Exhibit 10.4
EMPLOYMENT AGREEMENT
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THIS AGREEMENT, dated as of April __, 2000, is between EarthWeb Inc., a Delaware
corporation ("Company"), with its principal place of business at 3 Park Avenue,
New York, NY, and Michael P. Durney an individual residing at [ADDRESS]
("Employee").
In consideration of Employee's employment with Company, Employee hereby
agrees to be bound by and comply with the following terms and conditions of
employment:
Section 1. At-Will Employment. Employee acknowledges and agrees that his
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employment status is that of an employee-at-will and that Employee's employment
may be terminated by Company or Employee at any time with or without cause.
Section 2. Compensation. In consideration of the services to be rendered
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hereunder, Employee shall be paid in accordance with the offer letter.
Section 3. Employee Inventions and Ideas.
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(a) Employee will maintain current and adequate written records on the
development of, and disclose to Company, all Inventions (as herein defined).
"Inventions" shall mean all ideas, potential marketing and sales relationships,
inventions, copyrightable expression, research, plans for products or services,
marketing plans, computer software (including, without limitation, source code),
computer programs, original works of authorship, characters, know-how, trade
secrets, information, data, developments, discoveries, improvements,
modifications, technology, algorithms and designs, whether or not subject to
patent or copyright protection, made, conceived, expressed, developed, or
actually or constructively reduced to practice by Employee solely or jointly
with others during the term of Employee's employment with Company, which refer
to, are suggested by, or result from any work which Employee may do during his
employment, or from any information obtained from Company or any affiliate of
Company.
(b) The Inventions shall be the exclusive property of Company, and Employee
acknowledges that all of said Inventions shall be considered as "work made for
hire" belonging to Company. To the extent that any such Inventions, under
applicable law, may not be considered work made for hire by Employee for
Company, Employee hereby agrees to assign and, upon its creation, automatically
and irrevocably assigns to Company, without any further consideration, all
right, title and interest in and to such materials, including, without
limitation, any copyright, other intellectual property rights, moral rights, all
contract and licensing rights, and all claims and causes of action of any kind
with respect to such materials. Company shall have the exclusive right to use
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Inventions, whether original or derivative, for all purposes without additional
compensation to Employee. At Company's expense, Employee will assist Company in
every proper way to perfect Company's rights in the Inventions and to protect
the Inventions throughout the world, including, without limitation, executing in
favor of Company or any designee(s) of Company patent, copyright, and other
applications and assignments relating to the Inventions. Employee agrees not to
challenge the validity of the ownership by Company or its designee(s) in the
Inventions.
(c) Should Company be unable to secure Employee's signature on any document
necessary to apply for, prosecute, obtain, or enforce any patent, copyright, or
other right or protection relating to any Invention, whether due to Employee's
mental or physical incapacity or any other cause, Employee hereby irrevocably
designates and appoints Company and each of its duly authorized officers and
agents as Employee's agent and attorney in fact, to act for and in Employee's
behalf and stead and to execute and file any such document, and to do all other
lawfully permitted acts to further the prosecution, issuance, and enforcement of
patents, copyrights, or other rights or protections with the same force and
effect as if executed and delivered by Employee.
Section 4. Proprietary Information.
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(a) Employee will not disclose or use, at any time either during or after
the term of employment, except at the request of Company or an affiliate of
Company, any Confidential Information (as herein defined). "Confidential
Information" shall mean all Company proprietary information, technical data,
trade secrets, and know-how, including, without limitation, research, product
plans, customer lists, customer preferences, marketing plans and strategies,
software, developments, inventions, discoveries, processes, ideas, formulas,
algorithms, technology, designs, drawings, business strategies and financial
data and information, including but not limited to Inventions, whether or not
marked as "Confidential." "Confidential Information" shall also mean any and all
information received by Company from customers, vendors and independent
contractors of Company or other third parties subject to a duty to be kept
confidential.
