AGREEMENT
This AGREEMENT (this "Agreement") dated as of November 1, 2003, is
between meVC Draper Fisher Jurvetson Fund I, Inc. (the "Company") and Michael
Tokarz ("Tokarz") (each, a "Party" and together, the "Parties").
WHEREAS, the Company desires to engage the services of Tokarz and
Tokarz desires to be engaged by the Company.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. ENGAGEMENT AND ACCEPTANCE. The Company hereby engages Tokarz, and
Tokarz hereby agrees to perform services for the Company as described in Section
2, in accordance with the terms and conditions hereof, for a term commencing as
of November 1, 2003, and continuing until October 31, 2005, or such later date
as mutually agreed to by the parties (the "Management Term").
2. DUTIES DURING THE MANAGEMENT TERM. During the Management Term,
Tokarz will serve in the capacity of (a) Chairman of the Company, the most
senior executive officer of the Company; provided that, in the event he is not
duly elected as a Director of the Company at the Company's 2004 Annual Meeting,
he shall continue to function as the senior most executive officer of the
Company (but under a different title to be determined by the Board of
Directors); and (b) Portfolio Manager. Tokarz shall report solely and directly
to the Board of Directors of the Company (the "Board"). Subject to the oversight
of the Board, Tokarz will be responsible for management of the Company's
operations and business affairs, including but not limited to (i) implementing
the Company's investment objectives and strategies as set forth in the Company's
registration statement, as such objectives and strategies have been amended or
may be amended, by the Board; and (ii) retaining staff and office space and
procuring services as appropriate and reasonably necessary to carry out the
business of the Company. Tokarz will have such authority and responsibilities as
are customarily performed by one holding such positions in the same or similar
businesses or enterprises as those of the Company. During the Management Term,
the Company will establish office space at a location and on such terms as is
approved by the Board. Following the expiration of the Management Term, Tokarz
shall not be a director, officer or employee of the Company and shall have none
of the authority or responsibilities described in this Section 2.
3. COMPENSATION.
3.1 For his services hereunder, following the completion of any
Fiscal Year in which any portion of the Management Term is in effect, the
Company will pay Tokarz an amount equal to the lesser of (a) 20% of the
Company's net income for the Fiscal Year; or (b) the sum of (i) 20% of the net
capital gains realized by the Company during the Management Term with respect
to Tokarz Investments, less any amounts previously paid to Tokarz pursuant to
this sub-clause (b)(i); and (ii) the amount, if any, by which the Company's
total expenses for the Compensation Period were less than two percent of the
Company's net assets as of the last day of the Compensation Period. Any
payments to be made under this Section 3.1 shall be calculated based upon the
completed audited financials of the Company for the applicable Fiscal Year and
shall be paid as soon as practicable following the completion of such audit.
Payments under this Section 3.1 are referred to herein as "Compensation." For
purposes of this Agreement: (a) "Fiscal Year" means a fiscal year of the
Company, which is currently a 12-month period ending on October 31; and (b)
"Compensation Period" means (i) the applicable Fiscal Year, and (ii) if the
Management Term is terminated other than on the last day of a Fiscal Year, the
period from the commencement of such Fiscal Year through the date of such
termination; and (c) "Tokarz Investment" means an investment made by the
Company during the Management Term, other than investments pending at the
commencement of the Management Term and any investments made during the
Management Term by the Company over the written objection of Tokarz.
3.2 In the event net capital gains are realized on Tokarz
Investments disposed of after the Management Term, Tokarz will be eligible to
receive a percentage of the net realized capital gains from each Tokarz
Investment that is disposed of after the end of the Management Term in
accordance with the schedule set forth in Exhibit A hereto (the "Post Term
Payments"). The Post Term Payments, if any, shall be payable following the
Company's receipt of the audited financial statements for the Fiscal Year in
which the Tokarz Investment realized such a net capital gain.
