{"id":39328,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/employment-agreement-marketwatch-com-inc-and-joan-platt.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agreement-marketwatch-com-inc-and-joan-platt","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agreement-marketwatch-com-inc-and-joan-platt.html","title":{"rendered":"Employment Agreement – MarketWatch.com Inc. and Joan Platt"},"content":{"rendered":"
 EMPLOYMENT AGREEMENT \n\n
     This Employment Agreement (the \"Agreement\"), is entered into as of \nDecember 1, 1999 (the \"Commencement Date\"), by MarketWatch.com, Inc. \n(the \"Company\") and Joan Platt (the \"Executive\").\n\n<\/p>
     1.      Term of Employment:  The term of employment of Executive by the \nCompany hereunder shall commence on the Commencement Date and shall \ncontinue thereafter on the same terms and conditions for a period of \nthree years unless earlier terminated pursuant to Sections 6 or 7 \n(such term being hereinafter referred to as the \"Employment \nPeriod\").  The Employment Period shall be extended automatically \nwithout further action by either party as of the third anniversary \nof the Commencement Date for a period of one year, unless prior to \nsuch date the Company or the Executive shall notify the other in \nwriting of its or her intention not to renew the Agreement, in which \ncase the Agreement shall terminate at the end of the original term. \n If the Employment Period is extended, it shall thereafter be \nreferred to as the Employment Period.\n\n<\/p>
     2.      Title; Duties:  The Executive shall serve as Chief Financial Officer \nof the Company reporting to the Chief Executive Officer of the \nCompany.  Executive shall perform those duties and responsibilities \ninherent in such position including such duties and responsibilities \nas the Chief Executive Officer shall assign.  The Executive agrees \nto devote her full time and best efforts, attention and energies to \nthe business and interests of the Company.  Executive shall serve \nthe Company faithfully and to the best of her ability in such \ncapacities, devoting her full business time, attention, knowledge, \nenergy and skills to such employment; provided, however, the Company \nacknowledges that Executive may serve on the board of directors of \nother companies with the prior approval of the Company's Board of \nDirectors (the \"Board\").  Executive shall travel as reasonably \nrequired in connection with the performance of her duties hereunder. \n\n<\/p>
     3.      Compensation:  The Company shall pay and Executive shall accept as \nfull consideration for  her services hereunder, compensation \nconsisting of the following:\n\n<\/p>
     3.1     Base Salary.  $250,000 per year base salary during the first \nyear of the term of this Agreement; $260,000 per year base \nsalary during the second year of the term of this Agreement; \n$275,000 per year base salary during the third year of the \nterm of this Agreement; and at least $275,000 per year base \nsalary (subject to increase by the Board) during successive \nyears of the term of this Agreement if the Employment Period \nis extended past the original three-year term pursuant to \nSection 1 hereof.  \"Base Salary\" shall mean the base salary \nprovided for in this Section 3.1.  Base Salary is payable in \ninstallments in accordance with the Company's normal payroll \npractices, less such deductions or withholdings as are \nrequired by law.\n\n<\/p>
     3.2     Bonus.  Annual target bonus at the rate and in accordance with \nthe specifications on Exhibit A attached hereto.\n\n<\/p>
     3.3     Equity Option.  Executive received a grant of an option to \npurchase 150,000 shares of Common Stock of the Company (the \n\"Option\").\n\n<\/p>
     4.      Benefits:  Subject to all applicable eligibility requirements, and \nlegal limitations, Executive will be able to participate in any and \nall 401(k), vacation, medical, dental, life and long-term disability \ninsurance and\/or other benefit plans which from time to time may be \nestablished for other employees of the Company.\n\n<\/p>
     5.      Reimbursement of Expenses:  The Company will reimburse Executive for \nall reasonable travel, entertainment and other expenses incurred or \npaid by the Executive in connection with, or related to, the \nperformance of her duties, responsibilities or services under this \nAgreement subject to review by the Board or its compensation \ncommittee, if applicable.\n\n<\/p>
     6.      Benefit Upon Termination of Employment Period.\n\n<\/p>
