EMPLOYMENT AGREEMENT
Employment Agreement ("Agreement") effected as of this 15th
day of March, 1999, by and between Directrix, Inc. (the "Company" or
"Employer"), a Delaware corporation, and Rich Kirby (the "Executive")
(collectively the Company and the Executive are referred to as the "Parties").
INTRODUCTION
WHEREAS, the Parties desire to enter into an Agreement and to
set forth herein the terms and conditions of the Executive's employment by the
Company. Accordingly, in consideration of the mutual covenants and agreement set
forth herein and the mutual benefits to be derived herefrom, and intending to be
legally bound hereby, the Company and the Executive agree as follows:
1. Employment
1.1 Duties. The Company shall employ the Executive on the
terms and conditions set forth in this Agreement, as Executive Vice President
and Secretary. The Executive accepts such employment with the Company and shall
perform and fulfill such duties as are assigned to him hereunder consistent with
his status as a senior executive of the Company, devoting his best efforts and
all of his professional time and attention, to the performance and fulfillment
of his duties and to the advancement of the best interests of the Company,
subject only to the direction, approval, and control of the Company's President
and/or Chief Executive Officer, and specific directives of the Board of
Directors of the Company (collectively, "Senior Management"). In addition, and
without any additional consideration, the Executive is and/or may be requested
to serve as a director or as an employee and officer of any or all subsidiaries
of the Company. Unless otherwise indicated by the context, the "Company" shall
include the Company and all its subsidiaries.
1.2 Place of Performance. In connection with his employment by
the Company, the Executive shall be based in the greater New York City
metropolitan area, except for required travel on Company business. The Executive
may be required to relocate on a permanent or temporary basis consistent with
business necessity in which event the Company agrees to pay Executive's
reasonable relocation expenses.
2. Term.
The Executive's employment under this Agreement shall commence as of
February 26, 1999 (the "Commencement Date") and shall continue uninterrupted up
to and including the hour of midnight of December 31, 2001 (the "Term"), unless
otherwise terminated as provided for in Sections 7.1 or 7.3. The Term shall be
extended for successive one-year periods beginning Janaury1, 2002 and each
one-year anniversary thereafter on the terms in effect on the date of such
renewal, unless a written notice not to extend is given by either party to the
other at least 90 days prior to the date the Terms otherwise would have expired.
3. Compensation.
3.1 Base Salary. During the Term the Executive shall receive a
minimum annual salary (the "Base Salary") payable in installments at such times
as the Company customarily pays its other senior executive employees (but in any
event no less often than bi-monthly), and calculated as follows:
3.1.1 The Base Salary to be paid to the Executive
during the Term shall be $192,938; and
3.1.2 For each Year beginning after December 31,
1999, the Company shall increase the Base Salary by an amount equal to five
percent (5%) of the prior year's Base Salary. Each such increase shall be
cumulative so that the Base Salary for each succeeding year shall include the
prior year's increase.
3.2 Health Insurance and Other Benefits. During the Term the
Executive shall be provided all employee benefits provided by the Company to its
management and all other Company salaried employees, including without
limitation, all medical insurance and life insurance plans or arrangements and
shall be entitled to participate in all pension, profit sharing, stock option
and any other employee benefit plan or arrangement established and maintained by
the Company for similarly situated employees, all subject, however, to the
Company rules and policies then in effect regarding participation therein.
During the Term, the benefits provided to the Executive, as described in the
preceding sentence, shall not be reduced except in accordance with the general
reduction of such benefits applicable to similarly situated employees generally,
but then only to the extent that such benefits are reduced for such other
similarly situated employees.
3.3 Automobile Allowance. During the Term, the Company
shall pay the Executive the sum of $850 per month as reimbursement for the costs
of owning, operating and parking of an automobile.
3.4 Health Club Membership. During the Term, the Company
shall pay the costs of one health club membership for the Executive.
4. Reimbursement of Expenses.
The Executive shall be reimbursed for all items of travel,
entertainment and miscellaneous expenses, including high speed home Internet
access, which the Executive reasonably incurs in connection with the performance
of his duties hereunder, provided that the Executive submits to the Company on
proper forms provided by the Company, such statements and other evidence
supporting such expenses as the Company may require and provided such expenses
meet the Company's policy concerning such matters.
5. Stock Options.
The Executive may be entitled to participate in all Company employee
stock option programs as determined by the Compensation Committee of the
Company's Board of Directors and approved by the Company's shareholders.
