Exhibit 10.25
EMPLOYMENT AGREEMENT
AGREEMENT made as of this 3rd day of September, 1996, by and between Michael
E. Kolowich (the "Employee") and Individual, Inc., a Delaware corporation with a
principal place of business at Burlington, Massachusetts (the "Company").
WHEREAS, the Company believes it to be to its advantage to employ the
Employee to render services to the Company as hereinafter provided; and
WHEREAS, the Employee desires to accept employment with the Company in a
senior executive capacity as hereinafter provided; and
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in consideration of the mutual
covenants and obligations herein contained, the parties hereto agree as follows:
1. Position and Responsibilities.
-----------------------------
(A) President and Chief Executive Officer. During the term of this
-------------------------------------
Agreement, the Company agrees to employ the Employee, and the Employee agrees
to serve, as President and Chief Executive Officer of the Company. The
Employee shall at all times report to, and his activities shall at all times
be subject to the direction and control of, the Board of Directors of the
Company (the "Board", which term shall include, for purposes of this
Agreement, any committee to which the Board may have delegated its authority
with respect to matters covered by this Agreement); and the Employee shall
exercise such powers and comply with and perform, faithfully and to the best
of his ability and according to his honest business judgment, such
directions and duties in relation to the business and affairs of the Company
as may from time to time be vested in or requested of him by the Board. The
Employee agrees to devote substantially all of his business time, attention
and services to the diligent, faithful and competent discharge of such duties
for the successful operation of the Company's business. Any business
activity that the Employee wishes to engage in on his own time can be
undertaken only with the approval of the Board, but in no event may such an
activity conflict or compete with any interest of the Company or interfere
with the Employee's performance of his duties hereunder. During the term
hereof, Employee will not have any managerial or operational responsibility,
other than service on a board of directors, in any enterprise, firm,
corporation, trust or other business entity other than the Company; provided,
however, that nothing herein shall prevent the ownership by the Employee of
an equity interest in any business entity, provided that such ownership does
not involve any managerial or operational responsibility other than serving
on the board of directors. Any directorships of corporations other than the
Company must be approved in writing by the Board in advance, with the
exception of directorships or similar positions with charitable and
professional organizations or family-owned trusts or businesses (provided
that such activities do not interfere with Employee's performance of his
duties hereunder). A list of directorships and similar positions presently
held by the Employee is set forth on Annex A hereto.
-------
(B) Director Nomination. The Board shall nominate and appoint the
-------------------
Employee as a director of the Company; and not later than December 31, 1996
the Board will consider Employee's election as Chairman of the Board.
Thereafter, during the term of this Agreement, the
2
Board shall designate and nominate the Employee as a director of the Company
and, if elected by the stockholders of the Company, the Employee shall accept
such position and diligently perform the duties arising from such position.
2. Compensation: Salary, Bonuses, Equity Participation and Other Benefits.
----------------------------------------------------------------------
During the term of this Agreement, the Company shall pay the Employee the
following compensation, including the following salary, bonus and other fringe
benefits:
(A) Salary. In consideration of the services to be rendered by the
------
Employee to the Company, the Company initially will pay to the Employee an
annual salary of $170,000 (the Employee's "base rate"). Such salary shall be
payable in conformity with the Company's customary practices for executive
compensation as such practices shall be established or modified from time to
time. Salary payments shall be subject to all applicable federal and state
withholding, payroll and other taxes. Commencing September 1, 1997 and on or
about each anniversary of such date thereafter while this Agreement is in
effect, the Board and the Employee shall in good faith review the performance
by, and the compensation to, the Employee for the prior 12-month period and
the proposed performance by, and compensation to, the Employee for the
forthcoming 12-month period. Based on such review, the Board may, in its
discretion, adjust the base rate, provided, however, that Employee's base
rate shall not be lower than $170,000. The Employee will be entitled to four
weeks of paid vacation each year, to be taken in accordance with the
Company's customary vacation policies applicable to executive employees.
(B) Fringe Benefits. The Employee will be entitled to be reimbursed for
---------------
all of his business-related travel and other business-related expenses in
accordance with the Company's policies from time to time in effect and will
also be furnished by the Company with a cellular telephone and service, at
the Company's expense. The Employee will also be entitled to participate on
the same basis with all other management employees of the Company in the
Company's standard benefits package generally available for all other
officers and employees of the Company, with respect to group health,
disability and life insurance programs. The Company will reimburse the
Employee for professional services (in an amount not to exceed $15,000 for
the first year of this Agreement and $7,500 per year thereafter) in
connection with: tax planning and tax return preparation; financial and
estate planning; and legal services relating to Employee's employment with
the Company, including services in connection with entering into this
Agreement (including those incurred prior to the execution of this Agreement)
and any amendments thereto (but in no event for legal services related to any
employment-related or other dispute with the Company).