(b) Employee hereby acknowledges and agrees that all personal property,
including, without limitation, all books, manuals, records, reports, notes,
contracts, lists, blueprints, and other documents, or materials, or copies
thereof, Confidential Information as defined in Section 4(a) above, and
equipment furnished to or prepared by Employee in the course of or incident to
his employment, including, without limitation, records and any other materials
pertaining to Inventions, belong to Company and shall be promptly returned to
Company upon termination of employment. Following termination, Employee will not
retain any written or other tangible or electronic material containing any
Confidential Information or information pertaining to any Invention.
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Section 5. Limited Agreement Not to Compete
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(a) While employed by Company and for a period of twelve (12) months after
the termination of Employee's employment with Company, Employee shall not,
directly or indirectly, as an employee, employer, consultant, agent, principal,
partner, manager, stockholder, officer, director, or in any other individual or
representative capacity, engage, participate or in any way render services or
assistance to any business that is competitive with the business of Company. For
purposes of this section, a business would not be deemed "competitive with the
business of Company" merely by virtue of its generating online revenue streams.
Employee acknowledges that Company's business is conducted over the World Wide
Web and for that reason this restriction cannot be limited in geographic scope.
Notwithstanding the foregoing, Employee may own less than two percent (2%) of
any class of stock or security of any corporation which competes with Company
listed on a national securities exchange.
(b) While employed by Company and for a period of twelve (12) months after
the termination of Employee's employment with Company, Employee shall not,
directly or indirectly, solicit for employment or employ any person who was
employed by Company at the time of Employee's termination from Company.
Section 6. Company Resources. Employee may not use any Company equipment
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for personal purposes (other than for incidental personal use) without written
permission from Company. Employee may not give access to Company's offices or
files to any person not in the employ of Company without written permission of
Company.
Section 7. Post-Termination Period. Because of the difficulty of
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establishing when any idea, process or invention is first conceived or developed
by Employee, or whether it results from access to Confidential Information or
Company's equipment, facilities, and data, Employee agrees that any idea,
invention, research, plan for products or services, marketing plan, computer
software (including, without limitation, source code), computer program,
original work of authorship, character, know-how, trade secret, information,
data, developments, discoveries, technology, algorithm, design, patent or
copyright, or any improvement, rights, or claims related to the foregoing, shall
be presumed to be an Invention if it is conceived, developed, used, sold,
exploited or reduced to practice by Employee or with the aid of Employee within
one (1) year after termination of employment. Employee can rebut the above
presumption if he/she proves that the idea, process or invention (i) was first
conceived or developed after termination of employment, (ii) was conceived or
developed entirely on Employee's own time without using Company's equipment,
supplies, facilities, personnel or Confidential Information, and (iii) did not
result from or is not derived directly or indirectly, from any work performed by
Employee for Company or from work performed by another employee of the Company
to which Employee had access.
Section 8. Injunctive Relief. Employee agrees that the remedy at law for
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any breach of the provisions of Section 3, Section 4 or Section 5 of this
Agreement shall be
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inadequate, the Company will suffer immediate and irreparable harm, and Company
shall be entitled to injunctive relief in addition to any other remedy at law
which Company may have.
Section 9. Severability. In the event any of the provisions of this
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Agreement shall be held by a court or other tribunal of competent jurisdiction
to be unenforceable, the other provisions of this Agreement shall remain in full
force and effect.
Section 10. Survival. Sections 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and
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14 shall survive the termination of this Agreement.
Section 11. Representations and Warranties. Employee's performance of his
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obligations to Company during the term of his employment with Company will not
breach any agreement by which Employee is bound not to disclose any proprietary
information including, without limitation, that of former employers.
Section 12. Governing Law. The validity, interpretation, enforceability,
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and performance of this Agreement shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to its
conflict of law rules.
