EXHIBIT 10.44
EMPLOYMENT AGREEMENT
dated as of February __ , 2005, between
GREENFIELD ONLINE, INC., a Delaware
corporation (the "Company"), and LANCE
SUDER(the "EXECUTIVE").
The Company and its subsidiaries are engaged in the business (the
"SUBJECT BUSINESS") of providing marketing research data collection services
over the Internet and online marketing services (the Company and its
subsidiaries, now existing or hereafter acquired or created are collectively
referred to as the "GREENFIELD ENTITIES"). The Executive has experience in the
field of senior level corporate management as well as experience within the
online marketing research industry and the online marketing industry, which
experience is valuable to the Subject Business and the Greenfield Entities and
the Company desires to employ and the Executive desires to be employed as the
Company's Senior Vice President of West Coast Operations.
The Executive and the Company desire to enter into this Employment
Agreement to set forth the terms governing the Executive's employment as well as
to provide adequate and reasonable protection for the Greenfield Entities'
legitimate business interest of safeguarding their trade secrets, confidential
information and customer and employee relationships.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. CONSIDERATION. Executive recognizes and agrees that immediately prior
to the execution of this Agreement he was an employee pursuant to a Five (5)
year contract with Zing Wireless, Inc., ("ZING", now a wholly owned subsidiary
of the Company), that was terminable by Zing only for cause. Executive agrees
that good and valuable consideration exists to support the execution and
enforcement of this Agreement including, but not limited to his offer of
employment with the Company following the merger of Zing with the Company, and
the grant of Options as provided herein.
SECTION 2. EMPLOYMENT.
The Company shall employ the Executive, and the Executive accepts
employment with the Company, as an at-will employee upon the terms and
conditions set forth in this Agreement for the period beginning on the Effective
Date (as defined in Section 13(i) and ending on the period ending one year
following the Effective Date (the "EMPLOYMENT PERIOD"), unless extended after
the Effective Date by written agreement of the parties. AS AN EMPLOYEE-AT-WILL,
EXECUTIVE MAY BE TERMINATED BY COMPANY AT ANY TIME WITH OR WITHOUT CAUSE OR
ADVANCE NOTICE, SUBJECT TO THE SEVERANCE REQUIREMENTS IN SECTION 6.
SECTION 3. BASE SALARY, BONUS AND BENEFITS.
(a) During the first year of the Employment Period, the Executive's
base salary shall be no less than $200,000 per annum. (the "BASE SALARY").
During the first year of employment under this Agreement, Executive's Base
Salary may be reviewed by the Company's
Compensation Committee for upward adjustment. After the first year of employment
under this Agreement, Executive's Base Salary shall be reviewed for upward or
downward adjustment as determined by the Compensation Committee. Subject to the
contents herein Base Salary shall be payable in equal Monthly or Bi-Monthly
installments. In addition, during the Employment Period, the Executive shall be
entitled to (i) participate in all employee benefit programs and published bonus
programs for which other similarly situated executives of Company are generally
eligible, (ii) participate in all group insurance plans, including, but not
limited to health insurance plans, available generally to other similarly
situated executives of Company, and (iii) receive such paid or unpaid leave
benefits for which other similarly situated executives of Company are generally
eligible, and/or as provided for in section (b) hereinafter.
(b) Executive is hereby granted three (3) Weeks vacation during each
year of this contract, pro-rated for partial years of employment, to be taken by
him at such times and dates, and in such number of consecutive days as may be
reasonably agreed to between himself and the CEO of the Company in light of the
business needs of the Company. Notwithstanding the foregoing, if Executive meets
100% of his variable compensation plan for 2005, he will be entitled to receive
an extra week of vacation in the second year of this Agreement.
(c) In addition to the Base Salary and benefits set forth in
paragraph (a) above, during the employment period the Executive shall be
entitled to participate in Company's 2005 Executive Compensation Plan as
described in Schedule A, attached hereto.
(d) Company will grant the Executive options (the "OPTIONS") to
purchase 50,000 shares of Company's Common Stock, or such other similar equity
incentive permissible under the Greenfield Online 2004 Equity Incentive Plan
(the "PLAN"). This grant is subject to the approval by Greenfield's
stockholders, at the 2005 annual meeting thereof, of an increase in the number
of shares available for grant under the Plan, sufficient to cover these grants,
when taken into account together with all other grants committed to by Company
on a similar contingent basis. The Option strike price will be equal to the fair
market value of the underlying common stock on the date of issuance (which shall
be as soon as practicable after such increase), with reference to the closing
sale price for the Common Stock (or the closing bid, if no sale was reported) as
quoted on the NASDAQ National Market (or the exchange or market with the
greatest volume of trading in the Common Stock), as reported in The Wall Street
Journal or such other source as Company's board of directors deems reliable.
Such Options will vest according to the following schedule: 2.083% per month
during each of the first 12 months following the grant and 12.5% on each
subsequent six-month anniversary.
(e) The Company shall reimburse the Executive for all reasonable
expenses incurred by him in the course of performing his duties under this
Agreement which are consistent with the Company's policies in effect generally,
and as communicated to Executive, from time to time with respect to travel,
entertainment and other business expenses, subject to the Company's reasonable
requirements with respect to reporting and documentation of such expenses.
- 2 -
(f) The Company shall deduct from any payments to be made by it to
the Executive under this Agreement any amounts required to be withheld in
respect of any Federal, state or local income or other taxes.
SECTION 4. POSITION AND DUTIES.
(a) During the Employment Period, the Executive shall initially
serve as Senior Vice President of West Coast Operations, and shall report to the
SVP of Worldwide Operations with dotted line reporting to the CEO of Company.
