EMPLOYMENT AGREEMENT
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THIS AGREEMENT is made on February 23, 1998 by and between MICHAEL E.
KOLOWICH of 116 Monument Street, Concord, Massachusetts 01742 (the 'Executive'),
and DESKTOP DATA, INC., a Delaware corporation with a principal place of
business at 80 Blanchard Road, Burlington, Massachusetts 01803 (the 'Company').
WHEREAS, the Company shall be the surviving entity of a merger (the
'Merger') with Individual, Inc., pursuant to an Agreement and Plan of Merger and
Reorganization dated November 2, 1997 (the 'Merger Agreement'); and
WHEREAS, the Executive is Chief Executive Officer of Individual, Inc. as of
the time of the Merger; and
WHEREAS, the Company desires to (i) employ the Executive to render services
to the Company as an employee consultant and (ii) appoint the Executive to serve
on its Board of Directors, and the Executive desires to accept such employment
and appointment, all on the terms and conditions hereinafter provided;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in consideration of the mutual
covenants and obligations herein contained, the parties hereto agree as follows:
1. Positions and Responsibilities
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(a) Employment Position. The Executive shall serve the Company as
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Senior Executive Consultant under the terms and conditions of this Agreement. As
Senior Executive Consultant the Executive shall report to the Chief Executive
Officer of
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the Company, and his service shall be subject to the direction and control of
the Chief Executive Officer and the Board of Directors (the 'Board', which term
shall include any committee to which the Board may delegate its authority with
respect to matters subject to this Agreement).
(b) Board Position. On or about the effective date of the Merger the
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Board shall nominate and appoint the Executive as a director of the Company.
Thereafter, during the term of this Agreement, the Board shall designate and
nominate the Executive as a director of the Company and, if elected by the
stockholders of the Company, the Executive shall accept such position and
diligently perform the duties arising from such position. For his first term as
a director the Board shall nominate and appoint the Executive to the position of
Vice Chairman.
(c) Responsibilities through April 30, 1998. For the period beginning
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with the commencement of the term of this Agreement (as set forth in Paragraph
2) and ending April 30, 1998 (the 'Transition Period'), the Executive shall be
engaged in the performance of his duties hereunder, which shall include (i)
assisting the Chief Executive Officer in matters relating to transition and
restructuring arising from the Merger and marketing and repositioning the
Company ('Transition Duties'), as well as (ii) general matters of strategy
development, cultivation and implementation of major alliances, acquisitions and
mergers, investor and public relations, and any other matters and duties as may
reasonably be requested by the Chief Executive Officer and the Board. During the
Transition Period the Executive shall devote substantially all of his business
time, attention and services to the diligent, faithful and competent discharge
of such duties for the successful operation of the Company's business. Any
business activity that the
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Executive wishes to engage in on his own time shall not conflict or compete with
any interest of the Company or interfere with the Executive's performance of his
duties hereunder. During the Transition Period the Executive shall not have any
managerial or operational responsibility, other than service on a board of
directors, in any enterprise, firm, corporation, trust or other business entity
other than the Company; provided, however, that nothing herein shall prevent the
ownership by the Executive of an equity interest in any business entity,
provided that such ownership does not involve any managerial or operational
responsibility other than serving on the board of directors. Any directorships
of corporations other than the Company must be approved in writing by the Board
in advance, with the exception of directorships or similar positions with
charitable and professional organizations or family-owned trusts or businesses
(provided that such activities do not interfere with Executive's performance of
his duties hereunder).
(d) Responsibilities After April 30, 1998. For the remainder of the
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term of this Agreement after April 30, 1998 (the 'Remaining Term'), the
Executive shall serve the Company as shall be mutually agreed by the parties.
During the Remaining Term the Executive's duties, which he shall discharge
diligently, faithfully and competently, shall be unchanged except that, unless
otherwise mutually agreed between the parties, the Executive shall have no
Transition Duties. The Executive may engage in any activity on his own time
without Board approval, provided the same does not conflict or compete with any
interest of the Company or interfere with the Executive's performance of his
duties hereunder.