Section 13. Dispute Resolution. Except as otherwise expressly provided for
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herein, any dispute relating to or arising out of Employee's employment at
Company, which cannot be resolved by negotiation, shall be settled by a single
arbitrator pursuant to a binding arbitration in accordance with the AAA
Employment Dispute Arbitration Rules and Procedures, as amended by this
Agreement. Employment disputes include, but are not limited to, all claims,
demands or actions under Title VII of the Civil Rights Act of 1964, Civil Rights
Act or 1966, Civil Rights Act of 1991 and all amendments to the aforementioned,
and any other federal, state, or local statute or regulation or common law
regarding employment discrimination or the termination of employment. The costs
of arbitration, including the fees and expenses of the arbitrator, shall be
shared equally by the parties. Each party shall bear the cost of preparing and
presenting its case. The arbitration shall take place in the County of New York,
in the State of New York. The arbitration shall be conducted in strict
confidence. The arbitrator shall not make any award that provides for punitive
or exemplary damages. The arbitrator's decision shall be based upon the
substantive laws of the State of New York. The arbitrator's decision shall
follow the plain meaning of the relevant documents, and shall be final and
binding. The award may be confirmed and enforced in any court of competent
jurisdiction. The parties hereby agree that any federal or state court sitting
in the County of New York in the State of New York is a court of competent
jurisdiction. The parties each expressly waive his/her/its right to a jury
trial. This paragraph does not limit Company's right to seek injunctive relief
only in any state or federal court sitting in the County of New York in the
State of New York (jurisdictional, venue and inconvenient forum objections to
which are hereby waived by both parties) in the event that a dispute relates to
or arises under Sections 3, 4 or 5 of this Agreement above and Employee agrees
to pay Company
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reasonable costs and attorney's fees in seeking to enforce this agreement
through such injunctive relief.
Section 14. General. This Agreement supersedes and replaces any existing
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agreement between Employee and Company relating generally to the same subject
matter, and may be modified only in a writing signed by the parties hereto.
Failure to enforce any provision of the Agreement shall not constitute a waiver
of any term herein. This Agreement contains the entire agreement between the
parties with respect to the subject matter herein. Employee agrees that he/she
will not assign, transfer, or otherwise dispose of, whether voluntarily or
involuntarily, or by operation of law, any rights or obligations under this
Agreement. Any purported assignment, transfer, or disposition shall be null and
void. Nothing in this Agreement shall prevent the consolidation of Company with,
or its merger into, any other corporation, or the sale by Company of all or
substantially all of its properties or assets, or the assignment by Company of
this Agreement and the performance of its obligations hereunder. Subject to the
foregoing, this Agreement shall be binding upon and shall inure to the benefit
of the parties and their respective heirs, legal representatives, successors,
and permitted assigns, and shall not benefit any person or entity other than
those enumerated.
Section 15. Employee Acknowledgement. Employee acknowledges (i) that he/she
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has consulted with or has had the opportunity to consult with independent
counsel of his own choice concerning this Agreement and has been advised to do
so by the Company, and (ii) that he/she has read and understands the Agreement,
is fully aware of its legal effect, and has entered into it freely based on his
own judgment.
AGREED TO BY:
EARTHWEB INC. Employee
Sign: ______________________ Sign: ______________________
Date: ______________________ Date: ______________________
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ADDENDUM TO EMPLOYMENT AGREEMENT
Title and Job Description: Employee shall be employed as Chief Financial Officer
and, in such capacity, shall be the chief financial officer of the Company and
responsible for overseeing the day-to-day financial operations of the Company,
including the accounting, treasury, investor relations and financial reporting
functions, and shall perform such other functions as the Chief Executive Officer
shall reasonably request for a position of this type. In such capacity and in
the performance of his duties hereunder, the Employee shall report to the Chief
Executive Officer of the Company.
Base Annual Salary: $215,000
Bonus: Employee will be eligible for a bonus of up to 25% of the base annual
salary as per the Company's 2000 corporate bonus plan for senior management.