The Executive shall perform his duties at the Company's Encino, California
offices, or such other offices in the Los Angeles area as designated by the
Company. The Executive acknowledges and agrees that he owes a fiduciary duty of
loyalty to the Company to discharge his duties and otherwise act in a manner
consistent with the best interests of the Company or its subsidiaries.
(b) During the Employment Period, the Executive shall devote his
best efforts and full working time, attention and energies to the performance of
his duties and responsibilities under this Agreement (except for periods of
leave or vacation to which he is entitled pursuant to Section 3(a) and except
for illness or incapacity). During the Employment Period, the Executive shall
not unreasonably engage in any business activity which, in the reasonable
judgment of the Board or the board of directors of Company (excluding the
Executive if he should be a member of the Board at the time of such
determination), conflicts with the duties of the Executive hereunder, whether or
not such activity is pursued for gain, profit or other pecuniary advantage.
SECTION 5. TERMINATION.
(a) Termination Date. The Executive's employment under this
Agreement shall terminate upon the earliest to occur (the date of such
occurrence being the "TERMINATION DATE") of (i) the effective date of the
Executive's resignation (a "RESIGNATION"), (ii) the Executive's death or
Disability (an "INVOLUNTARY TERMINATION"), (iii) the effective date of a
termination of the Executive's employment for Cause (a "TERMINATION FOR CAUSE"),
(iv) the effective date of a termination of the Executive's employment for
reasons that do not constitute Cause (a "TERMINATION WITHOUT CAUSE"); and (v)
the expiration of the Employment Term without continuation or renewal of this
Agreement. The effective date of a Resignation shall be as determined under
Section 5(b); the effective date of an Involuntary Termination shall be the date
of death or, in the event of a Disability, the date specified in a notice
delivered to the Executive by the Company; and the effective date of a
Termination for Cause or a Termination Without Cause shall be the date specified
in a notice delivered to the Executive by the Company of such termination
(b) Resignation. The Executive shall give the Company at least 30
days' prior written notice of a Resignation, with the effective date of such
Resignation specified therein. The Company may, in its discretion, accelerate
the effective date of the Resignation.
- 3 -
SECTION 6. EFFECT OF TERMINATION; SEVERANCE.
(a) In the event of a Termination Without Cause or an Involuntary
Termination, the Executive or his beneficiaries or estate shall have the right
to receive the following, provided however, that in order to receive any amounts
pursuant to Sections 6(a)(ii) and 6(a)(iv), Executive must provide Company with
an effective release and waiver agreement releasing any and all claims against
the Greenfield Entities and not revoke or be in breach of such agreement (a copy
of such release, which shall be conformed to California law is attached as
EXHIBIT A):
(i) the unpaid portion of the Base Salary, computed on a pro
rata basis to the Termination Date;
(ii) Base Salary for the period beginning on the Termination
Date and ending one year after the Effective Date of this Agreement,
promptly payable in full within fifteen (15) days of such Termination;
with any other remaining obligations being met by Company when due;
provided, however, that in the event of a breach by the Executive of
Section 7 or 8 on or after the Termination Date, the provisions of Section
10 shall apply;
(iii) reimbursement for any expenses for which the Executive
shall not have been previously reimbursed, as provided in Section 3(d);
and
(iv) the portion of any bonus payable in accordance with
Section 3(b) for the calendar year in which such termination occurs, pro
rated through the date of such termination on a per diem basis, payable
after the end of the calendar year when paid to other members of senior
management; provided, however, that in the event of a breach by the
Executive of Section 7 or 8 on or after the Termination Date, the
provisions of Section 10 shall apply;
(b) In the event of a Termination for Cause, a Resignation or the
expiration of the Employment Term without continuation or renewal of this
Agreement, the Executive or his beneficiaries or estate shall have the right to
receive the following:
(i) the unpaid portion of the Base Salary, computed on a pro
rata basis to the Termination Date; and
(ii) reimbursement for any expenses for which the Executive
shall not have been previously reimbursed, as provided in Section 3(d).
(iii) payment of any other sums and compliance with any other
obligation by Law or Contract due Executive.
(c) Upon any termination, neither the Executive nor his
beneficiaries or estate shall have any further rights under this Agreement or
any rights arising out of this Agreement other than as provided in Sections 6(a)
and (b) above.
- 4 -
SECTION 7. NONDISCLOSURE OF CONFIDENTIAL INFORMATION; INVENTIONS AND PATENTS.
The Executive shall execute and comply with the Employee Invention
Assignment and Confidentiality Agreement ("CONFIDENTIALITY AGREEMENT"), the form
of which is attached hereto as EXHIBIT B and incorporated by reference in this
Agreement.
SECTION 8. POST-EMPLOYMENT RESTRICTIONS.
The Executive acknowledges and agrees with the Greenfield Entities
that, during the course of the Executive's employment with the Company, the
Executive has had and will continue to have the opportunity to develop
relationships with existing employees, customers and other business associates
of the Greenfield Entities which relationships constitute goodwill of the
Greenfield Entities, and that they would be irreparably damaged if the Executive
were to take actions that would damage or misappropriate such goodwill.