6. Vacations.
The Executive shall be entitled to not less than three (3) weeks of
paid vacation in any calendar year (prorated in any Year during which the
Executive is employed hereunder for less than the entire Year). Such vacation
shall be taken at such times as are consistent with the reasonable business
needs of the Company. Any vacation not taken during the year may not be taken by
the Executive in subsequent years except to the extent approved by the Company.
Upon termination of the Executive's employment for any reason, any vacation
earned by the Executive but not taken shall be forfeited.
7. Termination of Employment.
7.1 Death or Disability. If the Executive dies during the
Term, the Term shall terminate as of the date of the Executive's death. If the
Executive becomes Totally Disabled (as that term is defined below) for one
hundred eighty (180) days in the aggregate during any consecutive twelve-month
period during the Term, the Company shall have the right to terminate the Term
by giving the Executive thirty (30) days' prior written notice thereof, and upon
the expiration of such thirty-day period, the Executive's employment under this
Agreement shall terminate. If the Executive resumes his duties within thirty
(30) days after receipt of a notice of termination and continues to perform such
duties for four (4) consecutive weeks thereafter, the Term shall continue and
the notice of termination shall be considered null and void and of no effect.
Upon termination of the Term under this Section 7.1, the Company shall have no
further obligations or liabilities under this Agreement, except to pay to the
Executive's estate or the Executive, as the case may be: (i) the portion, if
any, that remains unpaid of the Base Salary for periods worked by the Executive
plus the excess of the Base Salary for the Severance Period over the amount
payable to the Executive under the Company's long-term disability plan during
such time (payable as if the Executive remained an employee of the Company); and
(ii) the amount of any expenses reimbursable in accordance with Section 4 above;
and (iii) any amounts due under any Company benefit, welfare or pension plan.
7.2 "Totally Disabled," as used herein, shall mean a mental or
physical condition which, in the reasonable opinion of an independent medical
doctor selected by the Company in its discretion, renders the Executive unable
or incompetent to carry out the material duties and responsibilities of the
Executive under this Agreement.
7.3 Discharge for Cause. The Company may discharge the
Executive for "Cause" upon written notice (as defined in Section 11.1), and
thereby immediately terminate his employment under this Agreement. For purposes
of this Agreement, the Company shall have "Cause" to terminate the Executive's
employment if the Executive, in the reasonable good faith judgment of the
Company, (i) materially breaches any of his agreements, duties or obligations
under this Agreement and has not cured such breach within ten (10) days after
Company's written notice, including, without limitation, the Executive's failure
to perform his duties hereunder, other than a failure resulting from his illness
or sickness; (ii) willfully fails to carry out a material lawful directive of
the Board of Directors, the Chairman of the Board, and the President of the
Company; (iii) embezzles or converts to his own use any funds of the Company or
any client or customer of the Company; (iv) converts to his own use or destroys
any property of the Company having a significant value; (v) is in material
violation of any of the Company policies and/or procedures as identified in the
Company's Employee Manual; or (vi) is habitually drunk or intoxicated. If the
Executive is discharged for Cause, he shall receive only those amounts earned
but not distributed under the relevant plan, program or practice of the Company.
The Company and the Executive acknowledge that if the Company engages in the
Adult Business (as defined in Section 9), such business could be considered
controversial in some localities and could result in civil or criminal
litigation against the Company based upon obscenity and similar laws. The
Parties agree that, notwithstanding the other provisions of this Section, the
naming of the Executive in any such suit, and any conviction of the Executive or
plea bargain, settlement or other disposition of such litigation relating to the
Executive, shall not be considered Cause for the termination of the Executive's
employment, so long as the conduct of the Executive upon which such claim was
based consisted of the Executive carrying out his duties in good faith and in
accordance with directions of management of the Company.
7.4 Termination by Executive. The Executive may
terminate the Term of his employment:
7.4.1 upon failure by the Company to comply with
the material provisions of this Agreement, which failure is not cured within
ten (10) days after written notice (referred to herein as "Good Reason"); or
7.4.2 upon a "Change in Control of the Company"
(as defined in Section 7.6.1 below) upon thirty (30) days' prior written notice
given at any time within eighteen (18) months after a Change in Control; or
7.4.3 for any reason other than Good Reason or
following a Change in Control of the Company, which termination shall be
considered a "Voluntary Termination" by Executive.