     6.1     Disability.  In the event of the permanent disability (as \nhereinafter defined) of Executive during the Employment \nPeriod, the Company shall have the right, upon written notice \nto Executive, to terminate Executive's employment hereunder, \neffective upon the 30th calendar day following the giving of \nsuch notice (or such later day as shall be specified in such \nnotice).  Upon the effectiveness of such termination, (i) the \nCompany shall have no further obligations hereunder, except to \npay and provide, subject to applicable withholding, (A) all \namounts of Base Salary accrued, but unpaid, at the effective \ndate of termination, (B) Executive's target bonus, and (C) all \nreasonable unreimbursed business-related expenses, \n(ii) Executive's Option shall immediately vest and become \nexercisable to the extent of one additional year of vesting \nand shall remain exercisable for the periods specified in the \nOption and (iii) Executive shall have no further obligations \nhereunder other than those provided for in Sections 9 and 10 \nhereof.  All amounts payable to Executive pursuant to this \nSection 6.1 shall be payable within 30 days following the \neffectiveness of the termination of Executive's employment.  \nFor purposes of this Agreement, \"permanent disability\" shall \nbe defined as any physical or mental disability or incapacity \nwhich renders Executive incapable in any material respect of \nperforming the services required of him in accordance with her \nobligations under Section 2 for a period of 180 consecutive \ndays, or for 180 days in any 360 day period.\n\n<\/p>
     6.2     Death.  In the event of the death of Executive during the \nEmployment Period, this Agreement shall automatically \nterminate and the Company shall have no further obligations \nhereunder, except to pay and provide to Executive's \nbeneficiary or other legal representative, subject to \napplicable withholding, (i) all amounts of Base Salary and \nbonus accrued but unpaid, at the date of death, and (ii) all \nreasonable unreimbursed business-related expenses.  All \namounts payable to Executive pursuant to this Section 6.2 \nshall be payable within 30 days following the date of death.\n\n<\/p>
     6.3     Termination Without Cause.  In the event of the termination of \nExecutive's employment by the Company without Cause (as \ndefined below) or upon the Executive's voluntary termination \nof her employment for Good Reason (as defined below), (i) all \namounts of Base Salary and bonus accrued but unpaid on the \ndate of termination shall be paid by the Company within 30 \ndays following the date of termination, (ii) an amount equal \nto Executive's Base Salary on the date of termination for a \nperiod of twelve months shall be paid by the Company in twelve \nequal installments, and (iii) the Option shall immediately \nvest and become exercisable in full and shall remain \nexercisable for the periods specified in the Option.\n\n<\/p>
     6.4     Circumstances Under Which Termination Benefits Would Not Be \nPaid.  The Company shall only be obligated to pay the amounts \nof Base Salary and bonus accrued but unpaid on the date of \ntermination, and shall not be obligated to pay Executive the \ntermination benefits or continue the option vesting described \nin subparagraphs 6.1 through 6.3 above if the Employment \nPeriod is terminated for Cause or if Executive voluntarily \nterminates her employment other than for Good Reason (as \ndefined below).  For purposes of this Agreement, \"Cause\" \nshall be limited to:\n\n<\/p>
     (A)     Willful failure by Executive to substantially perform \nher duties hereunder, other than a failure resulting \nfrom her complete or partial incapacity due to physical \nor mental illness or impairment;\n\n<\/p>
     (B)     A material and willful violation of a federal or state \nlaw or regulation applicable to the business of the \ncompany or that adversely affects the image of the \nCompany;\n\n<\/p>
     (C)     Commission of a willful act by Executive which \nconstitutes gross misconduct and is injurious to the \nCompany; or\n\n<\/p>
     (D)     A willful breach of a material provision of this \nAgreement.\n\n<\/p>
     6.5     Constructive Termination.  Notwithstanding anything in \nSection 3 or in this Section 6 to the contrary, for purposes \nof this Agreement the Employment Period will be deemed to have \nbeen terminated and Executive will be deemed to have Good \nReason for voluntary termination of the Employment Period \n(\"Good Reason\"), if there should occur:\n\n<\/p>
     (A)     A material adverse change in Executive's position \ncausing it to be of materially less stature or \nresponsibility without Executive's written consent; \nprovided, that, such a materially adverse change shall \nnot be deemed to occur if Executive is the chief \nfinancial officer or a higher ranking officer of the \nCompany (or of a division of any acquiring company \nimmediately following a Change in Control (as defined \nbelow));\n\n<\/p>
     (B)     A material reduction, without Executive's written \nconsent, in her level of base compensation (including \nbase salary and fringe benefits) by more than ten \npercent (10%); or\n\n<\/p>