Accordingly, the Executive agrees as follows:
(a) The Executive covenants and agrees that, during the period
commencing with the Effective Date and ending on the second anniversary of the
date on which the Executive ceases to be employed by the Company for any reason
whatsoever, the Executive will not, directly or indirectly, either for himself
or for any other person or entity (i) solicit any employee of the Greenfield
Entities to terminate his or her employment with the Greenfield Entities or
employ any such individual during his or her employment with the Greenfield
Entities and for a period of one year after such individual terminates his or
her employment with the Greenfield Entities, (ii) solicit any customer of the
Greenfield Entities to purchase or distribute information, products or services
of or on behalf of the Executive or such other person or entity that are
competitive with the information, products or services provided by the
Greenfield Entities, or (iii) take any action that will cause injury to the
business relationships between the Greenfield Entities or any of their employees
and any lessor, lessee, vendor, supplier, customer, distributor, employee,
consultant or other business associate of the Greenfield Entities as such
relationship relates to the conduct of their business. To the extent that the
covenant provided for in this Section 8(a) may later be deemed by a court to be
too broad to be enforced with respect to its duration or with respect to any
particular activity, the court making such determination shall have the power to
reduce the duration or scope of the provision, and to add or delete specific
words or phrases to or from the provision. The provision as modified shall then
be enforced.
(b) The Executive believes that he has received and will receive
sufficient consideration and other benefits as an employee of the Company and as
otherwise provided hereunder or as described in the recitals hereto, to clearly
justify the restrictions in this Section which, in any event (given his
education, skills and ability), the Executive does not believe would prevent him
from otherwise earning a living.
SECTION 9. INSURANCE.
The Company may, for its own benefit, maintain "keyman" life and
disability insurance policies covering the Executive. The Executive will
cooperate with the Company and
- 5 -
provide such information or other assistance as the Company may reasonably
request in connection with the Company obtaining and maintaining such policies.
SECTION 10. ENFORCEMENT.
Because the Executive's services are unique and because the
Executive has access to confidential information, the parties hereto agree that
money damages would be an inadequate remedy for any breach of this Agreement.
Therefore, in the event of a breach or threatened breach of this Agreement, the
Greenfield Entities or their successors or assigns may, in addition to other
rights and remedies existing in their favor, apply to any court of competent
jurisdiction in New York, N.Y. for specific performance and/or injunctive or
other relief in order to enforce, or prevent any violations of, the provisions
hereof (without posting a bond or other security). In addition to the foregoing,
and not in any way in limitation thereof, or in limitation of any right or
remedy otherwise available to the Greenfield Entities, if the Executive violates
any provision of the foregoing Sections 7 or 8 or of the Confidentiality
Agreement, any payments then or thereafter due from the Company to the Executive
pursuant to Sections 6(a)(ii) and 6(a)(iv) shall be terminated forthwith,
subject to a court of Law ruling that such violation occurred and the Greenfield
Entities' obligation to pay and the Executive's right to receive such payments
shall terminate and be of no further force or effect, in each case without
limiting or affecting the Executive's obligations under such Sections 7 or 8 or
the Greenfield Entities' other rights and remedies available at law or equity.
The Company's failure to pay to the Executive any sums why may be due pursuant
to Sections 6(a)(ii) and 6(a)(iv) during the pendency of such dispute shall not
give rise to additional damages.
SECTION 11. REPRESENTATIONS.
Each party hereby represents and warrants to the other party that
(a) the execution, delivery and performance of this Agreement by such party does
not and will not conflict with, breach, violate or cause a default under any
agreement, contract or instrument to which such party is a party or any
judgment, order or decree to which such party is subject, except for the
existing employment contract which is to be terminated prior to execution
hereof, and (b) upon the execution and delivery of this Agreement by such party,
and prior termination of the existing employment contract, this Agreement will
be a valid and binding obligation of such party, enforceable in accordance with
its terms, except as enforcement hereof may be limited by any applicable
bankruptcy, reorganization, insolvency or other laws affecting creditors rights
generally or by general principles of equity. In addition, the Executive
represents and warrants to the Company that the Executive is not a party to or
bound by any employment agreement, consulting agreement, non-compete agreement,
confidentiality agreement or similar agreement with any other person or entity.
The Company and the Executive, subject to execution by all the parties hereto,
hereby terminate all existing employment or consulting agreements between them,
if any, to the extent such agreements may be in effect after the date hereof.
- 6 -
SECTION 12. DEFINITIONS.
"BOARD" shall mean the board of directors of the Company.
"BUSINESS DAY" shall mean any day that is not a Saturday, Sunday, or
a day on which banking institutions in New York are not required to be open.
"CAUSE" shall mean (i) the Executive's breach of any of the terms of
this Agreement; (ii) the conviction of a crime or entry of a plea of nolo
contender involving fraud, theft or dishonesty by the Executive; (iii) the
Executive's disregard of lawful instructions of the Board or superiors (if any),
so long as conflicting instructions are not given and for so long as the
conflict is not resolved, (iv) violation of written policies of the Company
which are transmitted to Executive; (v) the use of alcohol or drugs by the
Executive to an extent that, in the good faith determination of the Board, such
use interferes in any manner with the performance of the Executive's duties and
responsibilities; (vi) the conviction of the Executive for violating any law
constituting a felony (including the Foreign Corrupt Practices Act of 1977) or
(vii) any other act or omission that constitutes cause under applicable law.
"DISABILITY" shall mean the physical or mental inability of the
Executive (i) to substantially perform, with any reasonable accommodation
required by relevant law, all of his duties under this Agreement for a period of
90 consecutive days or longer or for any 90 days in any period of 365
consecutive days, or (ii) that, in the opinion of a physician selected by the
Board (excluding the Executive if the Executive is a member of the Board at such
time) is likely to prevent the Executive from substantially performing, with any
reasonable accommodation required by relevant law, all of his duties under this
Agreement for more than 90 days in any period of 365 consecutive days.