7.5 Severance upon Termination. If, during the Term, the
Executive's employment is terminated by the Company without Cause, or the
Executive shall terminate employment for Good Reason prior to a Change in
Control of the Company (the date of termination is referred to as the
"Termination Date"), then the Company shall pay the Executive in lieu of other
damages, an amount (the "Severance Payments") equal to his then current Base
Salary payable in installments at the same time the Company pays salary to its
other senior executive employees payable over the longer of (i) the balance of
the Term or (ii) one year (the period over which the Severance Payments are made
is referred to as the "Severance Period"). The Company shall have no liability
to make any Severance Payments as provided for in this paragraph unless (i) the
Executive executes a General Release in a form substantially as set forth in
Exhibit A attached hereto and (ii) the Executive complies with all provisions in
Section 8 (Restrictive Covenants). Such amount shall reduce the amount of any
other severance payment that otherwise would have been payable to the Executive
under any other Company plan, program or arrangement. In addition, the Company
shall maintain during the lesser of the balance of the Term immediately prior to
such termination or the Severance Period all employee benefit plans and programs
which the Executive participated in immediately prior to such termination other
than bonus, incentive compensation and similar plans based on performance,
provided the Executive's participation is permissible under the general terms
and provisions of such plans and applicable law. In the event of a Voluntary
Termination, the Executive shall receive only his earned but unpaid Base Salary
as of the date of his termination.
7.6 Change in Control.
.
7.6.1 Definitions. For purposes of this Section
7.6, a "Change in Control" shall mean a change in control of a nature that would
be required to be reported in response to Item 6(e) of Schedule 14A of
Regulation 14A, as in effect on the date of this Agreement, promulgated under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"); provided,
that whether or not required to be reported under such Item 6(e), without
limitation, such a Change in Control shall be deemed to have occurred if (i)any
"person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act) is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the Company
representing 25% or more of the combined voting power of the Company's then
outstanding securities; (ii) during any period of two consecutive years,
individuals who, at the beginning of such period, constitute the Board cease for
any reason to constitute at least a majority thereof unless the election, or the
nomination for election by the Company's stockholders, of each new director was
approved by a vote of at least three-fourths of the directors then still in
office who were directors at the beginning of the period; (iii) the Company's
stockholders approve an agreement to merge or consolidate the Company with
another corporation (other than a corporation 50% or more of which is controlled
by, or is under common control with, the Company); or (iv) any individual who is
nominated by the Board of Directors for election of the Board on any date fails
to be so elected as a direct or indirect result of any proxy fight or contested
election for positions on the Board of Directors; provided, however, that
notwithstanding the foregoing, no Change of Control shall be deemed to have
occurred pursuant to either clause (i) or (ii) above in the event of (and
notwithstanding any resultant change in the membership of the Board) an
acquisition by any group comprised of senior officers of the Company, including
the Executive, of 25% or more of the combined voting powerof the Company's then
outstanding securities.
7.6.2 Termination Payment. Notwithstanding any
provision of this Agreement, if, within eighteen (18) months following a Change
in Control of the Company, (a) the Executive's employment by the Company shall
be terminated by the Company other than as a result of the Executive becoming
Totally Disabled or for Cause or (b) the Executive terminates the Term pursuant
to Section 7.4.1, then the Executive shall be entitled to the benefits provided
below:
(1) The Company shall pay the Executive
full Base Salary through the Termination Date at the rate in effect at that
time, and shall pay the Executive for any vacation earned but not taken and the
amount, if any, of any bonus for a past Company fiscal year which has not yet
been awarded or paid;
(2) In lieu of any further salary
payments to the Executive for periods subsequent to the Termination Date, the
Company, subject to the limitation described below, shall pay to the Executive
on the 60th day following the Termination Date a lump sum amount equal to 2.99
times the sum of (i) the Base Salary and (ii) cash bonuses and other cash
compensation paid to the Executive during the 12 months preceding the
Termination Date ("Termination Payment"); and
(3) All stock options held by the
Executive shall be fully vested and remain outstanding for their full original
term unless sooner exercised.
7.6.3 Certain Additional Payments by the
Company.
(1) Anything in this Agreement
to the contrary notwithstanding, in the event it shall be determined that any
payment or distribution to or for the benefit of the Executive (whether paid
or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise, but determined without regard to any additional payments
required under this Section 7.6.3 (a "Payment") would be subject to the excise
tax imposed by Section 4999 of the Code or any interest or penalties are
incurred by the Executive with respect to such excise tax (such excise tax,
together with any such interest and penalties, are hereinafter collectively
referred to as the "Excise Tax"), then the Executive shall be entitled to
receive an additional payment (a "Gross-Up Payment") in an amount such that
after payment by the Executive of all taxes (including any interest or
penalties imposed with respect to such taxes), including, without limitation,
any income taxes (and any interest and penalties imposed with respect thereto)
and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an
amount of the Gross-Up Payment equal to the Excise Tax imposed upon the
Payments.