     (C)     A relocation of Executive's principal place of \nemployment outside the San Francisco Bay Area without \nExecutive's consent.\n\n<\/p>
     7.      Change in Control Benefits:  Should there occur a Change in Control \n(as defined below), then the following provisions shall become \napplicable:\n\n<\/p>
     (A)     During the period (if any) following a Change in Control that \nExecutive shall continue to remain employed, then the terms \nand provisions of this Agreement shall continue in full force \nand effect, and the Option shall continue to vest and become \nand remain exercisable in accordance with the terms of the \nOption; or\n\n<\/p>
     (B)     In the event of (i) a termination of the Executive's \nemployment by the Company or its successor other than for \nCause within six (6) months after a Change in Control or \n(ii) Executive voluntarily terminates her employment for Good \nReason within six (6) months after a Change in Control:\n\n<\/p>
     (i)     The Company shall pay to Executive an amount equal to \n(A) all amounts of bonus accrued to the date of \ntermination, (B) 100% of Executive's Base Salary for a \nperiod of one year and (C) Executive's target bonus for \na period of one year, in one lump sum amount on or \nbefore the fifth business day following the effective \ndate of Executive's termination; and\n\n<\/p>
     (ii)    The unvested portion of Option held by Executive on the \ndate of such Change in Control shall immediately vest \nand become exercisable in full and the Option shall \nremain exercisable for the periods specified in the \nOption.\n\n<\/p>
     For purposes of this Section 7, the term \"Change in Control\" shall \nmean:\n\n<\/p>
     (x)     The sale, lease, conveyance, liquidation or other \ndisposition of all or substantially all of the Company's \nassets as an entirety or substantially as an entirety to \nany person, entity or group of persons acting in concert \nother than in the ordinary course of business; or\n\n<\/p>
     (y)     Any transaction or series of related transactions (as a \nresult of a tender offer, merger, consolidation or \notherwise) that results in any Person (as defined in \nSection 13(h)(8)(E) under the Securities Exchange Act of \n1934) becoming the beneficial owner (as defined in Rule \n13d-3 under the Securities Exchange Act of 1934), \ndirectly or indirectly, of more than 50% of the \naggregate voting power of all classes of common equity \nsecurities of the Company, except if such Person is \n(A) a subsidiary of the Company, (B) an employee stock \nownership plan for employees of the Company, or (C) a \ncompany formed to hold the Company's common equity \nsecurities and whose shareholders constituted, at the \ntime such company became such holding company, \nsubstantially all the equity owners or shareholders of \nthe Company.\n\n<\/p>
     In the event that the severance and other benefits provided to \nExecutive pursuant to Section 6 of this Agreement (i) constitute \n\"parachute payments\" within the meaning of Section 280G of the \nInternal Revenue Code of 1986, as amended (the \"Code\") and \n(ii) but for this Section 7, such severance and benefits would be \nsubject to the excise tax imposed by Section 4999 of the Code, then \nExecutive's severance benefits under this Section 7 shall be payable \neither:\n\n<\/p>
     (a)     in full, or\n\n<\/p>
     (b)     as to such lesser amount which would result in no \nportion of such severance and other benefits being \nsubject to excise tax under Section 4999 of the Code, \nwhichever of the foregoing amounts, taking into account \nthe applicable federal, state and local income taxes and \nthe excise tax imposed by Section 4999, results in the \nreceipt by Executive on an after-tax basis, of the \ngreatest amount of severance benefits under this \nAgreement.  \n\n<\/p>
     Unless the Company and Executive otherwise agree in writing, any \ndetermination required under this Section 7 shall be made in writing \nby independent public accountants agreed to by the Company and \nExecutive (the \"Accountants\"), whose determination shall be \nconclusive and binding upon Executive and the Company for all \npurposes.  For purposes of making the calculations required by this \nSection 7, the Accountants may make reasonable assumptions and \napproximations concerning applicable taxes and may rely on \nreasonable, good faith interpretations concerning the application of \nSections 280G and 4999 of the Code.  The Company and Executive shall \nfurnish to the Accountants such information and documents as the \nAccountants may reasonably request in order to make a determination \nunder this Section 7.  The Company shall bear all costs the \nAccountants may reasonably incur in connection with any calculations \ncontemplated by this Section 7.\n\n<\/p>