SECTION 13. GENERAL PROVISIONS.
(a) Severability. It is the desire and intent of the Parties hereto
that the provisions of this Agreement be enforced to the fullest extent
permissible under the laws and public policies of the State of Delaware.
Accordingly, if any particular provision of this Agreement shall be adjudicated
by a court of competent jurisdiction in New York, N.Y. to be invalid, prohibited
or unenforceable for any reason, such provision, as to such jurisdiction, shall
be ineffective, without invalidating the remaining provisions of this Agreement
or affecting the validity or enforceability of this Agreement. Notwithstanding
the foregoing, if such provision could be more narrowly drawn so as not to be
invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such
jurisdiction, be so narrowly drawn, without invalidating the remaining
provisions of this Agreement.
(b) Notices. All notices, requests, demands, claims and other
communications hereunder shall be in writing and sufficient if (i) delivered
personally, (ii) delivered by certified United States Post Office mail, return
receipt requested, (iii) telecopied or (iv) sent to the recipient by a
nationally-recognized overnight courier service (charges prepaid) and addressed
to the intended recipient as set forth below:
- 7 -
(a) if to the Executive, to:
Lance Suder
26615 Lightfoot Place
Rancho Palos Verdes, CA 90275
with a copy to:
Dicker & Dicker, LLP
Attention: Howard W. Dicker
Dicker& Dicker
16530 Ventura Boulevard, Suite 609Encino, California 91436
(b) if to the Company, to:
Greenfield Online, Inc.
21 River Road
Wilton, Connecticut 06897
Attention: Dean A. Wiltse, President and CEO
Telecopier: (203) 846-5749
with copies to:
General Counsel
Greenfield Online, Inc.
21 River Road
Wilton, Connecticut 06897
Telecopier: (203) 846-5749
or such other address as the recipient party to who notice is to be given may
have furnished to the other party in writing in accordance herewith. Any such
communication shall deemed to have been delivered and received (a) in the case
of personal delivery, on the date of such delivery, (b) in the case of delivery
by mail, on the third Business Day following such mailing, (c) if telecopied, on
the date telecopied if transmission is confirmed by telephone, and (d) in the
case of delivery by nationally-recognized, overnight courier, on the Business
Day following dispatch.
(c) Entire Agreement. This Agreement and the documents expressly
referred to herein embody the complete agreement and understanding among the
parties and supersede and preempt any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related
to the subject matter hereof in any way provided that Executive's obligations
under this Agreement are in addition to and not in lieu of Executive's
obligations under the Confidentiality Agreement.
- 8 -
(d) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
(e) Successors and Assigns. Except as otherwise provided herein,
this Agreement shall bind and inure to the benefit of and be enforceable by the
Executive and the Company and their respective successors, assigns, heirs,
representatives and estate, as the case may be; provided, however, that the
obligations of the Executive under this Agreement shall not be assigned without
the prior written consent of the Company.
(f) Amendment and Waiver. The provisions of this Agreement may be
amended and waived only with the prior written consent of the Company and the
Executive, and no course of conduct or failure or delay in enforcing the
provisions of this Agreement shall affect the validity, binding effect or
enforceability of this Agreement or any provision hereof.
(g) Governing Law/Venue. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of Delaware without
giving effect to any choice or conflict of law provision or rule that would
cause the application of the laws of any jurisdiction other than the State of
Delaware. The parties consent to the jurisdiction of the state or federal court
located in New York, New York.
(h) Descriptive Headings; Nouns and Pronouns. Descriptive headings
are for convenience only and shall not control or affect the meaning or
construction of any provision of this Agreement. Whenever the context may
require, any pronouns used herein shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns and pronouns shall
include the plural and vice-versa.
(i) Effectiveness. This Agreement shall become effective when
executed by both parties (the "EFFECTIVE DATE").
* * * * *
- 9 -
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first written above.
GREENFIELD ONLINE, INC EXECUTIVE
By: /s/ Jonathan A. Flatow By: /s/ Lance Suder
------------------------------- ---------------------------------
Name: Jonathan A. Flatow
Title: General Counsel Date: 2/8/05
Date: 2/8/05
Signature Page to Lance Suder Employment Agreement
EXHIBIT A
SETTLEMENT AND RELEASE
AGREEMENT
This RELEASE AGREEMENT ("Agreement") with an Effective Date of January 4, 2005,
is entered into by and between (Hereinafter "" or "Releasor"), and
Greenfield Online, Inc., a Delaware corporation with its principal offices at 21
River Road, Wilton, Connecticut, (Hereinafter "GFOL" or "Releasee" and together
with the other entities listed in Section 4 the "Released Parties").
WHEREAS: Executive [insert reason for termination]; and,
WHEREAS: In order to settle any claims which Executive may have against
the Released Parties arising from or related to Executive's
employment with GFOL, or otherwise, and to provide for the
terms and conditions surrounding Executive's separation from
employment with GFOL, the parties have agreed to the terms and
provisions of this Agreement.
NOW THEREFORE, in consideration of the mutual covenants and promises contained
herein and the payments to be made pursuant hereto, the sufficiency of which is
recognized by both parties, the parties agree as follows:
1. NO WRONG DOING: The parties agree that the execution and performance of
this Agreement is not a recognition or admission of any wrongdoing on the
part of GFOL or Executive, and that each party asserts that neither it nor
any of the Released Parties has committed any wrongdoing, violated any
agreement, contract, law, regulation or ordinance in connection with the
other.