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2. Term
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The term of this Agreement shall commence on the effective date of the
Merger, and shall expire on the third anniversary thereof, unless terminated
sooner in accordance with the provisions of Paragraph 6.
3. Compensation
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(a) Salary. During the Transition Period, the Company shall pay
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to the Executive salary at the annual rate of Two Hundred Fifty Thousand Dollars
($250,000.00), payable in such installments as may be established, and from time
to time modified, by the Company for executive compensation. During the
Remaining Term, the Company shall pay to the Executive salary at the annual rate
of Fifty-five Thousand Dollars ($55,000.00), payable as hereinabove specified.
Salary payments shall be subject to all applicable federal and state
withholding, payroll and other taxes. The Executive's salary may be adjusted at
any time by mutual agreement of the parties, but shall not be lowered from the
amounts hereinabove specified for the Transition Period and the Remaining Term,
respectively.
(b) Benefits. During the term of this Agreement, subject to the
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provisions of Paragraph 4, the Executive shall be reimbursed for all of his
business-related travel and other business-related expenses in accordance with
the Company's policies from time to time in effect, and shall also be furnished
by the Company, for use in the Company's business, with such executive support
services, including without limitation office space, clerical support, lap top
computer, network access, cellular telephone and service, and Wildfire telephone
answering and forwarding, as are customarily provided by the Company, all at the
Company's expense. The Executive will
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also be entitled to participate on the same basis with all other management
employees of the Company in the Company's standard benefits package generally
available for all other officers and employees of the Company, with respect to
group health, disability and life insurance programs and retirement and profit
sharing plans, to the extent such benefit plans exist.
(c) Stock Options. Beginning on the Annual Meeting of Stockholders
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following the Company's fiscal year ending in 1998, the Executive shall receive
non-qualified stock options in the same amount, and at the same times, as are
granted to non-employee directors of the Company under the Company's 1995 Non-
Employee Director Option Plan (the 'Director Option Plan'); provided, however,
that Executive shall not be entitled to the Initial Grant of options provided
under the Director Option Plan for non-employee directors upon their initial
election to the Board; and provided, further, however, that with respect to any
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fiscal year such options shall not be granted to the Executive if the Executive
shall not have attended at least 75% of the meetings of the Board for such
fiscal year.
4. Acceptance of Full Time Employment
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If at any time during the Remaining Term the Executive shall accept a
full time position with an employer not the Company, the Executive shall
immediately resign his employment. If following such resignation the Executive
continues to serve as a non-employee director of the Company, the Company shall
pay to the Executive such compensation and benefits, including without
limitation stock options under the Director Stock Option Plan, as are
customarily paid to a non-employee director.
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5. Assumption of Individual, Inc. Stock Options
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The parties acknowledge and agree that the Executive has been granted
options to purchase 1,000,000 shares of the stock of Individual, Inc. (the
'Options'), pursuant to the Individual, Inc. Amended and Restated 1989 Stock
Option Plan, two Individual, Inc. Non-Qualified Stock Option Agreements both
dated September 3, 1996, the Individual, Inc. Incentive Stock Option Agreement
dated September 3, 1996 and the July 31, 1997 Option Repricing Memorandum (the
'Option Agreements'). The Company shall assume all obligations with respect to
the Options, on the same terms and conditions found in the Option Agreements
(which are incorporated herein by reference), except that:
(i) The Options will be exercisable for that number of shares of the
Company's Common Stock equal to the product of the number of
shares of Individual, Inc. Common Stock that were purchasable
under such Options immediately prior to the effective date of the
Merger multiplied by the Exchange Ratio (as defined in the Merger
Agreement); and
(ii) The per share exercise price for the shares of the Company's
Common Stock issuable upon exercise of the Options will be equal
to the quotient determined by dividing the exercise price per
share of Individual, Inc. Common Stock at which the Options were
exercisable immediately prior to the effective date of the Merger
by the Exchange Ratio.