(C) Incentive Bonus. During the term of this Agreement, in addition
---------------
to the amounts payable under Section 2(A) above, the Employee shall be
eligible to receive a target bonus of $80,000 for the period from January 1,
1997 to December 31, 1997 (the "1997 Target Bonus") and a target bonus in an
amount to be agreed upon by the Employee and the Board for each successive
twelve-month period thereafter ("Year End"), provided the Employee continues
to be employed by the Company on each such Year End. Of the 1997 Target
Bonus, up to $30,000 shall be payable at the discretion of the Board. In
addition, $50,000 of the 1997 Target Bonus shall be based on the Company's
achievement of the financial goals and objectives for the Company that shall
be set by the mutual agreement of Board and the Employee for such fiscal
year, based upon measurement of revenue growth. The financial goals and
objectives for 1998 and thereafter shall be based, among other matters, upon
agreed upon measurements of profitability or return on investment. The
amount of the incentive bonus plan for any fiscal year shall provide that the
Employee may earn a bonus greater than the target bonus if he exceeds the
annual goals and objectives. For the partial fiscal year ending December 31,
1996, the Employee will be eligible to receive a bonus of up to $26,700
3
payable at the discretion of the Board. The amount of bonus payments payable
to the Employee under this Section 2(C) and the satisfaction of the goals and
objectives established by the Board shall be determined promptly and
reasonably by the Board, and, if achieved, such bonus payments shall be paid
within 100 days after each Year End. All such bonus payments shall be made
in the form of Common Stock of the Company, which shall be valued for such
purpose at the fair market value thereof on the first day of the applicable
fiscal year (or partial fiscal year) for which the bonus has been achieved.
Such bonus payments shall be subject to all applicable federal, state and
local withholding, payroll and other taxes, as required by law.
(D) Long-Term Disability Insurance. In addition to any disability
------------------------------
insurance provided by the Company pursuant to Section 2(B), the Company shall
use reasonable commercial efforts to obtain and to provide the Employee with
long-term disability insurance to the extent necessary (together with the
disability insurance provided pursuant to Section 2(B), if any) to replace
three-quarters of the Employee's base rate of salary and targeted incentive
bonuses set forth in Sections 2(A) and Section 2(C). Such long-term
disability insurance shall be provided under a policy selected by the
Employee offered on a generally available basis by a top-rated national
insurance carrier, which policy shall be reasonably acceptable to the Board.
The Company shall pay the cost of all premiums associated with such
disability insurance. If any such insurance imposes a waiting period prior
to the commencement of benefit payments, the Company will continue to pay the
Employee's base rate of salary and targeted incentive bonuses (to the extent
achieved) for up to three (3) months during such waiting period. To the
extent that any such disability insurance obtained by the Company fails to
provide the amount of coverage described in the first sentence of this
Section 2(D), or imposes a waiting period in excess of three (3) months, in
the event the Employee suffers a disability during the term of his
employment, the Company will pay directly to the Employee as additional
disability benefits for a period of three years beginning with the event of
disability the difference between the benefits actually paid under such
policy and the amount of the coverage required by this Section 2 (D).
3. Equity Participation. The Employee shall be entitled to purchase shares
--------------------
of the Company's Common Stock (the "Equity Interest") as set forth herein. The
Equity Interest shall be divided into two parts consisting of (i) the sale and
purchase of 100,000 shares of the Company's Common Stock (the "Purchased
Shares"), and (ii) the grant of options to purchase 1,000,000 shares of the
Company's Common Stock (the "Option Shares"). The Board and the Employee will
review the Employee's stock option holdings annually to determine whether it is
appropriate to grant additional options to the Employee, taking into account
such factors, among others, as the Employee's percentage ownership of the
Company's outstanding Common Stock. It is the present intention of the parties
that Employee's ownership of the Company's Common Stock through Company-granted
options and other equity awards, including those described in clauses (i) and
(ii) of Section 3(B) below (but without taking into account the Purchased Shares
or options described in clause (iii) of Section 3(B) or any shares purchased by
the Employee in the open market or in other transactions not involving the
Company) remain at a level in excess of 5% of the outstanding Common Stock;
however, the award of any additional options or other equity participation shall
at all times remain in the sole discretion of the Board.
