EXHIBIT 10(r)
EMPLOYMENT AGREEMENT
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AGREEMENT made the 24th day of September, 1997 by and between
CulturalAccessWorldwide Inc., a Delaware corporation (the "Company"), and Isabel
Valdes (the "Employee").
W I T N E S S E T H :
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WHEREAS, the Company wishes to assure itself of the services of the
Employee, and the Employee wishes to serve in the employ of the Company, upon
the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Employment, Term.
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1.1 The Company agrees to employ the Employee, and the Employee
agrees to serve in the employ of the Company, for the term set forth in Section
1.2, in the position and with the responsibilities, duties and authority set
forth in Section 2 and on the other terms and conditions set forth in this
Agreement.
1.2 The term of the Employee's employment under this Agreement shall
be the period commencing on the date hereof and continuing through September 30,
2000, unless sooner terminated in accordance with this Agreement.
2. Position, Duties. The Employee shall serve the Company as
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President of the Market Connections Group of the Company and will be a member of
the executive management board of the Company. The Employee shall report to,
and shall have such duties and responsibilities consistent with such position as
are reasonably requested of her by the President of the Company, or his designee
or successor. The Employee shall perform her duties and responsibilities
hereunder faithfully and diligently. The Employee shall devote her full
business time and attention to the performance of her duties and
responsibilities hereunder. The Employee hereby represents that she is not
bound by any confidentiality agreements or restrictive covenants which restrict
or may restrict her ability to perform her duties hereunder, and agrees that she
will not enter into any such agreements or covenants during the term of her
employment hereunder, except such restrictive covenants or confidentiality
agreements which are required by the Company. The Employee shall be based in
the Palo Alto, California area. Notwithstanding anything to the contrary
contained herein, it is understood and agreed that the Employee may serve on
boards of directors of other companies and organizations so long as such other
companies and organizations do not, directly or indirectly, compete with the
Company or any member of the Company Group (as hereinafter defined). The
Company acknowledges that
prior to the date hereof the Employee has assisted other businesses on a
contingent fee basis and that any such contingent fees payable to the Employee
for services rendered prior to the date hereof are and shall be the property of
the Employee.
3. Compensation.
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3.1 Base Salary. During the term of this Agreement, in consideration
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of the performance by the Employee of the services set forth in Section 2 and
her observance of the other covenants set forth herein, the Company shall pay
the Employee, and the Employee shall accept, a base salary at the rate of
$100,000 per annum, payable in accordance with the standard payroll practices of
the Company. In addition to the base salary payable hereunder, the Employee may
be entitled to receive merit increases in salary during the term hereof in
amounts and at such times as shall be determined by the President of the Company
in his sole discretion. In no event shall the failure to grant any such
increase (or the amount of any such increase) give rise to a claim by the
Employee under this Agreement.
3.2 Other Compensation. (i) The Employee shall be granted employee
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stock options to purchase 30,000 shares of common stock, $.01 par value per
share ("Company Common Stock"), of the Company pursuant to the Company's
employee stock option plan. Such options shall vest ratably on the anniversary
of the date hereof over a three-year period contingent upon continued
employment; provided, however, that, in accordance with the option certificate
for such options, in the event that the Employee's employment hereunder is
terminated as a result of the Employee's death or disability, such options shall
fully vest. The option price shall be $6.00 per share. Such options shall be
fully subject to the terms and conditions of the stock option plan of the
Company governing such options.
(ii) In addition, the Employee shall be eligible to receive an annual
bonus of up to $45,000 of her base salary based on an annual performance review
by the Board of Directors of the Company.
4. Expense Reimbursement. During the term of the Employee's
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employment by the Company pursuant to this Agreement, consistent with the
Company's policies and procedures as may be in effect from time to time, the
Company shall reimburse the Employee for all reasonable and necessary out-of-
pocket expenses incurred by her in connection with the performance of her duties
hereunder, upon the presentation of proper accounts therefor in accordance with
the Company's policies.
5. Other Benefits. During the term of the Employee's employment by
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the Company pursuant to this Agreement, the Employee shall be entitled to
receive five weeks paid vacation time per annum and such other benefits and
customary medical and life insurance as are from time to time made available to
other similarly situated employees of the Company, on the same terms as are
available to such similarly situated employees, it being understood that the
Employee shall be required to make the same contributions and payments in order
to receive any of such benefits as may be required of such similarly situated
employees.
