORATION, a Delaware corporation (the
"Company"), and ALLAN R. TESSLER, having its principal offices at 3490
Clubhouse Drive, Jackson, Wyoming 83001 (the "Executive"), an individual
residing at 1100 Pine Siskin, Jackson, WY 83001.
WITNESSETH:
WHEREAS, the Company desires to continue the employment of the Executive
and the Executive desires to be employed by the Company as its Co-Chairman and
Co-Chief Executive Officer upon the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual premises and agreements
contained herein, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Nature of Employment; Term of Employment. The Company hereby employs
the Executive and the Executive agrees to serve the Company as its Co-Chairman
and Co-Chief Executive Officer, upon the terms and conditions contained
herein, for a term commencing as of January 1, 1997 and continuing until
December 31, 2000 (the "Employment Term"); provided, however, that unless
either the Company or the Executive gives notice that it or he desires to
terminate this Agreement at least sixty (60) days prior to the date of its
termination, this Agreement (including this Section 1) shall automatically be
renewed for additional successive periods of one (1) year.
2. Duties and Powers as Employee.
(a) During the Employment Term, the Executive shall be employed by
the Company as its Co-Chairman and Co-Chief Executive Officer. The Executive
agrees to devote such time and efforts to the performance of his duties under
this Agreement as shall be reasonably necessary. In the performance of his
duties, the Executive shall be subject to the direction of the Board of
Directors of the Company. The Executive shall be available to travel as the
needs of the business require.
(b) During the Employment Term, the Executive shall be nominated to
be a director of the Company.
3. Compensation.
(a) As compensation for his services hereunder, the Company shall
pay the Executive, during the Employment term, a base salary (the "Base
Salary") payable in equal semi-monthly installments at the annual rate of
$325,000 for the year ended December 31, 1997, $350,000 for the year ended
December 31, 1998, and $400,000 for the year ended December 31, 1999 and for
each year thereafter. Additionally, the Executive shall be participate in
the present or future employee benefit plans of the Company provided that he
meets the eligibility requirements therefor.
(b) In addition to the Base Salary provided herein, the Executive
shall receive as a performance bonus payment (a "Bonus"), on an annual basis,
a sum equal to up to 100% of the Executive's Base Salary for the fiscal year
then ended. The exact percentage shall be determined in the absolute sole
discretion of the Compensation Committee of the Board of Directors of the
Company based upon an evaluation of the performance of the Executive and the
Company during the previous fiscal year. The Bonus shall be paid to the
Executive within ninety (90) days after the end of the Company's fiscal year
notwithstanding that such date may be after the expiration of the Employment
Term.
(c) In addition, the Company shall request that the Stock Option
Committee of the Board of Directors of the Company issue the Executive
incentive stock options ("Options") to acquire 125,000 shares of common stock
of the Company effective as of January 2, 1997. The Options shall have an
exercise price equal to the fair market value on the trading day preceding
the date of grant, and shall vest in equal installments over three years,
subject to earlier vesting as described in this Agreement and in the
Company's Stock Option Plan. It is also anticipated that the Executive will
be granted additional options effective as of January 2, 1999 as shall be
determined in the absolute sole discretion of the Compensation Committee of
the Board of Directors of the Company.
4. Expenses; Vacations. The Executive shall be entitled to
reimbursement for reasonable travel and other out-of-pocket expenses
necessarily incurred in the performance of his duties hereunder, upon
submission and approval of written statements and bills in accordance with
the then regular procedures of the Company. The Executive shall be entitled
to reasonable vacation time in accordance with then regular procedures of the
Company governing executives as determined from time to time by the Company's
Board of Directors but in no event less than twenty-five days per year.
5. Representations and Warranties of Employee. The Executive
represents and warrants to the Company that (a) he is under no contractual or
other restriction or obligation which is inconsistent with the execution of
this Agreement, the performance of his duties hereunder, or the other rights
of the Company hereunder; and (b) he is under no physical or mental
disability that would hinder his performance of duties under this Agreement.