(2) Subject to the provisions
of Section 7.6.3(3), all determinations required to be made under this Section
7.6.3, including whether and when Gross-Up Payment is required and the amount
of such Gross-Up Payment and the assumptions to be utilized in arriving at such
determination, shall be made by Deloitte & Touche LLP (the "Accounting Firm");
provided, however, that the Accounting Firm shall not determine that no Excise
Tax is payable by the Executive unless it delivers to the Executive a written
opinion (the "Accounting Opinion") that failure to report the Excise Tax on the
Executive's applicable federal income tax return would not result in the
imposition of a negligence or similar penalty. In the event that Deloitte &
Touche LLP has served, at any time during the two years immediately preceding a
Change in Control Date, as accountant or auditor for the individual, entity or
group that is involved in effecting or has any material interest in the Change
in Control, the Executive shall appoint another nationally recognized accounting
firm to make the determinations and perform the other functions specified in
this Section 7.6.3 (which accounting firm shall then be referred to as the
Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall
be borne solely by the Company. Within fifteen (15) business days of the
receipt of notice from the Executive that there has been a Payment, or such
earlier time as is requested by the Company, the Accounting Firm shall make all
determinations required under this Section 7.6.3, shall provide to the Company
and the Executive a written report setting forth such determinations, together
with detailed supporting calculations, and, if the Accounting Firm determines
that no Excise Tax is payable, shall deliver the Accounting Opinion to the
Executive. Any Gross-Up Payment, as determined pursuant to this Section 7.6.3,
shall be paid by the Company to the Executive within five (5) days of the
receipt of the Accounting Firm's determination. Subject to the remainder of this
Section 7.6.3, any determination by the Accounting Firm shall be binding upon
the Company and the Executive. As a result of the uncertainty in the application
of Section 4999 of the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Gross-Up Payments which will not
have been made by the Company should have been made ("Underpayment"), consistent
with the calculations required to be made hereunder. In the event that it is
ultimately determined in accordance with the procedures set forth in Section
7.6.3(3) that the Executive is required to make a payment of any Excise Tax,
the Accounting Firm shall determine the amount of the Underpayment that has
occurred and any such Underpayment shall be promptly paid by the Company to or
for the benefit of the Executive.
(3) The Executive shall notify
the Company in writing of any claims by the Internal Revenue Service that, if
successful, would require the payment by the Company of the Gross-Up Payment.
Such notification shall be given as soon as practicable but no later than thirty
(30) days after the Executive actually receives notice in writing of such claim
and shall apprise the Company of the nature of such claim and the date on which
such claim is requested to be paid; provided, however, that the failure of the
Executive to notify the Company of such claim (or to provide any required
information with respect thereto) shall not affect any rights granted to the
Executive under this Section 7.6.3 except to the extent that the Company is
materially prejudiced in the defense of such claim as a direct result of such
failure. The Executive shall not pay such claim prior to the expiration of the
30-day period following the date on which he gives such notice to the Company
(or such shorter period ending on the date that any payment of taxes with
respect to such claim is due). If the Company notifies the Executive in
writing prior to the expiration of such period that it desires to contest such
claim, the Executive shall:
(i) give the Company any information
reasonably requested by the Company relating to such claim;
(ii) take such action in connection with
contesting such claim as the Company shall reasonably request
in writing from time to time, including, without limitation,
accepting legal representation with respect to such claim by
an attorney selected by the Company and reasonably acceptable
to the Executive;
(iii) cooperate with the Company in good
faith in order effectively to contest such claim; and
(iv) if the Company elects not to assume and
control the defense of such claim, permit the Company to
participate in any proceedings relating to such claim;
provided, however, that the Company shall bear and pay directly all
costs and expenses (including additional interest and penalties)
incurred in connection with such contest and shall indemnify and hold
the Executive harmless, on an after-tax basis, for any Excise Tax or
income tax (including interest and penalties with respect thereto)
imposed as a result of such representation and payment of costs and
expenses. Without limitation on the foregoing provisions of this
Section 7.6.3, the Company shall have the right, at its sole option, to
assume the defense of and control all proceedings in connection with
such contest, in which case it may pursue or forego any and all
administrative appeals, proceedings, hearings and conferences with the
taxing authority in respect of such claim, and may either direct the
Executive to pay the tax claimed and sue for a refund or contest the
claim in any permissible manner, and the Executive agrees to prosecute
such contest to a determination before any administrative tribunal, in
a court of initial jurisdiction and in one or more appellate courts, as
the Company shall determine; provided, however, that if the Company
directs the Executive to pay such claim and sue for a refund, the
Company shall advance the amount of such payment to the Executive, on
an interest-free basis, and shall indemnify and hold the Executive
harmless, on an after-tax basis, from any Excise Tax or income tax
(including interest or penalties with respect thereto) imposed with
respect to such advance or with respect to any imputed income with
respect to such advance; and further provided, that any extension of
the statute of limitations relating to payment of taxes for the taxable
year of the Executive with respect to which such contested amount is
claimed to be due is limited solely to such contested amount.