Stock Options: Upon commencement of employment, Employee will be eligible to
receive a stock option grant to purchase 75,000 shares of EarthWeb Inc. common
stock and, upon the next company-wide option grant, Employee will be eligible to
receive a stock option grant to purchase 50,000 shares of EarthWeb Inc. common
stock, in both cases pursuant to and in accordance with the terms and conditions
of EarthWeb's 1998 Stock Incentive Plan and the option granting documents.
Restricted Stock: As an inducement essential to Employee's employment with the
Company, upon commencement of employment, Employee will be granted two
restricted stock awards: (i) in the amount of 20,000 shares of EarthWeb Inc.
common stock, which shares shall be subject to a three-year vesting schedule
with one-third of such award vesting on each of the first three anniversaries of
such grant date (the "Three Year Restricted Stock Award") and (ii) in the amount
of 20,000 shares of EarthWeb Inc. common stock, which shares shall be subject to
a six-year vesting schedule with one-sixth of such award vesting on each of the
first six anniversaries of such grant date (the "Six Year Restricted Stock
Award").
Termination Without Cause or Change in Control: If (i) the Company terminates
Employee's employment without "cause", or (ii) a "change of control" occurs and
thereafter Employee is terminated or there is no comparable position available
in the surviving entity for Employee, (A) the Company will provide Employee with
severance in an amount equal to twelve (12) months of Employee's then current
base pay, provided Employee executes and delivers a release in a form prepared
by the Company and (B) (v) if such termination occurs during the first six
months of Employee's employment with the Company, Employee shall be entitled to
additional vesting of twenty percent (20%) of previously granted unvested stock
options (provided that if such event occurs prior to the stock option grant to
Employee with respect to 50,000 shares of EarthWeb Inc. common stock referred to
above, Employee shall be entitled to additional vesting of thirty percent (30%)
of previously granted unvested stock options); (w) if such termination occurs
after the sixth month but prior to the end of the twelfth month of Employee's
employment with
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the Company, Employee shall be entitled to additional vesting of thirty-five
percent (35%) of previously granted unvested stock options; (x) if such
termination occurs after the twelfth month but prior to the end of the
eighteenth month of Employee's employment with the Company, Employee shall be
entitled to additional vesting of fifty-five percent (55%) of previously granted
unvested stock options; (y) if such termination occurs after the eighteenth
month but prior to the end of the twenty-fourth month of Employee's employment
with the Company, Employee shall be entitled to additional vesting of
seventy-five percent (75%) of previously granted unvested stock options; and (z)
if such termination occurs after the twenty-fourth month of Employee's
employment with the Company, Employee shall be entitled to additional vesting of
one-hundred percent (100%) of previously granted unvested stock options.
If prior to the 3rd anniversary of the Three Year Restricted Stock Award grant
date (i) the Company terminates Employee's employment without "cause", or (ii) a
"change of control" occurs and thereafter Employee is terminated or there is no
comparable position available in the surviving entity for Employee, Employee
shall be entitled to additional vesting of fifty percent (50%) of the then
unvested Three Year Restricted Stock Award and fifty percent (50%) of the then
unvested Six Year Restricted Stock Award. If on or after the 3rd anniversary of
the restricted stock award grant date (i) the Company terminates Employee's
employment without "cause", or (ii) a "change of control" occurs and thereafter
Employee is terminated or there is no comparable position available in the
surviving entity for Employee, Employee shall be entitled to additional vesting
of one hundred percent (100%) of the then unvested Six Year Restricted Stock
Award.
Definitions:
"Cause" is defined as: embezzlement, misappropriation of funds, conviction of a
felony or commission of any act which would rise to the level of a felony;
commission of other acts of dishonesty, fraud or deceit, breach of any material
provision of this Agreement, habitual or willful neglect of duties, breach of
fiduciary duty to the Company involving personal profit, or significant or
material violation of Company policy or other contractual, statutory or common
law duties to the Company.
"Change of Control" is defined as: (a) the sale of all or substantially all the
assets of the Company or (b) the completion of a merger with, or acquisition of,
another company such that EarthWeb is not the surviving company.
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