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Any exercise of Options shall be subject to restrictions under pooling-of-
interest accounting rules to the extent applicable.
6. Termination
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The Executive's employment under this Agreement shall terminate prior
to the expiration of the term set forth in Paragraph 3 upon the occurrence of
any of the following events:
(i) The death or disability of the Executive. For the purposes of
this Paragraph, 'disability' shall mean the inability of the
Executive, by reason of accident or illness, to perform
substantially the duties of his employment, which inability
persists for a continuous period of three (3) months.
(ii) The giving of thirty (30) days' written notice by either party to
other of the notifying party's election to terminate this
Agreement for any reason other than for cause (as hereinafter
defined).
(iii) The giving of fourteen (14) days' written notice by the
Executive to the Company of the Executive's election to terminate
this Agreement for cause. As used in this subparagraph, 'for
cause' means any change in the Executive's title, position,
responsibilities, compensation, benefits or location which is not
consented to by the Executive.
(iv) Immediately after determination by resolution of the Board, duly
adopted by a majority of its members excluding the Executive, to
terminate this Agreement for cause. As used in this
subparagraph,
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'for cause' means: (A) the substantial and continuing willful
breach by the Executive of his obligations under this Agreement,
such breach not having been cured within thirty (30) days after
the Executive's receipt of notice thereof from the Board, which
notice shall set forth in reasonable detail the nature of such
breach; provided, however, that this subparagraph shall not apply
to acts or omissions by the Executive in the exercise of his
honest business judgment; (B) the commission by the Executive of
an act of fraud or substantial and material breach of fiduciary
duty; or (C) the conviction of the Executive of any felony or of
any misdemeanor involving moral turpitude or misappropriation of
Company property.
7. Non-Competition; Non-Disclosure
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In connection with his employment by the Company pursuant to the terms
of this Agreement, the Executive shall execute simultaneously herewith the
Noncompetition, Nondisclosure and Developments Agreement attached hereto as
Annex A, the terms and conditions of which are incorporated herein by reference.
8. No Conflict
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The Executive warrants and represents that the performance of his
obligations under this Agreement does not and will not violate or conflict with
any agreement relating to confidentiality, non-competition or exclusive
employment to which the Executive is or was subject. The Executive shall,
during the term of this Agreement,
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not enter into any agreement conflicting with or causing any breach of the
provisions of this Agreement.
9. Waiver
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The failure of any party hereto at any time or times to require
performance of any provision of this Agreement shall in no manner affect that
party's right at a later time to enforce the same provision. Any waiver by any
party of the breach of any provision contained in this Agreement in any one or
more instances shall not be deemed to be a waiver of any other breach of the
same provision or any other provisions contained herein.
10. Notices
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Any notices or other communications required or permitted under this
Agreement shall be sufficiently given if delivered in hand or if sent by
registered or certified mail, postage prepaid, and if to the Executive,
addressed to him as follows:
Mr. Michael E. Kolowich
116 Monument Street
Concord, MA 01742
With a copy to:
Medverd & Simmons, P.C.
175 Federal Street, 8th Floor
Boston, MA 02110
Attention: Richard L. Medverd, Esquire
And if to the Company, addressed to it as follows:
Desktop Data, Inc.
80 Blanchard Road
Burlington, MA 01803
Attention: Donald McLagan, President
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With a copy to:
Testa, Hurwitz & Thibeault, LLP
125 High Street
Boston, MA 02110
Attention: Lawrence S. Wittenberg, Esquire
Either party may at any time change his or its address for notice hereunder by
giving notice thereof to the other party in accordance with the provisions of
this Paragraph 10.
11. Entire Agreement Amendment
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Except as otherwise provided herein, this Agreement constitutes the
entire Agreement between the parties with respect to the subject matter hereof,
and supersedes all proposals, negotiations and understandings of any nature
whatsoever. This Agreement may be amended only by a written instrument signed
by both parties.
12. Severability
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If any of the provisions of this Agreement, or any part thereof, are
hereafter construed to be invalid or unenforceable, the same shall not affect
the remaining provisions, which shall be enforced to the fullest extent
permitted by law, without regard to the invalid portion or portions.