3.3 Compensation shall be calculated by the Company based on the
Company's audited financial statements for the applicable Fiscal Year and shall
be paid to Tokarz promptly after the Company's receipt of such audited financial
statements. The aggregate amount of Compensation and Post Term Payments shall
not exceed (a) 20% of the net capital gains realized by the Company with respect
to Tokarz Investments plus (b) the amount, if any, by which the Company's total
expenses for the last Fiscal Year of the Management Term were less than two
percent of the Company's net assets as of the last day of the Management Term
(the "Limitation"). Following the first anniversary of the termination of the
Management Term, and at least once every Fiscal Year thereafter, the Company
shall determine, on a cumulative basis, based on the audited financial
statements for the Company, whether the aggregate amount of Compensation and
Post Term Payments exceeded the Limitation (the "Excess"). Tokarz shall return
to the Company within 30 business days of a request therefor an amount equal to
the Excess (but in no event greater than an amount equal to the aggregate
Compensation and the Post Term Payments).
3.4 During the Management Term, Tokarz shall be entitled to
receive reimbursement for all reasonable and appropriate business expenses
incurred by him in connection with his duties under this Agreement in
accordance with the policies of the Company as in effect from time to time.
3.5 Tokarz may direct a portion of the Compensation and the Post
Term Payments to active employees of the Company designated by Tokarz as part of
their compensation packages during their employment. For the avoidance of doubt,
Tokarz may not require the Company to direct or cause to be paid a portion of
the Compensation or the Post Term Payments to any individual who is no longer an
employee or officer of the Company at the time of such payment. This paragraph
shall not affect Tokarz's obligation to return the Excess in accordance with
Section 3.3 herein.
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3.6 Notwithstanding the foregoing, in the event of a termination
of Tokarz's services during the Management Term, the Company's obligation to
continue to pay Compensation and Post Term Payments as set forth in this
Section 3 shall terminate except as provided for in Section 4 of this Agreement.
3.7 The Company agrees at all times to remain qualified as a
"regulated investment company" as defined in Section 851 ET SEQ of the Internal
Revenue Code of 1986, as amended, and to take all steps and actions necessary to
maintain such status, including, without limitation to make such elections,
registrations, investments and distributions necessary to maintain status as a
regulated investment company. The Company agrees that if it shall fail to
qualify as a regulated investment company for any reason, net income of the
Company for purposes of this Section 3 shall nonetheless be calculated as if the
Company were at all times qualified as a regulated investment company.
4. TERMINATION.
4.1 If the Management Term is terminated by the Company without
Cause, by Tokarz for Good Reason, or due to Tokarz's death or Disability,
Tokarz shall be entitled to (i) Compensation through the date of such
termination determined in accordance with Section 3.1, (ii) Post Term Payments
in accordance with Section 3.2, and (iii) reimbursement, pursuant to Section
3.4, of business expenses incurred by him to the date of such termination.
4.2 If, in the first Fiscal Year of the Management Term, the
Management Term is terminated by Tokarz without Good Reason, Tokarz shall only
be entitled to (i) Compensation through the date of such termination determined
in accordance with Section 3.1; (ii) Post-Term Payments in accordance with
Section 3.2, PROVIDED THAT, NOTWITHSTANDING THE SCHEDULE IN EXHIBIT A, any
such payments respecting a Tokarz Investment shall equal 16% of the net capital
gains realized on that Tokarz Investment; and (iii) reimbursement, pursuant to
Section 3.4, of expenses incurred by him to the date of such termination.
4.3 If this agreement is terminated by the Company for Cause, the
Company's only obligation to Tokarz shall be (i) Compensation through the date
of such termination determined in accordance with Section 3.1; and (ii)
reimbursement, pursuant to Section 3.4, of expenses incurred by him to the date
of such termination.
