{"id":39556,"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-screaming-media-net-inc-and-kevin-clark.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agreement-screaming-media-net-inc-and-kevin-clark","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agreement-screaming-media-net-inc-and-kevin-clark.html","title":{"rendered":"Employment Agreement &#8211; Screaming Media.Net Inc. and Kevin Clark"},"content":{"rendered":"<pre>\n                              EMPLOYMENT AGREEMENT\n\n      AGREEMENT dated as of November 8, 1999 between Screaming Media.Net, Inc.,\na Delaware corporation (the \"Company\"), and Kevin Clark (the \"Executive\").\n\n      WHEREAS the parties desire to enter into an employment agreement, on the\nterms and conditions hereinafter set forth, providing for the employment of the\nExecutive by the Company for the term herein specified,\n\n      NOW, THEREFORE, in consideration of the mutual agreements hereinafter set\nforth, the parties hereto agree as follows:\n\n      SECTION 1. EMPLOYMENT AND TERM.\n\n      The Company hereby employs the Executive, and the Executive hereby agrees\nto serve, as an executive employee of the Company with the duties set forth in\nSection 2, for a term (hereinafter called the \"Term of Employment\") beginning\nNovember 8, 1999, and ending on November 8, 2002, unless sooner terminated as\nprovided herein.\n\n\n      SECTION 2. DUTIES.\n\n      (a) The Executive agrees that during the Term of Employment, he will hold\nthe office of Chief Executive Officer of the Company reporting to the Company's\nBoard of Directors. The Executive agrees that he will perform faithfully and to\nthe best of his ability such duties and assignments relating to the business of\nthe Company, as the Board of Directors of the Company shall direct and\nconsistent with the office of Chief Executive Officer, except that the Executive\nshall not be required to perform any duty or assignment inconsistent with his\nexperience and qualifications or not customarily performed by a senior corporate\nofficer. The Company represents to the Executive that the Board of Directors\nhas authorized the making of this agreement and has approved the appointment of\nExecutive as Chief Executive Officer of the Company.\n\n\n      (b) If the Board of Directors of the Company so requests, the Executive\nshall, in addition to his duties as Chief Executive Officer, serve as an officer\nof one or more subsidiaries of the Company (if, but only if, the duties of such\nposition are not inconsistent with the Executive's experience and qualifications\nand are duties customarily performed by a senior corporate officer). Part or\nall of the compensation to which the Executive is entitled hereunder may be paid\nby such subsidiary or subsidiaries. However, such\n\nemployment or payment of the Executive by a subsidiary or subsidiaries shall be\nguaranteed by the Company and shall not relieve the Company from any of its\nobligations under this agreement.\n\n     (c)  During the Term of Employment, the Executive shall, except during\ncustomary vacation periods and periods of illness, devote all of his business\ntime and attention to the performance of his duties hereunder and to the\nbusiness and affairs of the Company and to promoting the best interests of the\nCompany and he shall not, either during or outside of normal business hours,\nengage in any activity inimical to such best interests. Notwithstanding the\nforegoing, Executive may serve as a Director on Boards of organizations which\ndo not compete with the Company and may engage in charitable or civic pursuits\nprovided that such service or pursuits do not interfere with Executive's\nobligations under the Agreement.\n\n     SECTION 3. COMPENSATION DURING TERM OF EMPLOYMENT.\n\n     (a)  BASE SALARY.  During the Term of Employment, the Company shall pay to\nthe Executive compensation (in addition to the compensation provided for\nelsewhere in this agreement) in equal monthly installments at the rate of\n$300,000 per Contract Year (such amount being herein called \"Base Salary\").\nExecutive's base salary shall be review at least annually during the term of the\nAgreement with regard to potential increases as authorized by the Board of\nDirectors. The Base Salary shall be paid in such periodic installments as the\nCompany may determine, but not less often than monthly. In addition, Executive\nshall be eligible to participate in bonus plans applicable to senior executives\nof the Company to the extent such bonus plans are formed during the term of\nthis Agreement.\n\n          (b) STOCK OPTIONS.   