2. ADEQUACY OF CONSIDERATION: The parties agree that the consideration paid
and to be paid under this is Agreement is adequate to support the
performance of both party's obligations and duties hereunder. Executive
agrees that the consideration provided to him under this Agreement is
beyond that which he would be entitled to under his Employment Agreement
with GFOL, and any GFOL plan, policy or practice. Each party agrees not to
contest the validity of this Agreement on the basis of a lack of
consideration or on the basis of the insufficiency of the consideration.
3. CONSIDERATION: In consideration of the promises made by Executive and the
Release given by Executive to the Released Parties, herein, GFOL agrees to
make the following payment on Executive's behalf, subject to the terms of
this Agreement:
a. Prompt payment when due of all sums required under the Employment
Agreement between Executive and Company.
b. Future Payments: Upon Executive's return of all Company (and any of
its affiliates') property, (including all automobiles, computers,
electronic equipment
of any kind, computer software, keys, key cards, credit cards,
identification tags, documents, data and other proprietary
material), and all other materials required to be returned under the
terms of his Employment Agreement, receipt of a copy of this
Agreement fully executed and upon the expiration of the rescission
period, GFOL will pay Executive [severance due under contract] minus
required withholdings. Such payment will be made via direct deposit
and shall take place from the date the Agreement is fully executed
and the rescission period has expired. In the event of a breach by
Executive of the provisions of this Agreement or the Employment
Agreement which is attached hereto and incorporated herein,
Executive shall forfeit the right to any additional Conditional
Future Payments. It is agreed that Executive will not be accruing
any vacation or sick days during this period.
c. Accrued Vacation Pay. Executive has used __ days of his ___ accrued
days of vacation for 2005, and has or will immediately have received
full compensation for unused vacation herewith.
d. Withholdings and Timing. All payments pursuant to this Release shall
be subject to required state, federal and local withholdings.
e. Options: As of the date of Termination Releasor has been granted
options to purchase XXXX shares of GFOL's common stock, par value
$0.0001 (the "Options"), of which XXXX are vested and exercisable.
Releasor acknowledges that all vesting of unvested Options ceased as
of the Termination date and Releasor has 90 days from the
Termination date to properly exercise the vested Options.
4. RELEASE: Except for the Payments provided for in Section 3 above,
Executive, irrevocably and unconditionally, releases and forever
discharges GFOL, and its executors, administrators, successors, assigns,
officers, shareholders, employees, and directors, subsidiaries and
divisions (the "Released Parties"), from and against any and all actions,
liabilities, bonds, bills, covenants, contracts, controversies,
agreements, promises, damages, judgments, executions, obligations, taxes,
costs and expenses, claims or demands (hereinafter "Claims") whatsoever,
in law or equity, against the Released Parties he might now have, own or
hold, or at any time heretofore ever had, owned or held, or could, shall,
or may hereafter have, own or hold, whatsoever, upon or by reason of any
manner, cause or thing, act or omission, or circumstance whatsoever
whether based on contract, tort, statute, law, ordinance, executive order,
tort, express or implied contract, public policy or other legal or
equitable theory of recovery, whether known or unknown, at any time prior
to the date of this Agreement. This Release also covers any Claims that
Executive may have, known or unknown arising from or related to any
federal, state or local fair employment practices or other employee rights
or civil rights statutes, including but not limited to, Title VII of the
Civil Rights Act or 1964, as amended, the Age Discrimination in Employment
Act of 1967 ("ADEA", 29 U.S.C. sec 621 et seq.), the
2
Connecticut Family Medical Leave Act (Title 31, Chapter 557, Sec. 31-51kk
et seq.), the Older Workers Benefit Protection Act of 1990, as amended,
the Civil Rights Act of 1866, the Employee Retirement Security Act of
1974, the Rehabilitation Act of 1973, as amended, the Medical Leave Act of
1993, as amended, the Elliott-Larsen Civil Rights Act, as amended, the
Americans with Disabilities Act, The Connecticut Fair Employment Practices
Act (Title 46A, Chapter 814c Section 46a-51 et seq. of the Connecticut
General Statutes).
5. NON-DISPARAGEMENT: In addition to and not in substitution of the
provisions of his Employment Agreement, Executive agrees that he shall not
disparage, nor encourage any third party, to disparage GFOL and/or any
Released Party. GFOL agrees that it shall not disparage Executive nor
encourage any third party to disparage Executive. If GFOL receives any
request for an employment reference for Executive, consistent with the
Conn. Personnel Files Act, Conn. Gen. Stat.Sections 31-128e et seq., GFOL
will provide only the inclusive dates of Executive's employment, the job
title for the last job position held by her, and his last rate of pay.
GFOL shall provide no other information in response to reference requests
for Executive, unless required by law or pursuant to written authorization
by Executive. GFOL will not contest any claim made by Executive for
unemployment compensation. In addition to the information provided for
above, GFOL and Executive may issue the following public statement
regarding Executive's resignation:
STATEMENT HERE
6. AVAILABILITY OF COUNSEL: Each party has had the full and complete
opportunity to discuss and review the terms and provisions of this
Agreement with the counsel of their choice. Executive and GFOL both
represent and warrant to the other that (i) their execution of this
Agreement has been undertaken knowingly, intelligently and with the full
opportunity to review the same with their attorneys, (ii) that they have
each occupied a position of equal bargaining power in the negotiation of
the terms of this Agreement, (iii) all parties have participated in the
negotiation and preparation of this Agreement at all times from the
commencement of negotiations through the execution hereof and the
resulting documents shall not be construed more strictly against any one
of the parties than any other. Executive further represents that: (iv) he
was advised by GFOL of his right to consult with an attorney of his own
choice and at his own expense prior to signing this Agreement and has had
the opportunity to review this Agreement with such an attorney, (v) he was
given at least twenty-one (21) days to consult with an attorney and to
consider this Agreement; and if he signs this Agreement prior to the
expiration of twenty-one (21) days, he has done so voluntarily and of his
own free will, (vi) he has read this entire Agreement and fully
understands its terms, (vii) he is voluntarily entering into this
Agreement of his free will and deed, free from any coercion of any kind by
GFOL or any GFOL personnel and with a full understanding and appreciation
of these acts and their ramifications, (viii) he would not otherwise be
entitled to the Payments and the other consideration described herein
without providing GFOL with the foregoing Release, and (ix) in signing
this Agreement, he has not relied on any representations, promises,
3
or agreements of any kind made to him, except GFOL's promise to pay the
Conditional Future Payments and other benefits described herein.