(A) The Purchased Shares. The Company will sell, and the Employee will
--------------------
purchase, the Purchased Shares for $6.00 per share (such purchase price
constituting the reported last sale price of the Common Stock on the Nasdaq
National Market on August 30, 1996). The Employee shall purchase and pay for
the Purchased Shares, in cash, within 15 days of the date of execution of
this Agreement.
4
(B) The Option Shares. The Employee shall be granted, effective the date
-----------------
of this Agreement, incentive and non-qualified stock options to purchase the
Option Shares pursuant to stock option agreements under the Company's 1989
Stock Option Incentive Plan in the following amounts: (i) 66,664 Option
Shares as incentive stock options; (ii) 833,336 Option Shares as non-
qualified stock options; and (iii) an additional 100,000 Option Shares as
non-qualified options subject to the additional terms set forth in clause (v)
of Section 3(C) below. The exercise price for all such options shall be $6.00
per share (such exercise price constituting the reported last sale price of
the Common Stock on the Nasdaq National Market on August 30, 1996).
(C) Option Terms. The incentive and non-qualified options covering the
------------
Option Shares shall be issued under the Company's Amended and Restated 1989
Stock Plan, pursuant to the Company's standard incentive and non-qualified
stock option agreements thereunder, copies of which are incorporated herein
by reference, subject to the following additional terms: (i) all options
shall be for a term of ten (10) years; (ii) all options will vest in 48 equal
consecutive monthly installments; (iii) all options will become automatically
exercisable in full upon a change of control of the Company, subject only to
restrictions applicable under pooling-of-interests accounting rules if
applicable; (iv) the options described in clauses (i) and (ii) of Section
3(B) above will become automatically exercisable for 25% of the total number
of Option Shares subject thereto (in addition to the Option Shares for which
such options may already be exercisable) in the event that the Employee's
employment with the Company terminates pursuant to clause (i) of Section 4 or
Section 5 (C); and (v) the options described in clause (iii) of Section 3(B)
above will become automatically exercisable in full in the event that the
Employee's employment with the Company terminates pursuant to clause (i) of
Section 4 or Section 5 (C), or if such employment terminates pursuant to
Section 5(A) at any time after September 3, 1997.
4. Term. The term of this Agreement shall commence on the date first above
----
written and shall terminate on the earlier to occur of (i) the death or
disability of the Employee, or (ii) the occurrence of any of the circumstances
described in Section 5 hereof (the "Expiration Date"). For the purposes of this
Agreement, "disability" shall have the meaning contained in the long-term
disability policy described in Section 2(D) above.
5. Termination. The Employee's term of employment under this Agreement may
-----------
be terminated pursuant to clause (ii) of the first sentence of Section 4 as
follows:
(A) At the Employee's Option: The Employee may terminate his
------------------------
employment, with or without cause, at any time upon at least thirty (30)
days' advance written notice to the Company.
(B) At the Election of the Company for Cause. The Company may,
----------------------------------------
immediately and unilaterally, terminate the Employee's employment hereunder
"for cause" at any time during the term of this Agreement without any prior
written notice to the Employee. Termination of the Employee's employment by
the Company shall constitute a termination "for cause" under this Section 5
(B) if such termination is for one or more of the following reasons, as
determined by the Board by a resolution duly adopted by a majority of its
members, excluding the Employee:
(i) the substantial and continuing gross and willful breach by the
Employee of his obligations under this Agreement or the
Employee Noncompetition, Nondisclosure and Developments
Agreement described in Section 6 hereof, such breach not having
been cured within 30 days after the Employee's receipt of notice
thereof from the Board, which notice shall set forth in
reasonable detail the nature of such breach; provided, however,
that this subparagraph
5
shall not apply to acts or omissions by the Employee in the
exercise of his honest business judgment;
(ii) the commission by the Employee of an act of fraud, embezzlement,
or substantial and material breach of fiduciary duty; or
(iii) the conviction of the Employee of any felony or of any
misdemeanor involving moral turpitude or misappropriation of
Company property.
In the event of a termination "for cause" pursuant to the provisions of
clauses (i) through (iii) above, inclusive, the Employee shall be entitled to
no severance or other termination benefits except as required by law. In the
event of any such termination of employment, no further vesting of the Option
Shares shall occur from the date of termination.