6. Non-Competition. The Executive agrees that he will not (a) during
the period he is employed under this Agreement engage in, or otherwise
directly or indirectly be employed by, or act as a consultant or lender to,
be a director, officer, employee, owner, or partner of, any other business
or organization that is or shall then be competing with the Company, and (b)
for a period of two (2) years after he ceases to be employed by the Company
under this Agreement, directly or indirectly compete with or be engaged in
the same business as the Company, or be employed by, or act as consultant or
lender to, or be a director, officer, employee, owner, or partner of, any
business or organization which at the time of such cessation, competes with
or is engaged in the same business as the Company, except that in each case
the provisions of this Section 6 will not be deemed breached merely because
the Executive owns not more than five percent (5.0%) of the outstanding
common stock of a corporation, if, at the time of its acquisition by the
Executive, such stock is listed on a national securities exchange, is
reported on NASDAQ, or is regularly traded in the over-the-counter market by
a member of national securities exchange.
7. Confidential Information. All confidential information which the
Executive may now possess, may obtain during the Employment Term, or may
create prior to the end of the period he is employed by the Company under
this Agreement, relating to the business of the Company or of any customer or
supplier of the Company shall not be published, disclosed, or made accessible
by him to any other person, form, or corporation during the Employment Term
or any time thereafter without the prior written consent of the Company. The
Executive shall return all tangible evidence of such confidential information
to the Company prior to or at the termination of his employment.
8. Termination.
(a) Notwithstanding anything herein contained, if on or after the
date hereof and prior to the end of the Employment Term, the Executive is
terminated "For Cause" (as defined below) then the Company shall have the
right to give notice of termination of Employee's services hereunder as of a
date to be specified in such notice, and this Agreement shall terminate on
the date so specified. Termination "For Cause" shall mean the Executive
shall (i) be convicted of a felony crime, (ii) commit any act or omit to take
any action in bad faith and to the detriment of the Company, (iii) commit an
act of moral turpitude, (iv) commit an act of fraud against the Company, or
(v) materially breach any term of this Agreement and fail to correct such
breach within thirty (30) days after commission thereof.
(b) In the event that the Executive shall be physically or mentally
incapacitated or disabled or otherwise unable fully to discharge his duties
hereunder for a period of six months, then this Agreement shall terminate
upon 90 days' written notice to the Executive, and no further compensation
shall be payable to the Executive, except as may otherwise be provided under
any disability insurance policy.
(c) In the event that the Executive shall die, then this Agreement
shall terminate on the date of the Executive's death, and no further
compensation shall be payable to the Executive, except as may otherwise be
provided under any insurance policy or similar instrument.
(d) In the event that this Agreement is terminated "For Cause"
pursuant to Section 9(a), then the Executive shall be entitled to receive
only his Base Salary at the rate provided in Section 3 to the date on which
termination shall take effect.
(e) In the event this Agreement is terminated by the Company other
than the reasons set forth in Sections 8(a) or 8(b) or upon a Section 9
Event, the Executive shall be entitled to receive severance pay consisting of
a lump sum distribution (with no present value adjustment) equal to the Base
Salary at the rate provided in Section 3 plus the Bonus (fixed at the rate of
50% of such Base Salary) for the greater of (i) two (2) years,
notwithstanding that such two-year period might extend beyond the Employment
Term or (i) the remainder of the Employment Term. In such case any of the
Executive's issued but unvested options (including the Options described in
this Agreement) shall vest immediately upon such termination. In addition,
in such case the two (2) year period described in Section 6(b) of this
Agreement shall be reduced to one (1) year.
(f) Nothing contained in this Section 8 shall be deemed to limit
any other right the Company may have to terminate Employee's employment
hereunder upon any ground permitted by law.