6. Termination of Employment.
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6.1 Death. In the event of the death of the Employee during the term
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of this Agreement, the Company shall pay to the estate or other legal
representative of the Employee the salary provided for in Section 3.1 (at the
annual rate then in effect) accrued to the Employee's date of death and not
theretofore paid, and the estate or other legal representative of the Employee
shall have no further rights under this Agreement.
6.2 Disability. If the Employee shall become incapacitated by reason
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of sickness, accident or other physical or mental disability and shall for a
period of thirty (30) consecutive days be unable to perform her normal duties
hereunder, with or without reasonable accommodation, the employment of the
Employee hereunder may be terminated by the Company upon thirty (30) days' prior
written notice to the Employee. Promptly after such termination, the Company
shall pay to the Employee the salary provided for in Section 3.1 (at the annual
rate then in effect) accrued to the date of such termination and not theretofore
paid. Neither the Employee nor the Company shall have any further rights or
obligations under this Agreement, except as provided in Sections 7, 8, 9 and 10.
6.3 Due Cause. The employment of the Employee hereunder may be
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terminated by the Company at any time during the term of this Agreement for Due
Cause (as hereinafter defined). In the event of such termination, the Company
shall pay to the Employee the salary provided for in Section 3.1 (at the annual
rate then in effect) accrued to the date of such termination and not theretofore
paid to the Employee, and, after the satisfaction of any claim of the Company
against the Employee arising as a direct and proximate result of such Due Cause,
neither the Employee nor the Company shall have any further rights or
obligations under this Agreement, except as provided in Sections 7, 8, 9 and 10.
For purposes hereof, "Due Cause" shall mean (a) a material breach of any of the
Employee's obligations hereunder (it being understood that any breach of the
provisions of Sections 2, 7, 8 or 9 hereof shall be considered material);(b) the
use of alcohol, or unprescribed drugs by the Employee to an extent that such use
interferes with the performance by the Employee of her responsibilities
hereunder; or (c) that the Employee repeatedly or intentionally causes damage to
the relations of any member of the Company Group with its clients, suppliers or
employees; or (d) the continued refusal by the Employee to carry out any
reasonable lawful order or instruction of the Company or the repeated commission
of other acts of insubordination; or (e) that the Employee, in carrying out her
duties hereunder, has been guilty of (i) willful or gross neglect or (ii)
willful or gross misconduct, resulting in either case in material harm to any
member of the Company Group (as hereinafter defined); or (f) that the Employee
has been charged with (i) a felony or (ii) any lesser crime or offense involving
moral turpitude. In the event of an occurrence under this Section 6.3, the
Employee shall be given written notice by the Company that it intends to
terminate the Employee's employment for Due Cause under this Section, which
written notice shall specify the act or acts upon the basis of which the Company
intends so to terminate the Employee's employment. If the basis for such
written notice is an act or acts described in clause (a) or (b) above (and not
involving moral turpitude), the Employee shall be given ten (10) days to cease
or correct the performance (or nonperformance) giving rise to such written
notice and, upon failure of the Employee within such ten (10) days to cease or
correct such performance (or nonperformance), the Employee's employment by the
Company shall automatically be terminated hereunder for Due Cause.
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6.4 Other Termination by the Company. The Company may terminate the
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Employee's employment prior to the expiration of the term of this Agreement for
whatever reason it deems appropriate; provided, however, that in the event that
such termination is not pursuant to Sections 6.1, 6.2 or 6.3, the Company shall
continue to pay to the Employee (or her estate or other legal representative in
the case of the death of the Employee subsequent to such termination), in the
same periodic installments as her annual salary was paid, the salary provided
for in Section 3.1 (at the annual rate then in effect) until the earlier of (a)
the then scheduled expiration of the term hereof or (b) six (6) months following
the date of such termination plus one (1) additional month for each full year of
service hereunder. Neither the Employee nor the Company shall have any further
rights or obligations under this Agreement, except as provided in Sections 7, 8,
9 and 10.
6.5 Rights to Benefits. Upon termination of employment under any
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provision contained in this Section 6, rights and benefits of the Employee, her
estate or other legal representative under the employee benefit plans and
programs of the Company, if any, will be determined in accordance with the terms
and provisions of such plans and programs. Neither the Employee nor the Company
shall have any further rights or obligations under this Agreement, except as
provided in Sections 7, 8, 9 and 10.
