EMPLOYMENT AGREEMENT
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THIS AGREEMENT, dated as of January 26, 2000, is between EarthWeb Inc., a
Delaware corporation ("Company"), with its principal place of business at 3 Park
Avenue, New York, NY, and Harold Miltsch, an individual residing at
_______________________________________________ ("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
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his/her 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
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rendered 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.
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
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equipment for personal purposes 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
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for any breach of the provisions of Section 3, Section 4 or Section 5 of this
Agreement shall be 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
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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
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and 14 shall survive the termination of this Agreement.
Section 11. Representations and Warranties. Employee represents and
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warrants that Employee is not under any obligations to any third party which
could interfere with Employee's performance under this Agreement, and that
Employee's performance of his 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,
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enforceability, 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
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for 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
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existing 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
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he/she 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:
Employee
Sign: ______________________
Date: ______________________
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Amendment Number One to Employment Agreement
Amendment Number One to Employment Agreement dated as of September 4, 2000
between EarthWeb Inc. ("Company" or "EarthWeb") and Harold Miltsch ("Employee").
Whereas, Company and Employee entered into that certain Employment Agreement
(the "Original Employment Agreement") dated as of January 26, 2000;
Whereas, Company and Employee desire to amend the Original Employment Agreement;
Now, therefore, for good and valid consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereby agree as follows:
1. Defined Terms. All capitalized terms used herein that are not defined
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herein shall have the meanings ascribed thereto in the Original Employment
Agreement.
2. Addendum to Employment Agreement. The following Addendum to Employment
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Agreement is hereby adopted by the parties and incorporated at the end of the
Employment Agreement as part of the terms of Employee's employment with the
Company:
Addendum to Employment Agreement - Harold Miltsch (employee)
Title
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Vice President, Chief Marketing Officer
Annual Base Salary
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$195,000 (effective 8/1/00)
Bonus
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Employee shall be eligible for a bonus of up to 25% of Employee's annual base
salary.
MBOs
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Employee shall also be eligible for an annual $80,000 bonus based on the
achievement of certain MBOs agreed to by the Company and Employee.
Severance
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If EarthWeb terminates Employee's employment without "cause", EarthWeb will
provide to Employee severance in an amount equal to twelve (12) months of the
Employee's then current base pay, provided employee executes and delivers a
release in a form prepared by the Company.
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For the purpose of this section, "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; material breach of any provision of this Agreement; habitual or
willful neglect of duties; breach of fiduciary duty to the Company involving
personal profit; or significant violation of Company policy or other
contractual, statutory or common law duties to the Company.
Commuting Expenses
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EarthWeb will continue to provide Employee with reimbursement for hotel
accommodations, airline travel and airport car service for a period of up to
six-months from the date of this Amendment. If you complete your relocation
prior to the expiration of that six-month period, the Company's obligation to
reimburse you for such expenses shall cease.
3. Effect of Amendment. Except as otherwise amended by this Amendment Number
One, the Original Employment Agreement remains in full force and effect.
AGREED TO BY:
EARTHWEB INC. Harold Miltsch
By ______________________ By ______________________
Date: ______________________ Date: ______________________
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