     8.      Dispute Resolution:  The Company and Executive agree that any \ndispute regarding the interpretation or enforcement of this \nAgreement shall be decided by confidential, final and binding \narbitration conducted by Judicial Arbitration and Mediation Services \n(\"JAMS\") under the then-existing JAMS rules, rather than by \nlitigation in court, trial by jury, administrative proceeding, or in \nany other forum.\n\n<\/p>
     9.      Cooperation with the Company After Termination of the Employment \nPeriod:  Following termination of the Employment Period by \nExecutive, Executive shall fully cooperate with the Company in all \nmatters relating to the winding up of her pending work on behalf of \nthe Company and the orderly transfer of any such pending work to \nother employees of the Company as may be designated by the Company.\n\n<\/p>
     10.     Confidentiality; Return of Property; NonSolicitation:\n\n<\/p>
     (A)     The Executive acknowledges that during the Employment Period \nhe will receive confidential information from the Company and \nsubsidiaries of the Company (each a \"Relevant Entity\").  \nAccordingly, the Executive agrees that during the Employment \nPeriod (as it may be extended from time to time) and \nthereafter for a period of two years, the Executive and her \naffiliates shall not, except in the performance of her \nobligations to the Company hereunder or as may otherwise be \napproved in advance by the Company, directly or indirectly, \ndisclose or use (except for the direct benefit of the Company) \nany confidential information that he may learn or has learned \nby reason of her association with any Relevant Entity.  Upon \ntermination of this Agreement, the Executive shall promptly \nreturn to the Company any and all properties, records or \npapers of any Relevant Entity, that may have been in her \npossession at the time of termination, whether prepared by the \nExecutive or others, including, but not limited to, \nconfidential information and keys.  For purposes of this \nAgreement, \"confidential information\" includes all data, \nanalyses, reports, interpretations, forecasts, documents and \ninformation concerning a Relevant Entity and its affairs, \nincluding, without limitation with respect to clients, \nproducts, policies, procedures, methodologies, trade secrets \nand other intellectual property, systems, personnel, \nconfidential reports, technical information, financial \ninformation, business transactions, business plans, prospects \nor opportunities, (i) that the Company reasonably believes are \nconfidential or (ii) the disclosure of which could be \ninjurious to a Relevant Entity or beneficial to competitors of \na Relevant Entity, but shall exclude any information that \n(x) the Executive is required to disclose under any applicable \nlaws, regulations or directives of any government agency, \ntribunal or authority having jurisdiction in the matter or \nunder subpoena or other process of law, (y) is or becomes \npublicly available prior to the Executive's disclosure or use \nof the information in a manner violative of the second \nsentence of this Section 10(a), or (z) is rightfully received \nby Executive without restriction or disclosure from a third \nparty legally entitled to possess and to disclose such \ninformation without restriction (other than information that \nhe may learn or has learned by reason of her association with \nany Relevant Entity).  For purposes of this Agreement, \n\"affiliate\" means any entity that, directly or indirectly, \nis controlled by, or under common control with, the Executive. \n For purposes of this definition, the terms \"controlled\" and \n\"under common control with\" means the possession, direct or \nindirect, of the power to direct or cause the direction of the \nmanagement and policies of such person, whether through the \nownership of voting stock, by contract or otherwise.\n\n<\/p>
     (B)     For a period of one (1) year following the termination of \nExecutive's employment with the Company for any reason, he \nwill not, without the Company' express written consent, either \non her own behalf or on behalf of another, solicit employees \nof the Company or any subsidiary of the Company for the \npurpose of hiring them.  General employment advertising shall \nnot be deemed to be a solicitation.\n\n<\/p>
     11.     General:\n\n<\/p>
     11.1    Indemnification.  In the event Executive is made, or \nthreatened to be made, a party to any legal action or \nproceeding, whether civil or criminal, by reason of the fact \nthat Executive is or was a director or officer of the Company \nor serves or served any other corporation fifty percent (50%) \nor more owned or controlled by the Company in any capacity at \nthe Company' request, Executive shall be indemnified by the \nCompany, and the Company shall pay Executive's related \nexpenses when and as incurred, all to the fullest extent \npermitted by law.\n\n<\/p>