Furthermore, the Company's right to assume the defense of and control
the contest shall be limited to issues with respect to which a Gross-Up
Payment would be payable hereunder and the Executive shall be entitled
to settle or contest, as the case may be, any other issue raised by the
Internal Revenue Service or any other taxing authority.
(4) If, after the receipt by
the Executive of an amount advanced by the Company pursuant to Section 7.6.3(3)
the Executive becomes entitled to receive any refund with respect to such claim,
the Executive shall (subject to the Company's complying with the requirements of
Section 7.6.3(3)) promptly pay to the Company the amount of such refund
(together with any interest paid or credited thereon after taxes applicable
thereto). If, after the receipt by the Executive of an amount advanced by the
Company pursuant to Section 7.6.3(3) a determination is made that the Executive
shall not be entitled to any refund with respect to such claim, and the Company
does not notify the Executive in writing of its intent to contest such denial
of refund prior to the expiration of thirty (30) days after such determination,
then such advance shall be forgiven and shall not be required to be repaid and
the amount of such advance shall offset, to the extent thereof, the amount of
Gross-Up Payment required to be paid.
8. Restrictive Covenants.
8.1 INTENTIONALLY OMITTED.
8.2 Non-Disclosure of Information. The
Executive shall:
8.2.1 Never, directly or indirectly,
disclose to any person or entity for any reason, or use for his own personal
benefit, any "Confidential Information" as hereinafter defined; and
8.2.2 At all times take all reasonable
precautions necessary to protect from loss or disclosure by Executive or his
subordinates any and all documents or other information containing, referring,
or relating to such Confidential Information. Upon termination of employment
with the Company for any reason, the Executive shall promptly return to the
Company any and all documents or other tangible property containing, referring,
or relating to such Confidential Information, whether prepared by him or others.
8.2.3 Notwithstanding any provision to the
contrary in Section 8, this paragraph shall not apply to information which the
Executive is called upon by legal process (including, without limitation, by
subpoena or discovery requirement) to disclose or any information which has
become part of the public domain or is otherwise publicly disclosed through no
fault or action of the Executive.
8.2.4 For purposes of this Agreement,
"Confidential Information" shall mean any information relating in any way to the
business of the Company disclosed to or known to the Executive as a consequence
of, result of, or through the Executive's employment by the Company which may
consist of, but not be limited to, technical and non-technical information
about the Company's proprietary products, processes, programs, concepts, forms,
business methods, data, any and all financial and accounting data, employees,
marketing, customers, customer lists, and services and information
corresponding thereto acquired by the Executive during the term of the
Executive's employment by the Company. Confidential Information shall not
include any of such items which arc published or are otherwise part of the
public domain, or freely available from trade sources or otherwise.
8.2.5 Upon termination of this Agreement
for any reason, the Executive shall return to a designated officer of the
Company all equipment and/or tangible property then in the Executive's
possession or custody which belongs or relates to the Company, including,
without limitation, copies or reproductions of correspondence, memoranda,
reports, notebooks, drawings, photographs, data base, or any other documents or
electronically stored information which constitutes Confidential Information.
8.3 Trade Secrets - Intellectual Property Rights. The
Executive shall provide the Company with any copyrightable work, trade secrets
and other protectable intellectual property developed or produced by the
Executive while in the employ of the Company pursuant to this Agreement
(collectively, "Work Product").