7. Confidential Information.
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7.1 (a) The Employee shall, during the Employee's employment with
the Company and at all times thereafter, treat all confidential material (as
hereinafter defined) of the Company or any of the Company's subsidiaries,
affiliates or parent entities (the Company and the Company's subsidiaries,
affiliates and parent entities being hereinafter collectively referred to as the
"Company Group") confidentially. The Employee shall not, without the prior
written consent of the President of the Company, disclose such confidential
material, directly or indirectly, to any party, who at the time of such
disclosure is not an employee or agent of any member of the Company Group, or
remove from the Company's premises any notes or records relating thereto, copies
or facsimiles thereof (whether made by electronic, electrical, magnetic,
optical, laser, acoustic or other means), or any other property of any member of
the Company Group. The Employee agrees that all confidential material, together
with all notes and records of the Employee relating thereto, and all copies or
facsimiles thereof in the possession of the Employee (whether made by the
foregoing or other means) are the exclusive property of the Company.
(b) For the purposes hereof, the term "confidential material" shall
mean all information in any way concerning the activities, business or affairs
of any member of the Company Group or any of the customers of any member of the
Company Group, including, without limitation, information concerning trade
secrets, together with all sales and financial information concerning any member
of the Company Group and any and all information concerning projects in research
and development or marketing plans for any products or projects of the Company
Group, and all information concerning the practices and customers of any member
of the Company Group; provided, however, that the term "confidential material"
shall not include information which becomes generally available to the public
other than as a result of a disclosure by the Employee.
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7.2 Promptly upon the request of the Company, the Employee shall
deliver to the Company all confidential material relating to any member of the
Company Group in the possession of the Employee without retaining a copy
thereof, unless, in the written opinion of counsel for the Company delivered to
the Employee, either returning such confidential material or failing to retain a
copy thereof would violate any applicable Federal, state, local or foreign law,
in which event such confidential material shall be returned without retaining
any copies thereof as soon as practicable after such counsel advises in writing
to the Employee that the same may be lawfully done.
7.3 In the event that the Employee is required, by oral questions,
interrogatories, requests for information or documents, subpoena, civil
investigative demand or similar process, to disclose any confidential material
relating to any member of the Company Group, the Employee shall provide the
Company with prompt notice thereof so that the Company may seek an appropriate
protective order and/or waive compliance by the Employee with the provisions
hereof.
8. Non-Competition.
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8.1 The Employee acknowledges that the services to be rendered by her
to the Company are of a special and unique character. The Employee agrees that,
in consideration of her employment hereunder, the Employee will not, (a) (A)
during the term of this Agreement and (B) until three (3) years from the date of
termination of the Employee's employment with the Company or any other member of
the Company Group, directly or indirectly, (w) engage, whether as principal,
agent, investor, distributor, representative, stockholder, employee, consultant,
volunteer or otherwise, with or without pay, in any activity or business
venture, which is competitive with the business of providing ethnic market
research and business consulting on ethnic marketing strategies of the Company
or any member of the Company Group, (x) solicit or entice or endeavor to solicit
or entice away from any member of the Company Group any person who was during
the prior six (6) month period or is at the time of solicitation, a director,
officer, employee, agent or consultant of such member of the Company Group, on
the Employee's own account or for any person, firm, corporation or other
organization, whether or not such person would commit any breach of such
person's contract of employment by reason of leaving the service of such member
of the Company Group, (y) solicit or entice or endeavor to solicit or entice
away any of the clients or customers or active prospects of any member of the
Company Group, either on the Employee's own account or for any other person,
firm, corporation or organization, or (z) employ any person who was during the
prior six (6) month period or is at the time of solicitation, a director,
officer or employee of any member of the Company Group or any person who is
known to be in possession of any confidential information or trade secrets
relating to the business of any member of the Company Group, or (b) during the
term of this Agreement and until two (2) years from the date of termination of
the Employee's employment with the Company or any member of the Company Group,
take any action or make any statement, the effect of which would be, directly or
indirectly, to impair the good will of any member of the Company Group or the
business reputation or good name of any member of the Company Group, or be
otherwise detrimental to the Company, including any action or statement
intended, directly or indirectly, to benefit a competitor of any member of the
Company Group. The Company agrees that at any time during the term of this
Agreement and until two (2) years from the date of termination of the Employee's
employment with the
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Company or any member of the Company Group, take any action or make any
statement, the effect of which would be, directly or indirectly, to impair the
business reputation or good name of the Employee, or be otherwise detrimental to
the Employee.