(C) At the Election of the Company for Reasons Other than for Cause. The
---------------------------------------------------------------
Company may, immediately and unilaterally, terminate the Employee's
employment hereunder at any time during the term of this Agreement without
cause by giving thirty (30) days' advance written notice to the Employee of
the Company's election to terminate. During such thirty-day period, the
Employee will be available on a full-time basis for the benefit of the
Company to assist the Company in making the transition to a new, successor
officer of the Company. In the event the Company exercises its right to
terminate the Employee under this Section 5(C), the Employee's stock options
will be accelerated in accordance with Section 3(C). Except as expressly set
forth in this Section 5(C) or in Section 3(C), the Company shall not have any
further obligations to the Employee in the event of Employee's termination
under this Section 5(C), except such further obligations as may be imposed by
law.
6. Noncompetition, Nondisclosure and Developments Agreement. In connection
--------------------------------------------------------
with his employment by the Company pursuant to the terms of this Agreement, the
Employee shall execute simultaneously herewith the Employee Noncompetition,
Nondisclosure and Developments Agreement attached hereto as Annex B, the terms
-------
and conditions of which are incorporated herein by reference.
7. Consent and Waiver by Third Parties. The Employee hereby represents and
-----------------------------------
warrants that he has obtained all waivers and/or consents from third parties
which are necessary to enable him to enjoy employment with the Company on the
terms and conditions set forth herein and to execute and perform this Agreement
without being in conflict with any other agreement, obligation or understanding
with any such third party. The Employee represents that he is not bound by any
agreement or any other existing or previous business relationship which
conflicts with, or may conflict with, the performance of his obligations
hereunder or prevent the full performance of his duties and obligations
hereunder.
8. Governing Law. This Agreement, the employment relationship contemplated
-------------
herein and any claim arising from such relationship, whether or not arising
under this Agreement, shall be governed by and construed in accordance with the
internal laws of the Commonwealth of Massachusetts, and this Agreement shall be
deemed to be performable in Massachusetts.
9. Severability. In case any one or more of the provisions contained in
------------
this Agreement or the other agreements executed in connection with the
transactions contemplated hereby for any reason shall be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement or such
other agreements, but this Agreement or such other agreements, as the case may
be, shall be construed and reformed to the maximum extent permitted by law.
6
10. Waivers and Modifications. This Agreement may be modified, and the
-------------------------
rights, remedies and obligations contained in any provision hereof may be
waived, only in accordance with this Section 10. No waiver by either party of
any breach by the other or any provision hereof shall be deemed to be a waiver
of any later or other breach thereof or as a waiver of any other provision of
this Agreement. This Agreement sets forth all of the terms of the
understandings between the parties with reference to the subject matter set
forth herein and may not be waived, changed, discharged or terminated orally or
by any course of dealing between the parties, but only by an instrument in
writing signed by the party against whom any waiver, change, discharge or
termination is sought. No modification or waiver by the Company shall be
effective without the consent of at least a majority of the members of the Board
excluding the Employee then in office at the time of such modification or
waiver.
11. Assignment. The Employee acknowledges that the services to be rendered
----------
by him hereunder are unique and personal in nature. Accordingly, the Employee
may not assign any of his rights or delegate any of his duties or obligations
under this Agreement. The rights and obligations of the Company under this
Agreement shall inure to the benefit of, and shall be binding upon, the
successors and assigns of the Company.
12. Acknowledgments. The Employee hereby acknowledges and recognizes that
---------------
the enforcement of any of the provisions in this Agreement and the Employee
Noncompetition, Nondisclosure and Developments Agreement executed herewith may
potentially interfere with the Employee's ability to pursue a proper livelihood.
The Employee represents that he or she is knowledgeable about the business of
the Company and further represents that he or she is capable of pursuing a
career in other industries to earn a proper livelihood. The Employee recognizes
and agrees that the enforcement of the Employee Noncompetition, Nondisclosure
and Developments Agreement is necessary to ensure the preservation, protection
and continuity of the business, trade secrets and goodwill of the Company. The
Employee agrees that, due to the proprietary nature of the Company's business,
the restrictions set forth in the Employee Noncompetition, Nondisclosure and
Developments Agreement are reasonable as to time and scope. The foregoing shall
not prohibit the Employee from employment with any company by which the Employee
has been employed in the past so long as his activities with any such company
do not otherwise constitute a breach of the Employee Noncompetition,
Nondisclosure and Developments Agreement.