4.4 Unless otherwise agreed to, in writing, by the Parties, upon
the termination of the Management Term for any reason, Tokarz shall be deemed to
have contemporaneously resigned (i) if a member, from the Board or any other
board to which he has been appointed or nominated by or on behalf of the
Company; and (ii) from all his positions with as an officer or employee of the
Company.
4.5 For the purposes of this Agreement, "Cause" means (i)
commission of a felony by Tokarz that affects the Company materially or is
related, directly or indirectly, to the performance of any of Tokarz's duties
or obligations hereunder, (ii) acts of dishonesty by Tokarz resulting or
intending to result in personal gain or enrichment at the material expense of
the Company, (iii) conduct by Tokarz in connection with his duties hereunder
that is fraudulent, unlawful, or grossly negligent, or (iv) conduct which
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constitutes a violation of applicable employment, labor or securities laws or
related regulations (including but not limited to those of the New York Stock
Exchange).
4.6 For the purposes of this Agreement, "Good Reason" means,
without Tokarz's consent, (i) a material adverse reduction in Tokarz's
responsibilities, position or duties or (ii) the Company's material breach of
the Agreement. The Company shall have thirty (30) days after receipt of notice
from Tokarz in writing specifying the deficiency to cure the deficiency that
would result in Good Reason.
4.7 This Agreement may be terminated by either Party at any time
upon at least thirty (30) days' written notice to the other Party.
5. RESTRICTIONS AND OBLIGATIONS OF TOKARZ.
5.1 CONFIDENTIALITY.
(a) During the course of Tokarz's services under this
Agreement and in connection with carrying out his duties hereunder, Tokarz will
have access to certain material non-public information relating to the Company
which is not readily available from sources outside the Company. The
confidential and proprietary information, in any material respect, of the
Company are among its most valuable assets, including but not limited to,
information about business contacts, transactions, contracts, intellectual
property, finances, personnel, clients, investment and competitive strategies,
frameworks, or models, sales, financial, marketing, training and technical
programs. The Company invested, and continues to invest, considerable amounts
of time and money in its process, technology, know-how, obtaining and
developing the goodwill of its customers, its other external relationships, its
data systems and data bases, and all the information described above
(hereinafter collectively referred to as "Confidential Information"), and any
misappropriation or unauthorized disclosure of Confidential Information in any
form would irreparably harm the Company. Tokarz acknowledges that such
Confidential Information constitutes valuable, highly confidential, special and
unique property of the Company. Tokarz shall hold in a fiduciary capacity for
the benefit of the Company all Confidential Information which shall have been
obtained by Tokarz in connection with his services under this Agreement which
shall not be or become public knowledge (except for any information that is
public information, other than information that becomes public information as a
result of acts by Tokarz or representatives of Tokarz in violation of this
Agreement). Confidential Information shall not include specific items which
have become publicly available other than through Tokarz's unauthorized
disclosure. Except as required by law or an order of a court or governmental
agency with jurisdiction, Tokarz shall not, during the Management Term or at
any time thereafter, disclose any Confidential Information, directly or
indirectly, to any person or entity for any reason or purpose whatsoever, nor
shall Tokarz use it in any way, except in the course of his services under this
Agreement or to enforce any rights or defend any claims hereunder or under any
other agreement to which Tokarz is a party, provided that such disclosure is
relevant to the enforcement of such rights or defense of such claims and is
only disclosed in the formal proceedings related thereto. Tokarz shall take all
reasonable steps to safeguard the Confidential Information and to protect it
against disclosure, misuse, espionage, loss and theft. Tokarz understands and
agrees that Tokarz shall acquire no rights to any such Confidential Information.
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(b) All files, records, documents, drawings,
specifications, data, computer programs, evaluation mechanisms and analytics and
similar items relating thereto or to the business of the Company, as well as all
investor lists, specific customer information, compilations of product research
and marketing techniques of the Company whether prepared by Tokarz or otherwise
coming into Tokarz's possession in connection with his services under this
Agreement, shall remain the exclusive property of the Company, and Tokarz shall
not remove any such items from the premises of the Company, except in
furtherance of Tokarz's duties under this Agreement.