7. This Agreement shall not become effective or enforceable until seven (7)
days following its execution by Executive. Prior to the end of this seven
(7)-day period, Executive may revoke his assent to this Agreement. Any
revocation must be in writing and delivered to Jonathan Flatow, General
Counsel, Greenfield Online, Inc., 21 River Road, Wilton, CT 06897, within
the seven (7)-day period. If Mr. Flatow does not receive a written
revocation before the end of this seven (7)-day period, this Agreement
will become fully enforceable at the end of this seven (7)-day period.
Executive understands that if he revokes this Agreement, he will not be
entitled to a portion of the consideration described in this Agreement.
8. MISCELLANEOUS: Each party shall bear all of the cost of any legal counsel
engaged to prepare or review this Agreement. In any action between the
parties relating to this Agreement, the prevailing party shall recover its
reasonable attorney fees from the non-prevailing party.
a. Entire Agreement: This Agreement constitutes the entire
understanding and agreement of the parties with regard to the
matters covered hereby, and no representations, documents, promises
or agreements, oral or otherwise, trade usage, or course of conduct
between the parties not embodied herein will be of any force or
effect.
b. Prior Agreement: Except for the provisions of the Employment
Agreement this Agreement supersedes any other prior agreements,
commitments and obligations between the respective parties and any
such prior agreement, commitment or obligation is hereby canceled
and has no further force and effect. This Agreement does not waive
any claims that either party may have against the other which arise
after the Effective Date of this Agreement.
c. Law; Venue; Jurisdiction: This Agreement will be governed and
construed in accordance with the laws of the State of Delaware.. Any
action or proceeding brought by either party, hereto, which is
related to this Agreement, shall be brought in a State court having
proper subject matter jurisdiction and located within New York, N.
Y.
d. Modification; Headings: This Agreement cannot be altered or modified
except by a written document signed by both parties. Captions used
herein are for convenience only, are not a part of this Agreement,
and shall not be used in construing it.
e. No Waivers: No failure by either party to exercise any power given
it under this Agreement, or to insist upon strict compliance by the
other party of any obligation hereunder, and no custom or practice
of the parties at variance with the terms of this Agreement will
constitute a waiver of the party's right to demand exact
4
compliance with the terms hereof.
f. Non-Exclusive: No remedy made available to any party by any of the
provisions of this Agreement is intended to be exclusive of any
other remedy, and each and every remedy shall be cumulative and in
addition to every other available remedy.
g. Severability: If any provision of this Agreement or the application
thereof, shall for any reason and to any extent be determined by a
court of competent jurisdiction to be invalid or unenforceable, the
remaining provisions of this Agreement shall be interpreted so as
best to reasonably effect the intent of the parties.
h. Rules of Construction: The language used in this Agreement shall be
deemed to be the language chosen by the parties to express their
mutual intent, and no rule of strict construction shall be applied
against any party.
i. Counterparts: This Agreement may be executed in counterparts, which,
when taken together as a whole shall constitute one agreement.
j. Confidentiality: The existence, nature and terms of this Agreement
and the reasons communicated for the elimination of Releasor's
position shall be considered Confidential Information pursuant to
the Non-Disclosure and Confidentiality provisions of the Employment
Agreement entered into by Releasor, and shall not be disclosed at
any time.
**** Signature pages follow****
5
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals to this
SETTLEMENT AGREEMENT AND RELEASE on the date set next to their names.
In the presence of
EXECUTIVE
___________________________________
_____________________________________
___________________________________
STATE OF CONNECTICUT )
( ss: , 2005
COUNTY OF )
Personally appeared EXECUTIVE, signer and sealer of the foregoing
instrument, and acknowledged the same to be his free act and deed, before me.
____________________________________
Notary Public
6
In the presence of
RELEASEE
GREENFIELD ONLINE, INC,
___________________________________
By___________________________________
Jonathan A. Flatow
Its Vice President and General Counsel
___________________________________
STATE OF CONNECTICUT )
( ss:
, 2005
COUNTY OF FAIRFIELD )
Personally appeared JONATHAN A. FLATOW, Vice President and General Counsel
of GREENFIELD ONLINE, INC., signer and sealer of the foregoing instrument, and
acknowledged the same to be his free act and deed as such officer, and the free
act and deed of said corporation, before me.
_____________________________________
Commissioner of the Superior Court
7
EXHIBIT B TO EMPLOYMENT AGREEMENT
GREENFIELD ONLINE, INC.