9. Change of Control.
In the event of a future disposition of (or including) the
properties and business of the Company, substantially as an entirety, by
merger, consolidation, sale of assets, or otherwise, the Company shall assign
this letter and all of its rights and obligations hereunder to the acquiring
or surviving corporation, such corporation shall assume in writing all of the
obligations of the Company, and the Company (in the event and so long as it
remains in business as an independent going enterprise) shall remain liable
for the performance of its obligations hereunder in the event of an
unjustified failure of the acquiring corporation to perform its obligations
under this letter.
Notwithstanding the foregoing, in any such event, or in the event of
the acquisition by any person or group of persons acting in concert (other
than Allan R. Tessler or Alan J. Hirschfield) of shares of capital stock of
the Company enabling such person or persons to cast 20% or more of the votes
entitled to be voted at any meeting to elect directors (each such event of
disposition or acquisition of stock being hereinafter referred to as a
"Section 9 Event"), the Executive or the Company shall have the right to
terminate this Agreement by written notice given within six (6) months of the
date (the "Section 9 Date") of such Section 9 Event. Upon such termination,
the Executive shall receive severance pay consisting of a single lump sum
distribution (with no present value adjustment) equal to the Base Salary as
provided in Section 3 plus the Bonus (fixed at the rate of 50% of such Base
Salary) for the greater of (i) two (2) years, notwithstanding that such two-
year period might extend beyond the Employment Term or (ii) the remainder of
the Employment Term. Upon such Section 9 Event, any of the Executive's
issued but unvested options (including the options described in this
Agreement) shall vest immediately upon such Section 9 Event. In addition,
upon such Section 9 Event the Executive shall receive an amount equal to the
per share price paid to the stockholders of the Company less the Pre-
Announcement Price multiplied by 125,000.
10. Survival. The covenants, agreements, representations, and
warranties contained in or made pursuant to this Agreement shall survive the
Executive's termination of employment, irrespective of any investigation made
by or on behalf of any party.
11. Modification. This Agreement sets forth the entire understanding
of the parties with respect to the subject matter hereof, supersedes all
existing agreements between them concerning such subject matter, and may be
modified only by a written instrument duly executed by each party.
12. Notices. Any notice or other communication required or permitted
to be given hereunder shall be in writing and shall be mailed by certified
mail, return receipt requested, or delivered against receipt to the party to
whom it is to be given at the address of such party set forth in the preamble
to this Agreement (or to such other address as the party shall have furnished
in writing in accordance with the provisions of this Section 12). In the
case of a notice to the Company, a copy of such notice (which copy shall not
constitute notice) shall be delivered to Camhy Karlinsky & Stein LLP, 1740
Broadway, New York, New York 10019-4315, Attn. Alan I. Annex, Esq. Notice to
the estate of the Executive shall be sufficient if addressed to the Executive
provided in this Section 12. Any notice or other communication given by
certified mail shall be deemed given at the time of certification thereof,
except for a notice changing a party's address which shall be deemed given at
the time of receipt thereof.
13. Waiver. Any waiver by either party of a breach of any provision of
this Agreement shall not operate as or be construed to be a waiver of any
other breach of such provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any
term of this Agreement on one or more occasions shall not be considered a
waiver or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement. Any waiver must
be in writing.
14. Binding Effect. The Executive's rights and obligations under this
Agreement shall not be transferable by assignment or otherwise, such rights
shall not be subject to encumbrance or the claims of the Executive's
creditors, and any attempt to do any of the foregoing shall be void. The
provisions of this Agreement shall be binding upon and inure to the benefit
of the Executive and his heirs and personal representatives, and shall be
binding upon and inure to the benefit of the Company and its successors and
those who are its assigns under Section 9.
15. Headings. The headings in this Agreement are solely for the
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
16. Counterparts; Governing Law. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. It shall be
governed by, and construed in accordance with, the laws of the State of
Wyoming, without given effect to the rules governing the conflicts of laws.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first written above.
DATA BROADCASTING CORPORATION
By: /s/ Mark F. Imperiale
Name: Mark F. Imperiale
Title: President
/s/ Allan R. Tessler
Name: Allan R. Tessler