(c) As requested by the Company and at the Company's
expense, from time to time and upon the termination of his services under this
Agreement, Tokarz will promptly deliver to the Company all copies and
embodiments, in whatever form, of all Confidential Information in Tokarz's
possession or within his control (including, but not limited to, memoranda,
records, notes, plans, photographs, manuals, notebooks, documentation, program
listings, flow charts, magnetic media, disks, diskettes, tapes and all other
materials containing any Confidential Information) irrespective of the location
or form of such material. If requested by the Company, Tokarz will provide the
Company with written confirmation that all such materials have been delivered
to the Company as provided herein.
5.2 NON-SOLICITATION OR HIRE OF EMPLOYEES. During the Management
Term and for a period of 12 months following the termination of the Management
Term (for any reason), Tokarz shall not directly or indirectly solicit or
attempt to solicit, any employee of the Company or any person who was an
employee of the Company during the 12-month period immediately prior to the
relevant date to terminate such employee's employment relationship with the
Company in order, in either case, to enter into a similar relationship with
Tokarz, or any other person or any entity in competition with the business of
the Company. The Company realizes that, during the Management Term, Tokarz will
recruit other professionals to be employed by the Company and that certain of
these professionals will be individuals with whom Tokarz has an existing or
prior professional relationship and/or individuals who will agree to be employed
by the Company because of the opportunity to work with Tokarz (collectively,
"Tokarz Recruits"). Notwithstanding anything in this Section 5.2 to the
contrary, neither the resignation of the Tokarz Recruits from the Company nor
Tokarz's subsequent hiring of, or association with, a Tokarz Recruit, shall
constitute, in and of itself, a breach of the Agreement without further evidence
of a solicitation by Tokarz.
5.3 PROPERTY. Tokarz acknowledges that all originals and copies
of materials, records and documents generated by him or coming into his
possession during his employment by the Company and prepared or received in
connection with carrying out his responsibilities for the Company are the sole
property of the Company ("Company Property"). During the Term, and at all times
thereafter, Tokarz shall not remove, or cause to be removed, from the premises
of the Company, copies of any record, file, memorandum, document, computer
related information or equipment, or any other item relating to the business of
the Company, except in furtherance of his duties under the Agreement. When
Tokarz's employment with the Company terminates, or upon request of the Company
at any time, Tokarz shall promptly deliver to the Company all copies of Company
Property in his possession or control.
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5.4 REMEDIES; SPECIFIC PERFORMANCE. The Parties acknowledge and
agree that Tokarz's breach or threatened breach of any of the restrictions set
forth in this Section 5 will result in irreparable and continuing damage to the
Company for which there may be no adequate remedy at law and that the Company
shall be entitled to equitable relief, including specific performance and
injunctive relief as remedies for any such breach or threatened or attempted
breach. Tokarz hereby consents to the grant of an injunction (temporary or
otherwise) against Tokarz or the entry of any other court order against Tokarz
prohibiting and enjoining him from violating, or directing him to comply with
any provision of this Section 5. Tokarz also agrees that such remedies shall be
in addition to any and all remedies, including damages, available to the Company
against him for such breaches or threatened or attempted breaches. In addition,
without limiting the Company's remedies for any breach of any restriction on
Tokarz set forth in this Section 5, except as required by law, Tokarz shall not
be entitled to any payments set forth in Section 3.2 hereof if Tokarz breaches
the covenants applicable to Tokarz contained in this Section 5. Tokarz will
immediately return to the Company any such payments previously received under
Section 3.2 and upon such a breach, and, in the event of such breach, the
Company will have no obligation to pay any of the amounts that remain payable by
the Company under Section 3.2.