EMPLOYEE INVENTION ASSIGNMENT AND CONFIDENTIALITY AGREEMENT
In consideration of and as a condition of my employment with Greenfield
Online, Inc. (the "COMPANY"), I hereby agree with the Company as follows:
1. PURPOSE OF AGREEMENT. I understand that the Company is engaged in a
continuous program of research, development, production and marketing in
connection with its business and that it is critical for the Company to preserve
and protect its Proprietary Information (as defined in Section 7), its rights in
Inventions (as defined in Section 2) and in all related intellectual property
rights. Accordingly, I am entering into this Employee Invention Assignment and
Confidentiality Agreement ("AGREEMENT") as a condition of my employment with the
Company, whether or not I am expected to create inventions of value for the
Company.
2. DISCLOSURE OF INVENTIONS. I will promptly disclose in confidence to the
Company all inventions, improvements, designs, original works of authorship,
formulas, processes, compositions of matter, computer software programs,
databases, mask works and trade secrets ("INVENTIONS") that I make or conceive
or first reduce to practice or create, either alone or jointly with others,
during the period of my employment, whether or not in the course of my
employment, and whether or not such Inventions are patentable, copyrightable or
protectible as trade secrets.
3. WORK FOR HIRE; ASSIGNMENT OF INVENTIONS. I acknowledge and agree that
any copyrightable works prepared by me within the scope of my employment are
"works for hire" under the Copyright Act and that the Company will be considered
the author and owner of such copyrightable works. I agree that all Inventions
that (i) are developed using equipment, supplies, facilities or trade secrets of
the Company; (ii) result from work performed by me for the Company; or (iii)
relate to the Company's business or current or anticipated research and
development (collectively, "ASSIGNED INVENTIONS"), will be the sole and
exclusive property of the Company and are hereby irrevocably assigned by me to
the Company.
4. LABOR CODE 2870 NOTICE. I have been notified and understand that the
provisions of Sections 3 and 5 of this Agreement do not apply to any Invention
that qualifies fully under the provisions of Section 2870 of the California
Labor Code, which states as follows:
ANY PROVISION IN AN EMPLOYMENT AGREEMENT WHICH PROVIDES THAT AN EMPLOYEE
SHALL ASSIGN, OR OFFER TO ASSIGN, ANY OF HIS OR HER RIGHTS IN AN INVENTION
TO HIS OR HER EMPLOYER SHALL NOT APPLY TO AN INVENTION THAT THE EMPLOYEE
DEVELOPED ENTIRELY ON HIS OR HER OWN TIME WITHOUT USING THE EMPLOYER'S
EQUIPMENT, SUPPLIES, FACILITIES, OR TRADE SECRET INFORMATION EXCEPT FOR
THOSE INVENTIONS THAT EITHER: (1) RELATE AT THE TIME OF CONCEPTION OR
REDUCTION TO PRACTICE OF THE INVENTION TO THE EMPLOYER'S BUSINESS, OR
ACTUALLY OR DEMONSTRABLY
8
ANTICIPATED RESEARCH OR DEVELOPMENT OF THE EMPLOYER, OR (2) RESULT FROM
ANY WORK PERFORMED BY THE EMPLOYEE FOR THE EMPLOYER. TO THE EXTENT A
PROVISION IN AN EMPLOYMENT AGREEMENT PURPORTS TO REQUIRE AN EMPLOYEE TO
ASSIGN AN INVENTION OTHERWISE EXCLUDED FROM BEING REQUIRED TO BE ASSIGNED
UNDER CALIFORNIA LABOR CODE SECTION 2870(a), THE PROVISION IS AGAINST THE
PUBLIC POLICY OF THIS STATE AND IS UNENFORCEABLE.
5. ASSIGNMENT OF OTHER RIGHTS. In addition to the foregoing assignment of
the Assigned Inventions to the Company, I hereby irrevocably transfer and assign
to the Company: (i) all worldwide patents, patent applications, copyrights, mask
works, trade secrets and other intellectual property rights in any Assigned
Invention; and (ii) any and all Moral Rights (as defined below) that I may have
in or with respect to any Assigned Invention. I also hereby forever waive and
agree never to assert any and all Moral Rights I may have in or with respect to
any Assigned Invention, even after termination of my work on behalf of the
Company. "MORAL RIGHTS" means any rights to claim authorship of an Invention, to
object to or prevent the modification of any Invention, or to withdraw from
circulation or control the publication or distribution of any Invention, and any
similar right, existing under judicial or statutory law of any country in the
world, or under any treaty, regardless of whether or not such right is
denominated or generally referred to as a "moral right."
6. ASSISTANCE. I agree to assist the Company in every proper way to obtain
for the Company and enforce patents, copyrights, mask work rights, trade secret
rights and other legal protections for the Assigned Inventions in any and all
countries. I will execute any documents that the Company may reasonably request
for use in obtaining or enforcing such patents, copyrights, mask work rights,
trade secrets and other legal protections. My obligations under this section
will continue beyond the termination of my employment with the Company, provided
that the Company will compensate me at a reasonable rate after such termination
for time or expenses actually spent by me at the Company's request on such
assistance. If Executive refuses to execute any required document, after fifteen
(15) days prior written request documenting the reasons for such required
execution then and in that event, subject to the request being reasonable, and
Executives failing to document the reasons why the Executive shall not execute
the document, in such event he does hereby appoint the Secretary of the Company
as my his attorney-in-fact to execute documents on his behalf for this purpose.
Executive reserves his rights to proceed against the Company for any improper
use of its rights under this Section 6.