13. Assignment
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The Executive acknowledges that the services to be rendered by him
hereunder are unique and personal in nature. Accordingly, the Executive may not
assign any of his rights or delegate any of his duties or obligations under this
Agreement, except with the written consent of the Company. The rights and
obligations of the Company under this Agreement shall inure to the benefit of,
and shall be binding upon, the successors and assigns of the Company. The
rights of the Executive hereunder shall
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inure to the benefit of the Executive and, where the context so requires, to his
personal representatives.
14. Further Assurances
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If at any time either party hereto shall consider or be advised that
any further agreement, assurances or other documents are reasonably necessary or
desirable to carry out the provisions hereof and the transactions contemplated
hereby, the parties hereto shall execute and deliver any and all such agreements
or other documents, and do all things reasonably necessary or appropriate to
carry out fully the provisions hereof.
15. Consent
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Whenever the consent or approval of a party is required or permitted
hereunder, such consent shall be in writing, and shall not be unreasonably
withheld.
16. Governing Law
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This Agreement, the employment relationship contemplated herein and
any claim arising from such relationship, whether or not arising under this
Agreement, shall be governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts, and this Agreement shall be deemed to be
performable in Massachusetts.
17. Captions
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The captions of the several paragraphs and subparagraphs of this
Agreement have been inserted for convenience only and do not constitute a part
of this Agreement.
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18. Counterparts
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This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto
as a sealed instrument, as of the date first above written.
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MICHAEL E. KOLOWICH
DESKTOP DATA, INC.
By:
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Name:
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Title:
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ANNEX A
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EMPLOYEE NONCOMPETITION,
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NONDISCLOSURE AND DEVELOPMENTS AGREEMENT
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In consideration and as a condition of my employment by Desktop Data, Inc.
(the 'Company'), I hereby agree with the Company as follows:
1. During the period of my employment by the Company and for one
year thereafter, I agree that I will not, directly or indirectly, alone or as a
partner, officer, director, employee or stockholder, or consultant to, of any
entity, (a) engage in any business activity which is in competition in the
United States with the products or services being developed, manufactured or
sold by the Company or (b) solicit, interfere with or endeavor to entice away
any employee of the Company; provided however, that this Agreement does not
prohibit me from holding up to five percent (5%) of the publicly traded shares
of a public company.
2. I will not at any time, whether during or after the termination
of my employment, reveal to any person or entity any of the trade secrets or
confidential information concerning the organization, business or finances of
the Company or of any third party which the Company is under an obligation to
keep confidential (including but not limited to trade secrets or confidential
information respecting inventions, products, designs, methods, know-how,
techniques, systems, processes, software programs, works of authorship, customer
lists, projects, plans and proposals), except as may be required in the ordinary
course of performing my duties as an employee of the Company; and I shall keep
secret all matters entrusted to me and shall not use or attempt to use any such
information in any manner which may injure or cause loss or may be calculated to
injure or cause loss whether directly or indirectly to the Company (it being
understood that any use of such information in the exercise of honest business
judgment in connection with my performance of services for the Company shall not
constitute a violation of this clause).
Further, I agree that during my employment I shall not make, use or
permit to be used any notes, memoranda, reports, lists, records, drawings,
sketches, specifications, software programs, data, documentation or other
materials of any nature relating to any matter within the scope of the business
of the Company or concerning any of its dealings or affairs otherwise than for
the benefit of the Company. I further agree that I shall not, after the
termination of my employment, use or permit to be used any such notes,
memoranda, reports, lists, records, drawings, sketches, specifications, software
programs, data, documentation or other materials, it being agreed that all of
the foregoing shall be and remain the sole and exclusive property of the Company
and that immediately upon the termination of my employment I shall deliver all
of the foregoing, and all copies thereof, to the Company, at its main office.