Effective as of the first day of the Term of\nEmployment, the Company shall grant to the Executive a seven-year non-qualified\nstock option (the \"Option\") to purchase 450,000 shares of Common Stock of the\nCompany, par value $.01 per share, at an exercise price of $6.50 per share. The\nform of the Option shall be in the form attached as Exhibit A. In the event it\nis determined that any payment or distribution made, or benefit provided\n(included, without limitation, the acceleration of any payment, distribution or\nbenefit and the acceleration of vesting of any stock option, restricted stock or\nother award), by the Company to or for your benefit (whether paid or payable or\ndistributed or distributable pursuant to the terms of this letter or otherwise,\nbut determined without regard to any additional payments required under this\nprovision (a \"payment\") would be subject to the excise tax imposed by Section\n4999 of the Code (or any similar excise tax) or any interest or penalties are\nincurred by Executive with respect to such excise tax (such excise tax,\ntogether with any such interest and penalties, collectively referred to as the\n\"Excise Tax\"), then Executive will be entitled to receive an additional payment\n(a \"Gross-Up Payment\") in an amount such that after payment by Executive of all\ntaxes (including any Excise Tax, income tax or payroll tax) imposed upon the\nGross-Up Payment, and any interest or penalties imposed with respect to such\ntaxes caused by the Company's negligence, Executive will retain from the\nGross-Up Payment an amount equal to the Excise Tax imposed upon the Payments.\n\n\n          (c)  FRINGE BENEFITS AND PERQUISITES. During the Term of Employment,\nthe Executive shall enjoy the customary perquisites of office, including but not\nlimited to office space and furnishings, secretarial services, expense\nreimbursements and any similar emoluments customarily afforded to senior\nexecutive officers of the Company as authorized or approved by the Board of\nDirectors. The Company shall provide Executive with a full-time Executive\nAssistant and will reimburse him for car service to his residence in the event\nthat he works beyond 6 p.m. The Executive shall also be entitled to receive or\nparticipate in the highest level of all \"fringe benefits\" and employee benefit\nplans, if any, now or hereafter provided or made available by the Company to\nits executives or management personnel generally, such as, but not limited to,\ngroup hospitalization, medical, life and disability insurance, and pension,\nretirement, profit-sharing and medical reimbursement plans, all as the Board of\nDirectors shall determine. In addition, the Company will reimburse Executive\nfor annual membership in the YPO.\n\n          (d) VACATIONS.  The Executive shall be entitled each year to a paid\nvacation of four weeks. The Company shall not pay the Executive any additional\ncompensation for any vacation time not used by the Executive.\n\n          (e)  REIMBURSEMENT.  The Company shall reimburse the Executive for up\nto $10,000 for actual, out-of-pocket expenses incurred by the\n\nExecutive in connection with the closing of the Executive's office in Rowayton,\nConnecticut.\n\n                     SECTION 4. TERMINATION OF EMPLOYMENT.\n\n(a)     DEATH OR TOTAL DISABILITY. The employment of the Executive will\nterminate upon his death or if, by reason of partial or total disability,\nExecutive is incapable of performing his principal duties hereunder for a period\nof 90 consecutive working days or for more than 120 working days in any 12 month\nperiod (\"Disability\"). If, during the Term of Employment, the employment of the\nExecutive is terminated due to death or Disability, the Executive or his estate\nshall receive, within 30 days of such termination, Base Salary provided for in\nSection 3 as then in effect, accrued through the date of termination of\nExecutive's employment (\"Date of Termination\"). Upon the Date of Termination all\nunvested Stock Options and all other benefits under this Agreement shall lapse,\nexpire and be forfeited (other than the proceeds of any insurance or disability\npolicy or medical coverage provided by the Company which are or become payable\nby reason of the Executive's death or Disability, as the case may be).\n\n\n(b)     FOR CAUSE OR FOR LACK OF GOOD REASON. The employment of the Executive\nmay be terminated by the Company at any time for Cause, as defined below. If,\nduring the Term of Employment, the employment of the Executive is terminated by\nthe Company for Cause or by the Executive without Good Reason, as defined\nbelow, the Executive shall receive, within 30 days of such termination, Base\nSalary provided for in Section 3 as then in effect, accrued through the Date of\nTermination. Upon the Date of Termination (i) all unvested Stock Options and\nall other benefits under this Agreement shall lapse, expire and be forfeited.