13. Entire Agreement. This Agreement constitutes the entire understanding of
----------------
the parties relating to the subject matter hereof and supersedes and cancels all
agreements, written or oral, made prior to the date hereof between the Employee
and the Company relating to employment, salary, bonus, or other compensation of
any description, equity participation, pension, post-retirement benefits,
severance or other remuneration.
7
14. Notices. All notices hereunder shall be in writing and shall be
-------
delivered in person or mailed by certified or registered mail, return receipt
requested, addressed as follows:
If to the Company, to: Individual, Inc.
8 New England Executive Park West
Burlington, MA 01803
Attention: Board of Directors
With a copy to: William B. Asher, Jr., Esq.
Testa, Hurwitz & Thibeault
High Street Tower
125 High Street
Boston, MA 02110; and
If to the Employee, at the Employee's address set forth on the signature page
hereto.
With a copy to: Richard L. Medverd, Esq.
Medverd & Simmons, P.C.
175 Federal Street
Boston, MA 02110
15. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
16. Section Headings. The descriptive section headings herein have been
----------------
inserted for convenience only and shall not be deemed to define, limit, or
otherwise affect the construction of any provision hereof.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
8
IN WITNESS WHEREOF, the parties hereto have executed this Employment Agreement
as of the datefirst above written as an instrument under seal.
INDIVIDUAL, INC. EMPLOYEE:
By: /s/ William A. Devereaux /s/ Michael E. Kolowich
------------------------------------ ------------------------------
William A. Devereaux Michael E. Kolowich
Chairman of the Board of Directors
116 Monument Street
------------------------------
Street Address
Concord, MA 01742
------------------------------
City State Zip Code
9
ANNEX A
-------
Current Directorship and Similar Positions
------------------------------------------
1. Director and 4% stockholder of Avantos Performance Systems, producers of
management performance software products.
2. Trustee, The Fenn School, Concord Massachusetts.
3. Board of Overseers, Museum of Science, Boston, Massachusetts.
4. Trustee, Massachusetts Software Council.
5. Director, Kolo Corporation, a family owned real estate and investment
company.
ANNEX B
-------
EMPLOYEE NONCOMPETITION,
------------------------
NONDISCLOSURE AND DEVELOPMENTS AGREEMENT
----------------------------------------
In consideration and as a condition of my employment by Individual,
Inc. (the "Company"), I hereby agree with the Company as follows:
1. During the period of my employment by the Company, I will devote
my full time and best efforts to the business of the Company. Further, during
the period of my employment by the Company and for one year thereafter, I agree
that I will not, directly or indirectly, alone or as a partner, officer,
director, employee or stockholder, or consultant to, of any entity, (a) engage
in any business activity which is in competition in the United States with the
products or services being developed, manufactured or sold by the Company or (b)
solicit, interfere with or endeavor to entice away any employee of the Company;
provided however, that this Agreement does not prohibit me from holding up to
five percent (5%) of the publicly traded shares of a public company.
2. I will not at any time, whether during or after the termination of
my employment, reveal to any person or entity any of the trade secrets or
confidential information concerning the organization, business or finances of
the Company or of any third party which the Company is under an obligation to
keep confidential (including but not limited to trade secrets or confidential
information respecting inventions, products, designs, methods, know-how,
techniques, systems, processes, software programs, works of authorship, customer
lists, projects, plans and proposals), except as may be required in the ordinary
course of performing my duties as an employee of the Company; and I shall keep
secret all matters entrusted to me and shall not use or attempt to use any such
information in any manner which may injure or cause loss or may be calculated to
injure or cause loss whether directly or indirectly to the Company (it being
understood that any use of such information in the exercise of honest business
judgment in connection with my performance of services for the Company shall not
constitute a violation of this clause).
Further, I agree that during my employment I shall not make, use or
permit to be used any notes, memoranda, reports, lists, records, drawings,
sketches, specifications, software programs, data, documentation or other
materials of any nature relating to any matter within the scope of the business
of the Company or concerning any of its dealings or affairs otherwise than for
the benefit of the Company. I further agree that I shall not, after the
termination of my employment, use or permit to be used any such notes,
memoranda, reports, lists, records, drawings, sketches, specifications, software
programs, data, documentation or other materials, it being agreed that all of
the foregoing shall be and remain the sole and exclusive property of the Company
and that immediately upon the termination of my employment I shall deliver all
of the foregoing, and all copies thereof, to the Company, at its main office.