3. If at any time or times during my employment, I shall (either
alone or with others) make, conceive, discover or reduce to practice any
invention, modification, discovery,
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design, development, improvement, process, software program, work of authorship,
documentation, formula, data, technique, know-how, secret or intellectual
property right whatsoever or any interest therein (whether or not patentable or
registrable under copyright or similar statutes or subject to analogous
protection) (herein called 'Developments') that (a) relates to the business of
the Company or any of the products or services being developed, manufactured or
sold by the Company or which may be used in relation therewith or (b) results
from tasks assigned me by the Company, such Developments and the benefits
thereof shall immediately become the sole and absolute property of the Company
and its assigns, and I shall promptly disclose to the Company (or any persons
designated by it) each such Development and hereby assign any rights I may have
or acquire in the Developments and benefits and/or rights resulting therefrom to
the Company and its assigns without further compensation and shall communicate,
without cost or delay, and without publishing the same, all available
information relating thereto (with all necessary plans and models) to the
Company.
Upon disclosure of each Development to the Company, I will, during my
employment and at any time thereafter, at the request and cost of the Company,
sign, execute, make and do all such deeds, documents, acts and things as the
Company and its duly authorized agents may reasonable require:
(a) to apply for, obtain and vest in the name of the Company
alone (unless the Company otherwise directs) letters patent, copyrights or
other analogous protection in any country throughout the world and when so
obtained or vested to renew and restore the same; and
(b) to defend any opposition proceedings in respect of such
applications and any opposition proceedings or petitions or applications
for revocation of such letters patent, copyright or other analogous
protection.
In the event the Company is unable, after reasonable effort, to secure
my signature on any letters patent, copyright or other analogous protection
relating to a development, whether because my physical or mental incapacity or
for any other reason whatsoever, I hereby irrevocably designate and appoint the
Company and its duly authorized officers and agents as my agent and attorney-in-
fact, to act for and in my behalf and stead to execute and file any such
application or applications and to do all other lawfully permitted acts to
further the prosecution and issuance of letters patent, copyright or other
analogous protection thereon with the same legal force and effect as if executed
by me.
4. I agree that any breach of this Agreement by me will cause
irreparable damage to the Company and that in the event of such breach the
Company shall have, in addition to any and all remedies of law, the right to an
injunction, specific performance or other equitable relief to prevent the
violation of my obligations hereunder.
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5. I understand that this Agreement does not create an obligation on
the Company or any other person or entity to continue my employment.
6. I represent that my performance of all of the terms of this
Agreement, the Employment Agreement between myself and the Company and my
service as an employee and a director of the Company does not and will not
breach any agreement to keep in confidence proprietary information acquired by
me in confidence or in trust prior to my employment with the Company. I have not
entered into, and I agree I will not enter into, any agreement either written or
oral in conflict herewith.
7. Any waiver by the Company of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent breach
of such provision or any other provision hereof.
8. I hereby agree that each provision herein shall be treated as a
separate and independent clause, and the unenforceability of any one clause
shall in no way impair the enforceability of any of the other clauses herein.
Moreover, if one or more of the provisions contained in this Agreement shall for
any reason be held to be excessively broad as to scope, activity or subject so
as to be unenforceable at law, such provision or provisions shall be construed
by the appropriate judicial body by limiting or reducing it or them, so as to be
enforceable to the maximum extent compatible with the applicable law as it shall
then appear.
9. My obligations under this Agreement shall survive the termination
of my employment regardless of the manner of such termination and shall be
binding upon my heirs, executors, administrators and legal representatives.
10. The term 'Company' shall include Desktop Data, Inc. and any of
its predecessors, successors, subsidiaries, subdivisions or affiliates
(including, without limitation, NewsEdge Corporation). The Company shall have
the right to assign this Agreement to its successors and assigns, and all
covenants and agreements hereunder shall inure to the benefit of and be
enforceable by said successors or assigns.
11. This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the undersigned has executed this Agreement as a
sealed instrument as of the 3rd day of November, 1997.
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Michael E. Kolowich
Employment Agreement - Desktop Data Inc. and Michael E. Kolowich
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