7. PROPRIETARY INFORMATION.
7.1 DEFINITION. I understand that my employment by the Company
creates a relationship of confidence and trust with respect to any information
of a confidential or secret nature that may be disclosed to me by the Company
that relates to the business of the Company or to the business of any Company,
subsidiary, affiliate, customer or supplier of the Company or any other party
with whom the Company agrees to hold information of such party in confidence
(collectively, "PROPRIETARY INFORMATION"). Proprietary Information includes, but
is not limited to, Inventions, marketing plans, product plans, business
strategies, financial information, forecasts, personnel information, customer
lists and domain names.
9
7.2 CONFIDENTIALITY. At all times, both during my employment and
after its termination, I will keep and hold all Proprietary Information in
strict confidence and trust. I will not use or disclose any Proprietary
Information without the prior written consent of the Company, except as may be
necessary to perform my duties as an employee of the Company for the benefit of
the Company. Upon termination of my employment with the Company, or earlier if
requested, I will promptly deliver to the Company, without retaining copies, all
documents and materials of any nature pertaining to my work with the Company. I
will not take with me any such documents or materials or copies thereof. I also
shall return to the Company all other property of the Company.
8. EXCEPTION TO PROPRIETARY INFORMATION AND CONFIDENTIALITY AS SAME ARE
DEFINED AND USED HEREIN. Notwithstanding anything contained herein to the
contrary it is understood and agreed hereby that any procedures, inventions,
marketing plans, business strategies, financial information, forecasts and
domain names that are generally known to the public, other than as a result of a
breach of this Agreement or the breach of any other law or agreement regarding
confidentiality or the protection of trade secrets, shall be excepted from and
not controlled by the Confidentiality and Proprietary definitions, requirements
and limitations herein with respect to Executive.
9. NO BREACH OF PRIOR AGREEMENT. I represent that my performance of all
the terms of this Agreement and my duties as an employee of the Company will not
breach any invention assignment, proprietary information, confidentiality or
similar agreement with any former employer or other party. I represent that I
will not bring with me to the Company or use in the performance of my duties for
the Company any documents or materials or intangibles of a former employer or
third party that are not generally available to the public or have not been
legally transferred to the Company.
10. EFFORTS; DUTY NOT TO COMPETE. I understand that my employment with the
Company requires my undivided attention and effort during normal business hours.
While I am employed by the Company, I will not, without the Company's express
prior written consent, provide services to, or assist in any manner, any
business or third party which competes with the current or planned business of
the Company.
11. NOTIFICATION. I hereby authorize the Company to notify my future
employers of the terms of this Agreement and my responsibilities hereunder.
12. NON-SOLICITATION. During my employment with the Company and for a
period of one (1) year thereafter, I will not directly or indirectly (a) solicit
or hire away employees or consultants of the Company for my own benefit or for
the benefit of any other person or entity; or (b) solicit or take away suppliers
or customers of the Company if the identity of the supplier or customer or
information about the supplier or customer relationship is a trade secret or is
otherwise deemed confidential information within the meaning of California law.
13. INJUNCTIVE RELIEF. I understand that in the event of a breach or
threatened breach of this Agreement by me the Company may suffer irreparable
harm and will therefore be entitled to injunctive relief to enforce this
Agreement. In any action to enforce this Agreement, I consent to the
jurisdiction of any state or federal court in Los Angeles County, California.
10
14. GOVERNING LAW; SEVERABILITY. This Agreement will be governed by and
interpreted in accordance with the internal laws of the State of California,
without regard to or application of choice-of-law rules or principles. In the
event that any provision of this Agreement is found by a court, arbitrator or
other tribunal to be illegal, invalid or unenforceable, then such provision
shall not be voided, but shall be enforced to the maximum extent permissible
under applicable law, and the remainder of this Agreement shall remain in full
force and effect. The prevailing party in any action to enforce this Agreement
shall be entitled to recover its attorneys' fees and costs.
15. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding of the parties with respect to the subject matter of this
Agreement, and supersedes all prior and contemporaneous understandings and
agreements, whether oral or written, between the parties hereto with respect to
the specific subject matter hereof.
16. PROTECTION OF AFFILIATES. I understand that this Agreement is intended
to and shall protect the Company's affiliated companies, including all Company
and subsidiary corporations and other entities.
17. "AT WILL" EMPLOYMENT. I understand that this Agreement does not
constitute a contract of employment or obligate the Company to employ me for any
stated period of time. I understand that I am an "at will" employee of the
Company and that my employment can be terminated at any time, for any reason or
for no reason, by either the Company or myself. This Agreement shall be
effective as of the first day of my employment by the Company, which is
February , 2005.
EXECUTIVE GREENFIELD ONLINE, INC.
THE COMPANY
___________________________________ By__________________________________
Lance Suder _________________(print name)
DATE: ____________, 2005 Its: ____________
DATE: ____________, 2005
11
SCHEDULE A TO EMPLOYMENT AGREEMENT
GREENFIELD ONLINE, INC.
SVP West Coast Operations
Salary = $200,000
Bonus potential at 100% = $160,000
100% of Bonus or $160,000 is based on the EPS target bonus program for senior
executives to be established by the Compensation Committee of the Board of
Directors
No bonus is due if the Company fails to meet 105% of the high end of its
quarterly revenue guidance or 105% of its quarterly EBITDA guidance. The BU
bonus attainment is to be paid quarterly but at a rate of 50% of what is earned.
The remaining 50% will be paid at the end of the year if the total annual target
is reached. If the target is exceeded then the bonus dollar potential grows at
the same percentage as the overachievement percentage of the target. No bonus is
due unless 80% of the target is attained. The bonus dollars to be paid at a
level below 100% are the same as the attainment percentage. The EPS bonus is to
be paid according to the Board plan that is to be determined.
12