6. CERTAIN UNDERSTANDINGS AND AGREEMENTS
6.1 The Company realizes that Tokarz has an extensive background
in effecting corporate transactions for himself and his affiliated entities,
in participation with others, and on behalf of others. The Company realizes
that, due to the extent of his background, Tokarz has a variety of business
interests and relationships with respect to such transaction activities that
are ongoing. The Company understands that Tokarz is not prepared to terminate
these interests, relationships or activities in order to enter into this
Agreement. After due consideration of these factors and in consideration of the
powers conferred under Section 122(17) of the Delaware General Corporation Law,
the Company has determined that the benefits to the Company from Tokarz's
services under this Agreement outweigh any detriment to the Company from the
pursuit by Tokarz of such other interests, relationships or activities while
serving under this Agreement. Accordingly, the Company and Tokarz have reached
the agreements contained in this Section 6.
6.2 During the Management Term, Tokarz shall not be required to
devote his full business time and attention to his duties under this Agreement,
but shall devote such time as he believes, in his judgment, is necessary to
fulfill his obligations under this Agreement. In this regard, the Company has
determined to rely on Tokarz's professionalism and his determination with such
matters and any such determination shall not subject Tokarz to any liability
under this Agreement, although the Company retains the right to terminate this
Agreement as provided herein.
6.3 The Company realizes that in the course of his activities
during the Management Term, Tokarz may identify, develop or become aware of
investment opportunities that are suitable for the Company ("Opportunities").
Opportunities may also be suitable investments for Tokarz or other entities in
which Tokarz has an interest or others with whom Tokarz has a relationship
(collectively, "Other Parties"). Tokarz agrees that any Opportunities that come
to him from a director, officer or employee of the Company or which are
submitted to him during the Management Term in his capacity as a officer or
director of the Company or which are primarily investments in debt securities
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(including debt securities, and any mezzanine investment, including mezzanine
investments with an equity component) shall be Opportunities of the Company
("Company Opportunities"), and Tokarz will not pursue any such Company
Opportunity with any Other Parties, unless (i) Tokarz shall have determined
that such Company Opportunity is not suitable for the Company and (ii) the
Board shall have concurred with such determination. With respect to all other
Opportunities other than Company Opportunities, Tokarz shall have no obligation
to offer such Opportunity to the Company and shall use his own judgment in
determining whether to allocate such Opportunity to the Company or to Other
Parties, and Tokarz shall have no liability to the Company with respect to any
such allocation. Notwithstanding the foregoing, Tokarz may pursue a Company
Opportunity on behalf of both the Company and the Other Parties, subject to
compliance with applicable law, regulation and any applicable order granted by
the Securities and Exchange Commission.
7. OTHER PROVISIONS.
7.1 NOTICES. Any notice or other communication required or which
may be given hereunder shall be in writing and shall be delivered personally,
telegraphed, telexed, sent by facsimile transmission or sent by certified,
registered or express mail, postage prepaid, and shall be deemed given when so
delivered personally, telegraphed, telexed, or sent by facsimile transmission
or, if mailed, four (4) days after the date of mailing, as follows:
(a) If the Company, to:
Robert Knapp
C/O Millennium Partners L.P.
666 Fifth Avenue
New York, NY 10103
and
Schulte Roth & Zabel LLP
919 Third Avenue
New York, NY 10022
Attention: Kenneth S. Gerstein, Esq.
Telephone: (212) 756-2000
Fax: (212) 593-5955
(a) If Tokarz, to:
Michael Tokarz
The Tokarz Group, LLC
Riverview at Purchase
287 Bowman
Purchase, NY 10577
and
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Wildman, Harrold, Allen & Dixon LLP
225 W. Wacker Drive
Chicago, Illinois 60606
Attention: John L. Eisel, Esq.
Telephone: (312) 201-2000
Fax: (312) 201-2555
7.2. ENTIRE AGREEMENT. This Agreement contains the entire
agreement between the Parties with respect to the subject matter hereof and
supersedes all prior agreements, written or oral, with respect thereto.