8.2 The Employee and the Company agree that if, in any proceeding,
the court or authority shall refuse to enforce the covenants herein set forth
because such covenants cover too extensive a geographic area or too long a
period of time, any such covenant shall be deemed appropriately amended and
modified in keeping with the intention of the parties to the maximum extent
permitted by law.
8.3 The Employee expressly acknowledges and agrees that the covenants
and agreements set forth in this Section 8 are reasonable in all respects, and
necessary in order to protect, maintain and preserve the value and goodwill of
the Company Group, as well as the proprietary and other legitimate business
interests of the members of the Company Group. The Employee acknowledges and
agrees that the covenants and agreements of the Employee set forth in this
Section 8 constitute a significant part of the consideration given by the
Employee to the Company in exchange for the salary and benefits provided for in
this Agreement, and are a material reason for such payment.
8.4 Notwithstanding anything to the contrary contained in this
Section 8, it is understood and agreed that the Employee shall be permitted,
subsequent to the termination of the Employee's employment hereunder, to work in
an academic, in-house or general market research position.
8.5 Notwithstanding anything to the contrary contained in this
Section 8, it is understood and agreed that the restrictions set forth in clause
(a)(B)(w) of Section 8.1 hereof shall not apply in the event that the Company
has not, on or prior to the second anniversary of the date hereof, consummated
an initial public offering of the Company Common Stock.
9. Intellectual Property.
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9.1 Any and all intellectual property, inventions or software made,
developed or created by the Employee (a) during the term of this Agreement or
(b) within a period of one hundred and twenty (120) days after the termination
of the Employee's employment with the Company or any other member of the Company
Group, which reasonably relate to the business of the Company or any other
member of the Company Group or which reasonably relate to any business conducted
by the Company during the term of the Employee's employment by the Company
(each, an "Invention"), whether at the request or suggestion of the Company or
otherwise, whether alone or in conjunction with others, and whether during
regular working hours of work or otherwise, shall be promptly and fully
disclosed by the Employee to the President and/or the Board of Directors of the
Company and shall be the Company's exclusive property as against the Employee,
and the Employee shall promptly deliver to the President and/or the Board of
Directors all papers, drawings, models, data and other material relating to any
Invention made, developed or created by him as aforesaid. In addition, the
Employee covenants and agrees to disclose to the Board of Directors any
Invention developed or created by the Employee during the term of this
Agreement, whether or not such Invention
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relates to the business being conducted by the Company or any other member of
the Company Group at the time of development or creation of such Invention.
9.2 The Employee hereby expressly acknowledges and agrees that any
Invention developed or created by the Employee during the term of this Agreement
which reasonably relates to the business of the Company or any other member of
the Company Group or which reasonably relates to the business conducted by the
Company during the Employee's employment by the Company shall be considered
"works made for hire" within the meaning of the Copyright Act of 1976, as
amended (17 U.S.C. (S) 101). Each such Invention as well as all copies of such
Invention in whatever medium fixed or embodied, shall be owned exclusively by
the Company as of the date of creation.
9.3 The Employee shall, upon the Company's request and without any
payment therefor, execute any documents necessary or advisable in the opinion of
the Company's counsel to direct issuance of patents or copyrights of the Company
with respect to such Invention as are to be in the Company's exclusive property
as against the Employee under this Section 9 or to vest in the Company title to
such inventions as against the Employee, the expense of securing any such patent
or copyright, to be borne by the Company. In addition, the Employee agrees not
to file any patent, copyright or trademark applications related to such
Invention.
10. Equitable Relief. In the event of a breach or threatened breach
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by the Employee of any of the provisions of Sections 7, 8 or 9 of this
Agreement, the Employee hereby consents and agrees that the Company shall be
entitled to pre-judgment injunctive relief or similar equitable relief
restraining the Employee from committing or continuing any such breach or
threatened breach or granting specific performance of any act required to be
performed by the Employee under any of such provisions, without the necessity of
showing any actual damage or that money damages would not afford an adequate
remedy and without the necessity of posting any bond or other security. The
parties hereto hereby consent to the jurisdiction of the federal courts located
in the Northern District of California and the state courts located in such
District for any proceedings under this Section 10. Nothing herein shall be
construed as prohibiting the Company from pursuing any other remedies at law or
in equity which it may have.
11. Successors and Assigns.
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11.1 Assignment by the Company. The Company may assign this
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Agreement to any member of the Company Group or to any entity which acquires
substantially all the assets and business of the Company, and the Employee
hereby consents to such assignment.
11.2 Assignment by the Employee. The Employee may not assign this
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Agreement or any part hereof without the prior written consent of the President
of the Company.
12. Governing Law. This Agreement shall be deemed a contract made
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under, and for all purposes shall be construed in accordance with, the laws of
the State of California or such other State in which the Employee's principal
business office is located if her principal
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business office no longer is in the State of California, applicable to contracts
to be performed entirely within such State.
13. Entire Agreement. This Agreement contains all the understandings
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and representations between the parties hereto pertaining to the subject matter
hereof and supersede all undertakings and agreements, whether oral or in
writing, if there be any, previously entered into by them with respect thereto;
provided, however, that Section 8 shall not serve as a limitation of the terms
of any other non-competition agreement between the Employee and any member of
the Company Group.
14. Modification and Amendment; Waiver. The provisions of this
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Agreement may be modified, amended or waived, but only upon the written consent
of the party against whom enforcement of such modification, amendment or waiver
is sought and then such modification, amendment or waiver shall be effective
only to the extent set forth in such writing. No delay or failure on the part
of any party hereto in exercising any right, power or remedy hereunder shall
effect or operate as a waiver thereof, nor shall any single or partial exercise
thereof or any abandonment or discontinuance of steps to enforce such right,
power or remedy preclude any further exercise thereof or of any other right,
power or remedy.
15. Notices. All notices, requests or instructions hereunder shall
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be in writing and delivered personally, sent by telecopier or sent by registered
or certified mail, postage prepaid, as follows:
If to the Company:
2200 Clarendon Boulevard, 11th Floor
Arlington, Virginia 22201
Attention: President
Telecopy: 703-812-9552
Telephone: 800-522-3447
If to the Employee:
1329 Waverley Street
Palo Alto, California 94301
Telecopy No.: (650) 327-7024
Telephone No.: (650) 322-9991
with a copy to:
Coblentz, Cahen, McCabe & Breyer LLP
222 Kearney Street, 7th Floor
San Francisco, California 94108
Attention: Barry Reder, Esq.
Telecopy No.: (415) 989-1663
Telephone No.: (415) 391-4800
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Any of the above addresses may be changed at any time by notice given as
provided above; provided, however, that any such notice of change of address
shall be effective only upon receipt. All notices, requests or instructions
given in accordance herewith shall be deemed received on the date of delivery,
if hand delivered or telecopied, and two business days after the date of
mailing, if mailed.
16. Arbitration. Any controversy or claim arising out of or relating
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to this Agreement, or any breach hereof, shall, except as provided in Section 10
hereof, be settled by arbitration in accordance with the rules of the American
Arbitration Association then in effect and judgment upon the award rendered by
the arbitrator may be entered in any court having jurisdiction thereof. The
arbitration shall be held in San Francisco, California. The arbitrator shall
award attorneys' fees to the prevailing party.
17. Expenses. Each of the parties hereto shall bear her or its own
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costs and expenses, including attorneys fees and disbursements, incurred in
connection with this Agreement and the transactions contemplated hereby.
18. Titles. Titles of the sections of this Agreement are intended
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solely for convenience and no provision of this Agreement is to be construed by
reference to the title of any section.
19. Severability. Should any provision of this Agreement be held by
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a court of competent jurisdiction to be enforceable only if modified, such
holding shall not affect the validity of the remainder of this Agreement, the
balance of which shall continue to be binding upon the parties hereto with any
such modification to become a part hereof and treated as though originally set
forth in this Agreement. The parties further agree that any such court is
expressly authorized to modify any such unenforceable provision of this
Agreement in lieu of severing such unenforceable provision from this Agreement
in its entirety, whether by rewriting the offending provision, deleting any or
all of the offending provision, adding additional language to this Agreement, or
by making such other modifications as it deems warranted to carry out the intent
and agreement of the parties as embodied herein to the maximum extent permitted
by law. The parties expressly agree that this Agreement as so modified by the
court shall be binding upon and enforceable against each of them. In any event,
should one or more of the provisions of this Agreement be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions hereof, and if such
provision or provisions are not modified as provided above, this Agreement shall
be construed as if such invalid, illegal or unenforceable provisions had never
been set forth herein.
20. Survivorship. The respective rights and obligations of the
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parties hereunder shall survive any termination of this Agreement to the extent
necessary to the intended preservation of such rights and obligations.
* * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
CULTURALACCESSWORLDWIDE INC.
By /s/Liam Donohue
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Name: Liam Donohue
Title: Vice President
/s/Isabel Valdes
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Isabel Valdes