8.3.1 All Work Product shall be considered
works made for hire and shall be the exclusive property of the Company and the
Company shall be considered the author and/or creator of such work for worldwide
copyright purposes and renewals and extensions thereof. The Company may
request, at its own cost and expense, that the Executive assist the Company in
obtaining worldwide patent, copyright and other property rights for the Work
Product.
8.3.2 If the Executive's rights in the
Work Product cannot be assigned to the Company, the Executive waives enforcement
of all such rights against the Company. The Executive further agrees to join in
any action, at the Company's sole cost and expense, to enforce or to procure a
waiver of such rights.
8.3.3 If the rights of the Work Product
cannot be waived or the Work Product is not deemed a "work for hire", the
Executive hereby grants the Company and its assigns a worldwide royalty-free
license to reproduce, distribute, modify, publicly display, sublicense and
assign such rights in all media or distribution technologies now known and
hereinafter developed or devised.
8.3.4 The Executive hereby appoints the
Company as his attorney in fact to execute and file any patent, copyright or
other lawful application with respect to the Work Product.
8.4 Non-Solicitation. During the Term and during the Severance
Period, the Executive will not, directly or indirectly, individually or on
behalf of other persons, solicit, aid or induce (i) any employee of the Company
or any of its affiliates to leave their employment with the Company or its
affiliates to accept employment with or render services to or with any person,
firm, corporation or other entity or assist or aid any other person, firm,
corporation or other entity in identifying or hiring away such employee, (ii)
any customer or vendor of the Company to alter its business relationship with
the Company or to purchase products or services then sold by the Company or its
affiliates from another person, firm, corporation or other entity or assist or
aid any other person or entity in identifying or soliciting any such customer or
vendor or (iii) any other remaining employee of the Company or its affiliates to
leave such employee's employment with the Company or its affiliates.
8.5 Conflict of Interest. The Executive shall exercise good
judgment and maintain high ethical standards in the course of his dealings so as
to preclude the possibility of a conflict between the interest of the Company
and his own personal interest. The Executive, therefore, has an obligation to
avoid any activity, agreement, personal interest, or other relationship or
situation which: (i) conflicts with the Company's best interest; (ii) interferes
with the Executive's responsibility to serve the Company to the best of the
Executive's ability; or (iii) gives the appearance of self dealing.
8.5.1 This policy requires that the
Executive shall not have any relationship, nor engage in any activity that
might impair the independence or judgment in the execution of the Executive's
duties. The Executive shall not have any direct or direct personal financial
interests in suppliers of property, goods or services that would affect his
decisions or actions on the Company's behalf. The Executive shall not accept
gifts, benefits, or unusual hospitality that would be reasonably likely to
influence the Executive in the performance of his duties.
8.5.2 If any possible conflict of interest situation arises,
the Executive is responsible to immediately disclose the facts to the President
or Chief Executive Officer of the Company so that an evaluation may determine
whether a problem exists and, if so, to eliminate it.
8.6 Injunctive Relief/Legal Remedies. The Parties agree that
the remedy at law for any breach by the Executive of this Agreement and
specifically the provisions of Section 8 ("Restrictive Covenants"), will be
inadequate and that the Company or any of its subsidiaries or other successors
or assigns shall be entitled to injunctive relief without bond. Such injunctive
relief shall not be exclusive, but shall be in addition to any other rights and
remedies Company or any of its subsidiaries or their successors or assigns might
have for such breach.
8.6.1 The Executive acknowledges: (i)
that compliance with the restrictive provisions contained in Section 8 is
necessary to protect the business and goodwill of the Company and its
subsidiaries, and (ii) that a breach of this Agreement will result in
irreparable and continuing damage to the Company, for which monetary damages
may not provide adequate relief. Consequently, the Executive agrees that in the
event of a breach or threatened breach of any of the restrictive covenants
described herein, the Company, at its discretion, shall be entitled to see
both: (i) a preliminary and/or permanent injunction in order to prevent such
damage, or continuation of such damage, and (ii) monetary damages as
determinable. Nothing herein, however, shall be construed to restrict and/or
prohibit the Company from pursuing any and all other remedies; the Executive
acknowledges that all remedies are cumulative. The Executive specifically
acknowledges that the Executive shall account for and pay over to the Company
any profits, monies, accruals or other benefits derived or received by the
Executive as a result of any transaction constituting a breach of the
Restrictive Covenants in Section 8.
8.6.2 If any legal action arises to
enforce the Company's trade secrets, the prevailing party shall be entitled to
recover any and all damages, as well as all costs and expenses, including
reasonable attorney's fees incurred in enforcing or attempting to enforce the
Company's trade secrets.