7.3 REPRESENTATIONS AND WARRANTIES BY TOKARZ. Tokarz represents
and warrants that he is not a party to or subject to any restrictive covenants,
legal restrictions or other agreements in favor of any entity or person which
would in any way preclude, inhibit, impair or limit Tokarz's ability to perform
his obligations under this Agreement, including, but not limited to,
non-competition agreements, non-solicitation agreements or confidentiality
agreements.
7.4 WAIVER AND AMENDMENTS. This Agreement may be amended,
modified, superseded, canceled, renewed or extended, and the terms and
conditions hereof may be waived, only by a written instrument signed by the
Parties or, in the case of a waiver, by the party waiving compliance. No delay
on the part of any party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any waiver on the part of any
right, power or privilege hereunder, nor any single or partial exercise of any
right, power or privilege hereunder, preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder.
7.5 GOVERNING LAW, DISPUTE RESOLUTION AND VENUE. This Agreement
shall be governed and construed in accordance with the laws of the State of New
York applicable to agreements made and not to be performed entirely within such
state, without regard to conflicts of laws principles. The Parties hereto
irrevocably agree to submit to the jurisdiction and venue of the courts of the
State of New York, in any action or proceeding brought with respect to or in
connection with the Agreement.
7.6 ASSIGNABILITY BY THE COMPANY AND TOKARZ. This Agreement, and
the rights and obligations hereunder, may not be assigned by the Parties without
written consent signed by the Parties. This Agreement shall not bind successors
of the Company unless agreed to in writing by Tokarz.
7.7 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original but all of which shall constitute one
and the same instrument.
7.8 HEADINGS. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning of terms
contained herein.
7.9 SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement, or any part thereof, is held by a court of
competent jurisdiction of any foreign, federal, state, county or local
government or any other governmental, regulatory or administrative agency or
authority to be invalid, void, unenforceable or against public policy for any
reason, the remainder of the terms, provisions, covenants and restrictions of
this Agreement shall remain in full force and effect and shall in no way be
affected or impaired or invalidated. Tokarz acknowledges that the restrictive
covenants contained in Section 5 are a condition of this Agreement and are
reasonable and valid in temporal scope and in all other respects.
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7.10 JUDICIAL MODIFICATION. If any court determines that any of
the covenants in Section 5, or any part of any of them, is invalid or
unenforceable, the remainder of such covenants and parts thereof shall not
thereby be affected and shall be given full effect, without regard to the
invalid portion. If any court or arbitrator determines that any of such
covenants, or any part thereof, is invalid or unenforceable because of the
geographic or temporal scope of such provision, such court or arbitrator shall
reduce such scope to the minimum extent necessary to make such covenants valid
and enforceable.
7.11 TAX WITHHOLDING. The Company or other payor is authorized to
withhold from any benefit provided or payment due hereunder, the amount of
withholding taxes due any federal, state or local authority in respect of such
benefit or payment and to take such other action as may be necessary in the
opinion of the Board to satisfy all obligations for the payment of such
withholding taxes.
IN WITNESS WHEREOF, the Parties hereto, intending to be
legally bound hereby, have executed this Agreement as of the day and year first
above mentioned.
/s/ Michael Tokarz
------------------------------------
Michael Tokarz
MEVC DRAPER FISHER JURVETSON FUND I, INC.
By: /s/ Robert S. Everett
--------------------------------
Name: Robert S. Everett
Title: Chief Executive Officer
Time of Disposition Tokarz % of Net Gains
following termination of the
Management Term
- ----------------------------------------- ---------------------------------
Prior to the first anniversary of the 19%
termination of the Management Term
On or after the first anniversary of the 18%
termination of the Management Term and
prior to the second anniversary of the
termination of the Management Term
On or after the second anniversary of the 17%
termination of the Management Term and
prior to the third anniversary of the
termination of the Management Term
On or after the third anniversary of the 16%
termination of the Management Term
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