3. If at any time or times during my employment, I shall (either
alone or with others) make, conceive, discover or reduce to practice any
invention, modification, discovery, design, development, improvement, process,
software program, work of authorship, documentation, formula, data, technique,
know-how, secret or intellectual property right whatsoever or any interest
therein (whether or not patentable or registrable under copyright or similar
statutes or subject to analogous protection) (herein called "Developments") that
(a) relates to the business of the Company or any of the products or services
2
being developed, manufactured or sold by the Company or which may be used in
relation therewith or (b) results from tasks assigned me by the Company, such
Developments and the benefits thereof shall immediately become the sole and
absolute property of the Company and its assigns, and I shall promptly disclose
to the Company (or any persons designated by it) each such Development and
hereby assign any rights I may have or acquire in the Developments and benefits
and/or rights resulting therefrom to the Company and its assigns without further
compensation and shall communicate, without cost or delay, and without
publishing the same, all available information relating thereto (with all
necessary plans and models) to the Company.
Upon disclosure of each Development to the Company, I will, during my
employment and at any time thereafter, at the request and cost of the Company,
sign, execute, make and do all such deeds, documents, acts and things as the
Company and its duly authorized agents may reasonably require:
(a) to apply for, obtain and vest in the name of the Company
alone (unless the Company otherwise directs) letters patent, copyrights or
other analogous protection in any country throughout the world and when so
obtained or vested to renew and restore the same; and
(b) to defend any opposition proceedings in respect of such
applications and any opposition proceedings or petitions or applications
for revocation of such letters patent, copyright or other analogous
protection.
In the event the Company is unable, after reasonable effort, to secure
my signature on any letters patent, copyright or other analogous protection
relating to a development, whether because my physical or mental incapacity or
for any other reason whatsoever, I hereby irrevocably designate and appoint the
Company and its duly authorized officers and agents as my agent and attorney-in-
fact, to act for and in my behalf and stead to execute and file any such
application or applications and to do all other lawfully permitted acts to
further the prosecution and issuance of letters patent, copyright or other
analogous protection thereon with the same legal force and effect as if executed
by me.
4. I agree that any breach of this Agreement by me will cause
irreparable damage to the Company and that in the event of such breach the
Company shall have, in addition to any and all remedies of law, the right to an
injunction, specific performance or other equitable relief to prevent the
violation of my obligations hereunder.
5. I understand that this Agreement does not create an obligation on
the Company or any other person or entity to continue my employment.
6. I represent that Exhibit A attached hereto constitutes a complete
---------
list of all agreements that I have entered into over the past five years
regarding noncompetition and confidentiality of proprietary information.
I further represent that my performance of all of the terms of this
Agreement, the Employment Agreement dated this date between myself and the
Company and my service as an employee and a director of the Company does not
and will not breach any agreement listed in Exhibit A hereto or any agreement to
---------
keep in confidence proprietary information acquired by me in confidence or in
trust prior to my employment with the Company. I have not entered into, and I
agree I will not enter into, any agreement either written or oral in conflict
herewith.
3
7. Any waiver by the Company of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent breach
of such provision or any other provision hereof.
8. I hereby agree that each provision herein shall be treated as a
separate and independent clause, and the unenforceability of any one clause
shall in no way impair the enforceability of any of the other clauses herein.
Moreover, if one or more of the provisions contained in this Agreement shall for
any reason be held to be excessively broad as to scope, activity or subject so
as to be unenforceable at law, such provision or provisions shall be construed
by the appropriate judicial body by limiting or reducing it or them, so as to be
enforceable to the maximum extent compatible with the applicable law as it shall
then appear.
9. My obligations under this Agreement shall survive the termination
of my employment regardless of the manner of such termination and shall be
binding upon my heirs, executors, administrators and legal representatives.
10. The term "Company" shall include Individual, Inc. and any of its
subsidiaries, subdivisions or affiliates. The Company shall have the right to
assign this Agreement to its successors and assigns, and all covenants and
agreements hereunder shall inure to the benefit of and be enforceable by said
successors or assigns.
11. This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the undersigned has executed this Agreement as a
sealed instrument as of the 3rd day of September, 1996.
/s/ Michael E. Kolowich
-------------------------------------------------
Michael E. Kolowich
EXHIBIT A
---------
The following is a complete list of all agreements I have entered
within the past five years regarding noncompetition and nondisclosure of
proprietary information.
1. Separation Agreement and General Release dated June 30, 1996 between Michael
E. Kolowich and AT&T (the terms of which agreement are required to kept
confidential by the parties and, accordingly, have not been furnished to the
Company or its counsel)
/s/ Michael E. Kolowich
---------------------------------------
Michael E. Kolowich