9. Nature of Company Business.
The Executive acknowledges that the Company, through one or more of its
affiliated companies, is currently involved in providing technical and creative
services to companies which produce and distribute television networks which
feature explicit and cable version adult movies and features and other
programming depicting sexual situations and/or nudity (the "Adult Business"). In
addition, the Executive acknowledges that the Company, through one or more of
its affiliated companies, may become involved in the Adult Business. The
Executive acknowledges that he will likely be exposed, from time to time, to one
or more aspects of the Adult Business during the course of his employment by the
Company. Furthermore, the Executive confirms that he is currently comfortable
working in an environment where some or all aspects of the Adult Business are
present and would be comfortable working for a company engaged in the Adult
Business. If, at any time, the Executive's view on the foregoing changes or the
Executive otherwise become uncomfortable with the nature of the Company's
business, the Executive agrees to promptly inform Senior Management. The Company
will work with the Executive to explore mutually acceptable means of
accommodating the Executive's concerns which, both parties acknowledge, may
result in the termination of the Executive's employment. Termination of the
Executive's employment occasioned by the Executive's desire not to be associated
with the Company as a result of the nature of its business shall be treated as a
Voluntary Termination by the Executive without Good Reason.
10. Arbitration.
10.1 Any and all disputes, controversies and claims arising
out of, or relating to, this Agreement, or with respect to the interpretation of
this Agreement, or the rights or obligations of the Parties and their successors
and permitted assigns, whether by operation of law or otherwise, shall be
settled and determined by arbitration in New York City, New York, pursuant to
the then existing rules of the American Arbitration Association ("AAA"), for
commercial arbitration. Each party shall pay their own legal fees. The losing
party shall pay the fees and costs imposed by the AAA; if neither party clearly
prevails in the arbitration, the parties shall request that the AAA appointed
arbitrator apportion the AAA's fees and costs between the parties.
10.2 The Parties covenant and agree that the decision of the
AAA shall be final and binding and hereby waive their right to appeal therefrom.
11. Miscellaneous.
11.1 Notices. Any notice, demand or communication required or
permitted under this Agreement shall be in writing and shall either be
hand-delivered to the other party or mailed to the addresses set forth below by
registered or certified mail, return receipt requested, or sent by overnight
express mail or courier or facsimile to such address, if a party has a facsimile
machine. Notice shall be deemed to have been given and received (i) when
hand-delivered or after three (3) business days when deposited in the U.S. Mail,
(ii) when transmitted and received by facsimile or sent by express mail properly
addressed to the other party. The addresses are:
To the Company:
Directrix, Inc.
536 Broadway, 10th Floor
New York, New York 10012
Facsimile: (212) 941-7846
Attn: Chief Executive Officer
To the Executive:
Rich Kirby
80 Kent Drive
Cortlandt, New York 10566
Either party may change the foregoing addresses at any time by
notice given in the manner herein provided.
11.2 Integration; Modification. This Agreement, the
Indemnification Agreement executed contemporaneously herewith in the form
attached hereto as Exhibit B and the Company's Employee Manual constitutes the
entire understanding and agreement between the Company and the Executive
regarding its subject matter, and supersedes all prior negotiations and
agreements or interpretations, whether oral or written. This Agreement may not
be modified except by written agreement signed by the Executive and a duly
authorized officer of the Company.
11.3 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties, including their respective heirs,
executors, successors and assigns, except that the Executive may not assign this
Agreement.
11.4 Waiver of Breach. No waiver by either party of any
condition or of the breach by the other of any term or covenant contained in
this Agreement, whether conduct or otherwise, in any one (1) or more instances
shall be deemed or construed as a further or continuing waiver of any such
condition or breach or a waiver of any other condition, or the breach of any
other term or covenant set forth in this Agreement. Moreover, the failure of
either party to exercise any right hereunder shall not bar the later exercise
thereof with respect to other future breaches.
11.5 Governing Law. This Agreement shall be governed by the
internal laws of the State of New York, except that Section 10 shall be governed
by the Federal Arbitration Act, Title 9, U.S. Code.
11.6 Headings. The headings of the various sections and
paragraphs have been included herein for convenience only and shall not be
considered in interpreting this Agreement.
11.7 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one (1) and the same instrument.
11.8 Due Authorization. The Company represents that all
corporate action required to authorize the execution, delivery and performance
of this Agreement has been duly taken.