     11.2    Waiver.  Neither party shall, by mere lapse of time, without \ngiving notice or taking other action hereunder, be deemed to \nhave waived any breach by the other party of any of the \nprovisions of this Agreement.  Further, the waiver by either \nparty of a particular breach of this Agreement by the other \nshall neither be construed as, nor constitute a, continuing \nwaiver of such breach or of other breaches by the same or any \nother provision of this Agreement.\n\n<\/p>
     11.3    Severability.  If for any reason a court of competent \njurisdiction or arbitrator finds any provision of this \nAgreement to be unenforceable, the provision shall be deemed \namended as necessary to conform to applicable laws or \nregulations, or if it cannot be so amended without materially \naltering the intention of the parties, the remainder of the \nAgreement shall continue in full force and effect as if the \noffending provision were not contained herein.\n\n<\/p>
     11.4    Notices.  All notices and other communications required or \npermitted to be given under this Agreement shall be in writing \nand shall be considered effective upon personal service or \nupon transmission of a facsimile or the deposit with Federal \nExpress or in Express Mail and addressed to the Chairman of \nthe Board of the Company at its principal corporate address, \nand to Executive at her most recent address shown on the \nCompany's corporate records, or at any other address which he \nmay specify in any appropriate notice to the Company.\n\n<\/p>
     11.5    Counterparts.  This Agreement may be executed in any number of \ncounterparts, each of which shall be deemed an original and \nall of which taken together constitutes one and the same \ninstrument and in making proof hereof it shall not be \nnecessary to produce or account for more than one such \ncounterpart.\n\n<\/p>
     11.6    Entire Agreement.  The parties hereto acknowledge that each \nhas read this Agreement, understands it, and agrees to be \nbound by its terms.  The parties further agree that this \nAgreement shall constitute the complete and exclusive \nstatement of the agreement between the parties and supersedes \nall proposals (oral or written), understandings, \nrepresentations, conditions, covenants, and all other \ncommunications between the parties relating to the subject \nmatter hereof.  \n\n<\/p>
     11.7    Governing Law.  This Agreement shall be governed by the law of \nthe State of California.\n\n\n\n<\/p>
     11.8    Assignment and Successors.  The rights and obligations of the \nCompany under this Agreement shall inure to the benefit and \nshall be binding upon the successors and assigns of the \nCompany.\n\n<\/p>
     IN WITNESS WHEREOF, the parties have executed this Agreement as of \nthe date first above written.\n\n\n\n<\/p>
\n<\/p>\n  \n    \n    
<\/td>\n    <\/td><\/tr>\n  
 <\/td>\n    \n                                                MARKETWATCH.COM, INC.\n<\/td><\/tr><\/table>\n\n\n
\n<\/p>\n  \n    \n    
<\/td>\n    <\/td>\n    <\/td><\/tr>\n  
 <\/td>\n    By: <\/td>\n    \n                                                \/s\/ LARRY S. KRAMER\n<\/td><\/tr><\/table>\n\n\n\n  \n    \n    \n    \n    
<\/td>\n    <\/td><\/tr>\n  
 <\/td>\n    \n      
\n    <\/td><\/tr>\n  
 <\/td>\n    \n                                                      Larry S. Kramer\n<\/td><\/tr>\n  
 <\/td>\n    \n                                               Chief Executive Officer\n  <\/i><\/td><\/tr><\/table><\/centestrong><\/p>\n\n\n\n\n
\n<\/p><\/pre>\n\n\n\n
<\/td>\n<\/td>\n<\/tr>\n
 <\/td>\n\n                                                EXECUTIVE\n<\/td>\n<\/tr>\n<\/table>\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
 <\/td>\nBy: <\/td>\n\n                                               \/s\/ JOAN PLATT\n<\/td>\n<\/tr>\n<\/table>\n\n\n\n\n
<\/td>\n<\/td>\n<\/tr>\n
 <\/td>\n\n
\n    <\/td>\n<\/tr>\n
 <\/td>\n\nJoan Platt\n<\/td>\n<\/tr>\n<\/table>\n
 Exhibit A <\/p>\n
 TARGET BONUS AND SPECIFICATIONS <\/p>\n
Annual Target Bonus Rate:  fifty percent (50%) of the then-applicable base
\nsalary actually paid in a given year.  For example, if the base salary
\nactually paid in the second year of the term of this Agreement is
\n$250,000, the maximum target bonus would be $125,000 ($250,000 multiplied
\nby 50%) for that year.\n<\/p>\n
Specifications:  two components.\n<\/p>\n
     Discretionary Component:  Board may decide when, and if to grant
\nthis component.  This component shall be 25% of the then-applicable
\nbase salary actually paid in a given year.\n<\/p>\n
     Achievement of Financial Objectives Component:  Target Bonus, in the
\namount payable shown below, is payable upon the Company’s
\nachievement of the financial objectives set forth below:<\/p>\n
<\/centestrong><\/p>\n
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