\n\n(c)     WITHOUT CAUSE OR WITH GOOD REASON. (i) The employment of the Executive\nmay also be terminated by the Company at any time without Cause or by the\nExecutive at any time with Good Reason. If, during the Term of Employment, the\nemployment of the Executive is terminated by the Company without Cause, or by\nthe Executive with Good Reason, the Executive shall continue to receive Base\nSalary provided for in Section 3 as then in effect and medical and other\ninsurance coverage in effect on the Date of Termination for the six months\nfollowing termination. Upon the Termination of Executive under this Section,\nall options scheduled to vest within one year of the Date of Termination shall\naccelerate and immediately vest and all vested options shall become exercisable\nas provided in Executive's Option Agreement. Subject to the severance\narrangements described herein, all other benefits under this Agreement shall\nlapse, expire and be forfeited.\n\n(d)      DEFINITION OF \"CAUSE\" AND \"GOOD REASON\". \"Cause\" means (i) willful\nfailure of the Executive to perform his duties with the Company which have been\nduly assigned to the Executive and which duties are commensurate with the\nposition for which Executive is then employed, (ii) the engaging by the\nExecutive in willful conduct which is materially injurious to the Company,\n(iii) the conviction of the Executive of any crime or offense constituting a\nfelony; or (iv) a failure by the Executive to comply with any material\nprovision of this Agreement, which failure is not cured (if capable of cure)\nwithin 30 days after receipt of written notice of such non-compliance by the\nExecutive. Termination of the Executive for \"cause\" shall mean termination by\naction of at least a majority of the Company's Board of Directors, at a meeting\nduly called and held upon at least 30 days written notice to the Executive\nspecifying the particulars of the action or inaction alleged to constitute\n\"cause\" and at which meeting the Executive and his counsel were entitled to be\npresent and given adequate opportunity to be heard. Action or inaction by the\nExecutive shall not be considered \"willful\" unless done or omitted by him\nintentionally or not in good faith and without reasonable belief that his\naction or inaction was in the best interest of the Company, and shall not\ninclude failure to act by reason of total or partial incapacity due to physical\nor mental illness.\n\n         \"Good Reason\" means (i) a material adverse alteration in the nature or\nstatus of the Executive's position, duties or responsibilities from those in\neffect as of the inception of the Term of Employment; (ii) a reduction in or\nfailure to pay or provide any of the compensation set forth in this Agreement\nwhich is not cured within 30 days after receipt by the Company of written\nnotice thereof; or (iii) a change in the principal place of the Executive's\nemployment to a location more than 75 miles from the place of the Executive's\nprincipal residence as of the date of this Agreement, excluding required travel\non the Company's business.\n\n     SECTION 5.  COVENANT NOT TO COMPETE.\n\n          In the case of termination of the Executive's employment pursuant to\nSection 4(b) above, for a period of six months after the Date of Termination,\nthe Executive shall not, in The City of New York, render services to any\ncorporation, individual or other entity engaged in any activity, or himself\nengage directly or indirectly in any activity, which is competitive to any\nmaterial extent with the then business of the Company or any of its\nsubsidiaries. In the case of any termination of Executive's employment under\nthis Agreement, for a period of six months after the end of the Term of\nEmployment, the Executive shall not solicit for the purpose of diverting\nbusiness from the Company, for himself or a business competitive with that of\nthe Company or any of its then subsidiaries, business from any person, firm or\ncorporation which shall, at the time that the Term of Employment ends, be an\nexisting customer of the Company or any such subsidiary or solicit, raid or\nentice or induce any employee of the Company or any of its subsidiaries to\nbecome employed by any other business enterprise. It is understood that general\nand trade advertising is not to be deemed a form of \"solicitation\" for purposes\nof this agreement. As used herein, \"existing customer\" means any person, firm or\ncorporation which is on the list or lists maintained by the Company or any\nsubsidiary of its customers, as well as any person, firm or corporation which\nhas made a purchase from the Company or a subsidiary within the preceding year.\n\n     SECTION 6.  COMPANY'S RIGHT TO INJUNCTIVE RELIEF.\n\n          The Executive acknowledges that his services to the Company consisting\nof senior managerial executive, with an intimate knowledge of and day to day\ndealing with the Company's customers, distributors, suppliers and the key\nemployees of the Company and its subsidiaries, as well as an intimate knowledge\nof the plans and strategies of the Company and its subsidiaries for present and\nfuture businesses and extensions thereof are of a unique character, which gives\nthem a peculiar value to the Company, the loss of which cannot be reasonably or\nadequately compensated in damages in an action at law, and that therefore, in\naddition to any other remedy which the Company may have at law or in equity, the\nCompany and each relevant subsidiary shall be entitled to injunctive relief for\na breach of this agreement by the Executive.\n\n\n\n          SECTION 7. TRADE SECRETS AND CONFIDENTIAL INFORMATION.\n\n          The Executive shall not, either directly or indirectly, except as\nrequired in the course of his employment by the Company disclose or use at any\ntime, whether during or subsequent to the Term of Employment, any information\nof a proprietary nature owned by the Company or any of its subsidiaries\nincluding, but not limited to, (i) lists of customers, clients and contacts or\nany of them, (ii) contracts with customers, programmers, developers, suppliers,\ndistributors and other dealers, marketing plans, financial condition and\nresults of operation, and (iii) records, data, formulae, documents,\nspecifications, inventions, processes, methods and intangible rights which are\nacquired by him in the performance of his duties for the Company or any\nsubsidiary thereof and which are of a confidential information or trade secret\nnature. All inventions, processes, methods and intangible rights, lists of\ncustomers, clients and contacts or any of them, contracts with customers,\nsuppliers and distributors, records, files, drawings, documents, equipment and\nthe like, relating to the business of the Company or a subsidiary, which the\nExecutive shall invent, develop, conceive, produce, prepare, use, construct or\nobserve, shall be and remain the sole property of the Company or the relevant\nsubsidiary. Upon the termination of his employment (or earlier upon the request\nof the Company), the Executive shall return to the possession of the Company\nall materials (and all copies thereof) involving any and all confidential\ninformation or trade secrets of, and shall not take any material or copies\nthereof from the possession of, the Company or any subsidiary.\n\n          SECTION 8. MERGERS AND CONSOLIDATIONS; ASSIGNABILITY.\n\n          In the event that the Company, or any entity resulting from any\nmerger or consolidation referred to in this Section 8 or which shall be a\npurchaser or transferee so referred to, shall at any time be merged or\nconsolidated into or with any other entity or entities, or in the event that\nsubstantially all of the assets of the Company or any such entity shall be sold\nor otherwise transferred to another entity, the provisions of this agreement\nshall be binding upon and shall inure to the benefit of the continuing entity\nin or the entity resulting from such merger or consolidation or the entity to\nwhich such assets shall be sold or transferred. The Company will not enter into\nany such transaction unless, as a condition thereof, all of the obligations of\nthe Company under this agreement are duly and validly assumed by the\ncontinuing or resulting entity or the entity to which such assets shall be sold\nor transferred. Except as provided in this Section 8, this agreement shall not\nbe assignable by the Company or by any entity referred to in this Section 8.\nThis agreement shall not be assignable by the Executive, but in the event of\nhis death it shall be binding upon and inure to the benefit of his legal\nrepresentatives to the extent required to effectuate the terms hereof.\n\n924088-1\nCATEMPW636152 V1 - CLARK - EMPLOYMENT AGREEMENT.DOC\n\n     SECTION 9. MISCELLANEOUS.\n\n     (a) The captions in this agreement are not part of the provisions hereof,\nare merely for the purpose of reference and shall have no force or effect for\nany purpose whatsoever, including the construction of the provisions of this\nagreement, and if any caption is inconsistent with any provisions of this\nagreement, such provisions shall govern.\n\n     (b) This agreement is made in, and shall be governed by and construed in\naccordance with the internal laws of, the State of New York.\n\n     (c) This agreement contains a complete statement of all of the\narrangements between the parties with respect to the subject matter hereof; and\nthere are no representations, agreements, arrangements or understandings, oral\nor written, between the parties relating to the subject matter of this\nagreement which are not fully expressed in this agreement. This agreement may\nnot be waived, changed, modified or discharged orally, but only by an agreement\nin writing signed by the party against whom any waiver, change, modification or\ndischarge is sought.\n\n     (d) All notices given hereunder shall be in writing and shall be sent by\nregistered or certified mail, return receipt requested, and, if intended for\nthe Company, shall be addressed to it at its principal office at 601 West 26th\nStreet, New York, New York 10021 for the attention of William P. Kelly, Esq.,\nGeneral Counsel of the Company with a copy to Alan S. Ellman, President of the\nCompany, or at such other address and for the attention of such other person of\nwhich the Company shall have given notice to the Executive in the manner herein\nprovided, and, if intended for the Executive, shall be addressed to him at his\nthen current residence address as shown by the employment records of the\nCompany, or at such other address or to such designee of which the Executive\nshall have given notice to the Company in the manner herein provided. Each such\nnotice shall be deemed to be given on the date received at the address of the\naddressee.\n\n     (e) The Company and the Executive will treat this agreement as\nconfidential, and neither of them will disclose the contents of this agreement\nto any person, except as may be required by law and except as the Company may\nneed to do so in its dealings with banks or other lenders or otherwise in the\nnormal course of business.\n\n     (f) The Executive irrevocably (i) consents to the jurisdiction and venue\nof the Southern District Federal court located in New York State (or, if\njurisdiction is not available in such forum, to the jurisdiction of the courts\nof the State of New York located in New York City) in connection with any\n\naction, suit or other proceeding arising out of or relating to this agreement\nor any act taken or omitted hereunder, (ii) waives and agrees not to assert in\nany such action, suit or other proceeding that he is not personally subject to\nthe jurisdiction of such courts, that the action, suit or other proceeding is\nbrought in an inconvenient forum or that the venue of the action, suit or other\nproceeding is improper, (iii) waives personal service of any summons, complaint\nor other process and (iv) agrees that the service thereof may be made by\ncertified or registered mail directed to the Executive at his address for\npurposes of notices hereunder. Should the Executive fail to appear or answer\nwithin the time prescribed by law, he shall be deemed in default and judgment\nmay be entered by the Company against him for the amount or other relief as\ndemanded in any summons, complaint or other process so served. Nothing\ncontained herein shall affect the rights of the Company to bring such an\naction, suit or other proceeding in any other jurisdiction.\n\n     IN WITNESS WHEREOF, the parties hereto have executed this agreement as of\nthe day and year first above written.\n\n                                   SCREAMING MEDIA.NET, INC.\n\n               \n                                   By: \/s\/ Jay Chiat\n                                       Name: Jay Chiat\n                                       Title: Chairman\n\n                                   Kevin Clark\n                                   \/s\/ Kevin Clark\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8789],"corporate_contracts_industries":[],"corporate_contracts_types":[9539,9544],"class_list":["post-39556","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-screaming-mediacom-inc","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/39556","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=39556"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39556"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39556"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39556"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}