IN WITNESS WHEREOF, this Agreement has been executed by the
Executive and on behalf of the Company by its duly authorized officer on the day
and year first above written.
DIRECTRIX, INC.
Date By: --------------------------
J. Roger Faherty, Chairman
EXECUTIVE:
Date By: -----------------------------
Richard Kirby, Chief Operating
Officer, Executive Vice
President and Secretary
EXHIBIT A
GENERAL RELEASE AND SEPARATION AGREEMENT
1. GENERAL RELEASE. In consideration of the payment of salary through
______, ___ together with accrued vacation pay and __ weeks severance and for
other good and valuable consideration, Rich Kirby ("Executive") hereby forever
releases, discharges, acquits and forgives DIRECTRIX, INC., its officers,
directors, stockholders, employees, affiliates, successors and assignees
(collectively, the "Company") from any and all claims, known or unknown, which
Executive or Executive's heirs, successors or assigns have or may have against
the Company and any and all liability which the Company may have to Executive
whether denominated claims, demands, causes of action, obligations, damages or
liabilities arising from any and all bases, however, denominated, including but
not limited to claims of discrimination under the U.S. Age Discrimination in
Employment Act, the U.S. Americans with Disabilities Act of 1990, the U.S.
Family and Medical Leave Act of 1993, Title VII of the United States Civil
Rights Act of 1964, 42 U.S.C. Section 1981, the New York Human Rights Law,
including New York Executive Law Section 296, Section 8-107 of the
Administrative Code and Charter of New York City, the Worker Adjustment and
Retraining Notification Act of 1988 or any similar state law or any other
federal, state or local law, or any other law, rule or regulation, or any
workers' compensation or disability claims under any such laws. This release
relates to claims arising from and during Executive's relationship with the
Company or as a result of the termination of such relationship. This release is
for any relief, no matter how denominated, including, but not limited to, wages,
back pay, front pay, compensatory damages or punitive damages. This release
shall not apply to the obligations set forth in this Agreement or any other
claims that may arise after the date on which Executive signs this Agreement.
Notwithstanding any other provision of this Agreement, this release is not
intended to interfere with Executive's right to file a charge with the U.S.
Equal Employment Opportunity Commission (or any state human rights or similar
commission) in connection with any claim Executive believes Executive may have
against the Company. However, by executing this Agreement, Executive hereby
agrees to waive the right to recover in any proceeding Executive may bring
before the U.S. Equal Opportunity Commission (or any state human rights or
similar commission) or in any proceeding brought by the U.S. Equal Employment
Opportunity Commission (or any state human rights or similar commission) on
Executive's behalf.
This release shall be binding upon and inure to the benefit of the
parties, their successors, assigns and personal representatives.
2. NONDISCLOSURE OF PROPRIETARY INFORMATION AND RETURN OF COMPANY
PROPERTY. Executive agrees (i) to promptly surrender and deliver to the Company
all records, materials, equipment, drawings and data of any nature pertaining to
his employment by the Company or any invention or any trade secrets,
confidential information, knowledge, data or other information of the Company
("Confidential Information"), (ii) not to take with him any description
containing or pertaining to any Confidential Information which he may have
produced or obtained during his employment, (iii) not to disclose any
Confidential Information to any third party without the Company's prior written
consent and (iv) to return to the Company all of its property.
3. GOODWILL. The purpose of this Agreement is to arrive at a
mutually agreeable and amicable basis upon which to separate Executive's
employment with the Company the Company. Executive and the Company
agree to refrain from any criticisms of or disparaging comments about each
other, except as may be required by law or judicial process.
4. WAIVER. Executive understands that he may consider whether to agree
to the terms contained herein for a period of 21 days after the date hereof.
Accordingly, Executive may sign and return this Agreement by ______, ___ to
acknowledge his understanding of and agreement with the foregoing. Executive
acknowledges that, prior to signing this Agreement, he was advised by the
Company to consult with an attorney. This Agreement will become effective,
enforceable and irrevocable seven days after the date on which Executive signs
it (the "Effective Date"). During the seven-day period prior to the Effective
Date, Executive may revoke his agreement to accept the terms hereof by
indicating in writing to the Company his intention to revoke. [If Executive
exercises his right to revoke hereunder, Executive shall forfeit his right to
receive the benefits provided under the Employment Agreement and, if such
benefits have already been provided, shall immediately reimburse the Company for
the cost of such benefits.]
Signed this __ day of ______, ____
DIRECTRIX, INC. RELEASOR
- ------------------------ ------------------------
Name:
Title: