EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), is entered into as of
December 1, 1999 (the "Commencement Date"), by MarketWatch.com, Inc.
(the "Company") and Joan Platt (the "Executive").
1. Term of Employment: The term of employment of Executive by the
Company hereunder shall commence on the Commencement Date and shall
continue thereafter on the same terms and conditions for a period of
three years unless earlier terminated pursuant to Sections 6 or 7
(such term being hereinafter referred to as the "Employment
Period"). The Employment Period shall be extended automatically
without further action by either party as of the third anniversary
of the Commencement Date for a period of one year, unless prior to
such date the Company or the Executive shall notify the other in
writing of its or her intention not to renew the Agreement, in which
case the Agreement shall terminate at the end of the original term.
If the Employment Period is extended, it shall thereafter be
referred to as the Employment Period.
2. Title; Duties: The Executive shall serve as Chief Financial Officer
of the Company reporting to the Chief Executive Officer of the
Company. Executive shall perform those duties and responsibilities
inherent in such position including such duties and responsibilities
as the Chief Executive Officer shall assign. The Executive agrees
to devote her full time and best efforts, attention and energies to
the business and interests of the Company. Executive shall serve
the Company faithfully and to the best of her ability in such
capacities, devoting her full business time, attention, knowledge,
energy and skills to such employment; provided, however, the Company
acknowledges that Executive may serve on the board of directors of
other companies with the prior approval of the Company's Board of
Directors (the "Board"). Executive shall travel as reasonably
required in connection with the performance of her duties hereunder.
3. Compensation: The Company shall pay and Executive shall accept as
full consideration for her services hereunder, compensation
consisting of the following:
3.1 Base Salary. $250,000 per year base salary during the first
year of the term of this Agreement; $260,000 per year base
salary during the second year of the term of this Agreement;
$275,000 per year base salary during the third year of the
term of this Agreement; and at least $275,000 per year base
salary (subject to increase by the Board) during successive
years of the term of this Agreement if the Employment Period
is extended past the original three-year term pursuant to
Section 1 hereof. "Base Salary" shall mean the base salary
provided for in this Section 3.1. Base Salary is payable in
installments in accordance with the Company's normal payroll
practices, less such deductions or withholdings as are
required by law.
3.2 Bonus. Annual target bonus at the rate and in accordance with
the specifications on Exhibit A attached hereto.
3.3 Equity Option. Executive received a grant of an option to
purchase 150,000 shares of Common Stock of the Company (the
"Option").
4. Benefits: Subject to all applicable eligibility requirements, and
legal limitations, Executive will be able to participate in any and
all 401(k), vacation, medical, dental, life and long-term disability
insurance and/or other benefit plans which from time to time may be
established for other employees of the Company.
5. Reimbursement of Expenses: The Company will reimburse Executive for
all reasonable travel, entertainment and other expenses incurred or
paid by the Executive in connection with, or related to, the
performance of her duties, responsibilities or services under this
Agreement subject to review by the Board or its compensation
committee, if applicable.
6. Benefit Upon Termination of Employment Period.
6.1 Disability. In the event of the permanent disability (as
hereinafter defined) of Executive during the Employment
Period, the Company shall have the right, upon written notice
to Executive, to terminate Executive's employment hereunder,
effective upon the 30th calendar day following the giving of
such notice (or such later day as shall be specified in such
notice). Upon the effectiveness of such termination, (i) the
Company shall have no further obligations hereunder, except to
pay and provide, subject to applicable withholding, (A) all
amounts of Base Salary accrued, but unpaid, at the effective
date of termination, (B) Executive's target bonus, and (C) all
reasonable unreimbursed business-related expenses,
(ii) Executive's Option shall immediately vest and become
exercisable to the extent of one additional year of vesting
and shall remain exercisable for the periods specified in the
Option and (iii) Executive shall have no further obligations
hereunder other than those provided for in Sections 9 and 10
hereof. All amounts payable to Executive pursuant to this
Section 6.1 shall be payable within 30 days following the
effectiveness of the termination of Executive's employment.
For purposes of this Agreement, "permanent disability" shall
be defined as any physical or mental disability or incapacity
which renders Executive incapable in any material respect of
performing the services required of him in accordance with her
obligations under Section 2 for a period of 180 consecutive
days, or for 180 days in any 360 day period.
6.2 Death. In the event of the death of Executive during the
Employment Period, this Agreement shall automatically
terminate and the Company shall have no further obligations
hereunder, except to pay and provide to Executive's
beneficiary or other legal representative, subject to
applicable withholding, (i) all amounts of Base Salary and
bonus accrued but unpaid, at the date of death, and (ii) all
reasonable unreimbursed business-related expenses. All
amounts payable to Executive pursuant to this Section 6.2
shall be payable within 30 days following the date of death.
6.3 Termination Without Cause. In the event of the termination of
Executive's employment by the Company without Cause (as
defined below) or upon the Executive's voluntary termination
of her employment for Good Reason (as defined below), (i) all
amounts of Base Salary and bonus accrued but unpaid on the
date of termination shall be paid by the Company within 30
days following the date of termination, (ii) an amount equal
to Executive's Base Salary on the date of termination for a
period of twelve months shall be paid by the Company in twelve
equal installments, and (iii) the Option shall immediately
vest and become exercisable in full and shall remain
exercisable for the periods specified in the Option.
6.4 Circumstances Under Which Termination Benefits Would Not Be
Paid. The Company shall only be obligated to pay the amounts
of Base Salary and bonus accrued but unpaid on the date of
termination, and shall not be obligated to pay Executive the
termination benefits or continue the option vesting described
in subparagraphs 6.1 through 6.3 above if the Employment
Period is terminated for Cause or if Executive voluntarily
terminates her employment other than for Good Reason (as
defined below). For purposes of this Agreement, "Cause"
shall be limited to:
(A) Willful failure by Executive to substantially perform
her duties hereunder, other than a failure resulting
from her complete or partial incapacity due to physical
or mental illness or impairment;
(B) A material and willful violation of a federal or state
law or regulation applicable to the business of the
company or that adversely affects the image of the
Company;
(C) Commission of a willful act by Executive which
constitutes gross misconduct and is injurious to the
Company; or
(D) A willful breach of a material provision of this
Agreement.
6.5 Constructive Termination. Notwithstanding anything in
Section 3 or in this Section 6 to the contrary, for purposes
of this Agreement the Employment Period will be deemed to have
been terminated and Executive will be deemed to have Good
Reason for voluntary termination of the Employment Period
("Good Reason"), if there should occur:
(A) A material adverse change in Executive's position
causing it to be of materially less stature or
responsibility without Executive's written consent;
provided, that, such a materially adverse change shall
not be deemed to occur if Executive is the chief
financial officer or a higher ranking officer of the
Company (or of a division of any acquiring company
immediately following a Change in Control (as defined
below));
(B) A material reduction, without Executive's written
consent, in her level of base compensation (including
base salary and fringe benefits) by more than ten
percent (10%); or
(C) A relocation of Executive's principal place of
employment outside the San Francisco Bay Area without
Executive's consent.
7. Change in Control Benefits: Should there occur a Change in Control
(as defined below), then the following provisions shall become
applicable:
(A) During the period (if any) following a Change in Control that
Executive shall continue to remain employed, then the terms
and provisions of this Agreement shall continue in full force
and effect, and the Option shall continue to vest and become
and remain exercisable in accordance with the terms of the
Option; or
(B) In the event of (i) a termination of the Executive's
employment by the Company or its successor other than for
Cause within six (6) months after a Change in Control or
(ii) Executive voluntarily terminates her employment for Good
Reason within six (6) months after a Change in Control:
(i) The Company shall pay to Executive an amount equal to
(A) all amounts of bonus accrued to the date of
termination, (B) 100% of Executive's Base Salary for a
period of one year and (C) Executive's target bonus for
a period of one year, in one lump sum amount on or
before the fifth business day following the effective
date of Executive's termination; and
(ii) The unvested portion of Option held by Executive on the
date of such Change in Control shall immediately vest
and become exercisable in full and the Option shall
remain exercisable for the periods specified in the
Option.
For purposes of this Section 7, the term "Change in Control" shall
mean:
(x) The sale, lease, conveyance, liquidation or other
disposition of all or substantially all of the Company's
assets as an entirety or substantially as an entirety to
any person, entity or group of persons acting in concert
other than in the ordinary course of business; or
(y) Any transaction or series of related transactions (as a
result of a tender offer, merger, consolidation or
otherwise) that results in any Person (as defined in
Section 13(h)(8)(E) under the Securities Exchange Act of
1934) becoming the beneficial owner (as defined in Rule
13d-3 under the Securities Exchange Act of 1934),
directly or indirectly, of more than 50% of the
aggregate voting power of all classes of common equity
securities of the Company, except if such Person is
(A) a subsidiary of the Company, (B) an employee stock
ownership plan for employees of the Company, or (C) a
company formed to hold the Company's common equity
securities and whose shareholders constituted, at the
time such company became such holding company,
substantially all the equity owners or shareholders of
the Company.
In the event that the severance and other benefits provided to
Executive pursuant to Section 6 of this Agreement (i) constitute
"parachute payments" within the meaning of Section 280G of the
Internal Revenue Code of 1986, as amended (the "Code") and
(ii) but for this Section 7, such severance and benefits would be
subject to the excise tax imposed by Section 4999 of the Code, then
Executive's severance benefits under this Section 7 shall be payable
either:
(a) in full, or
(b) as to such lesser amount which would result in no
portion of such severance and other benefits being
subject to excise tax under Section 4999 of the Code,
whichever of the foregoing amounts, taking into account
the applicable federal, state and local income taxes and
the excise tax imposed by Section 4999, results in the
receipt by Executive on an after-tax basis, of the
greatest amount of severance benefits under this
Agreement.
Unless the Company and Executive otherwise agree in writing, any
determination required under this Section 7 shall be made in writing
by independent public accountants agreed to by the Company and
Executive (the "Accountants"), whose determination shall be
conclusive and binding upon Executive and the Company for all
purposes. For purposes of making the calculations required by this
Section 7, the Accountants may make reasonable assumptions and
approximations concerning applicable taxes and may rely on
reasonable, good faith interpretations concerning the application of
Sections 280G and 4999 of the Code. The Company and Executive shall
furnish to the Accountants such information and documents as the
Accountants may reasonably request in order to make a determination
under this Section 7. The Company shall bear all costs the
Accountants may reasonably incur in connection with any calculations
contemplated by this Section 7.
8. Dispute Resolution: The Company and Executive agree that any
dispute regarding the interpretation or enforcement of this
Agreement shall be decided by confidential, final and binding
arbitration conducted by Judicial Arbitration and Mediation Services
("JAMS") under the then-existing JAMS rules, rather than by
litigation in court, trial by jury, administrative proceeding, or in
any other forum.
9. Cooperation with the Company After Termination of the Employment
Period: Following termination of the Employment Period by
Executive, Executive shall fully cooperate with the Company in all
matters relating to the winding up of her pending work on behalf of
the Company and the orderly transfer of any such pending work to
other employees of the Company as may be designated by the Company.
10. Confidentiality; Return of Property; NonSolicitation:
(A) The Executive acknowledges that during the Employment Period
he will receive confidential information from the Company and
subsidiaries of the Company (each a "Relevant Entity").
Accordingly, the Executive agrees that during the Employment
Period (as it may be extended from time to time) and
thereafter for a period of two years, the Executive and her
affiliates shall not, except in the performance of her
obligations to the Company hereunder or as may otherwise be
approved in advance by the Company, directly or indirectly,
disclose or use (except for the direct benefit of the Company)
any confidential information that he may learn or has learned
by reason of her association with any Relevant Entity. Upon
termination of this Agreement, the Executive shall promptly
return to the Company any and all properties, records or
papers of any Relevant Entity, that may have been in her
possession at the time of termination, whether prepared by the
Executive or others, including, but not limited to,
confidential information and keys. For purposes of this
Agreement, "confidential information" includes all data,
analyses, reports, interpretations, forecasts, documents and
information concerning a Relevant Entity and its affairs,
including, without limitation with respect to clients,
products, policies, procedures, methodologies, trade secrets
and other intellectual property, systems, personnel,
confidential reports, technical information, financial
information, business transactions, business plans, prospects
or opportunities, (i) that the Company reasonably believes are
confidential or (ii) the disclosure of which could be
injurious to a Relevant Entity or beneficial to competitors of
a Relevant Entity, but shall exclude any information that
(x) the Executive is required to disclose under any applicable
laws, regulations or directives of any government agency,
tribunal or authority having jurisdiction in the matter or
under subpoena or other process of law, (y) is or becomes
publicly available prior to the Executive's disclosure or use
of the information in a manner violative of the second
sentence of this Section 10(a), or (z) is rightfully received
by Executive without restriction or disclosure from a third
party legally entitled to possess and to disclose such
information without restriction (other than information that
he may learn or has learned by reason of her association with
any Relevant Entity). For purposes of this Agreement,
"affiliate" means any entity that, directly or indirectly,
is controlled by, or under common control with, the Executive.
For purposes of this definition, the terms "controlled" and
"under common control with" means the possession, direct or
indirect, of the power to direct or cause the direction of the
management and policies of such person, whether through the
ownership of voting stock, by contract or otherwise.
(B) For a period of one (1) year following the termination of
Executive's employment with the Company for any reason, he
will not, without the Company' express written consent, either
on her own behalf or on behalf of another, solicit employees
of the Company or any subsidiary of the Company for the
purpose of hiring them. General employment advertising shall
not be deemed to be a solicitation.
11. General:
11.1 Indemnification. In the event Executive is made, or
threatened to be made, a party to any legal action or
proceeding, whether civil or criminal, by reason of the fact
that Executive is or was a director or officer of the Company
or serves or served any other corporation fifty percent (50%)
or more owned or controlled by the Company in any capacity at
the Company' request, Executive shall be indemnified by the
Company, and the Company shall pay Executive's related
expenses when and as incurred, all to the fullest extent
permitted by law.
11.2 Waiver. Neither party shall, by mere lapse of time, without
giving notice or taking other action hereunder, be deemed to
have waived any breach by the other party of any of the
provisions of this Agreement. Further, the waiver by either
party of a particular breach of this Agreement by the other
shall neither be construed as, nor constitute a, continuing
waiver of such breach or of other breaches by the same or any
other provision of this Agreement.
11.3 Severability. If for any reason a court of competent
jurisdiction or arbitrator finds any provision of this
Agreement to be unenforceable, the provision shall be deemed
amended as necessary to conform to applicable laws or
regulations, or if it cannot be so amended without materially
altering the intention of the parties, the remainder of the
Agreement shall continue in full force and effect as if the
offending provision were not contained herein.
11.4 Notices. All notices and other communications required or
permitted to be given under this Agreement shall be in writing
and shall be considered effective upon personal service or
upon transmission of a facsimile or the deposit with Federal
Express or in Express Mail and addressed to the Chairman of
the Board of the Company at its principal corporate address,
and to Executive at her most recent address shown on the
Company's corporate records, or at any other address which he
may specify in any appropriate notice to the Company.
11.5 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and
all of which taken together constitutes one and the same
instrument and in making proof hereof it shall not be
necessary to produce or account for more than one such
counterpart.
11.6 Entire Agreement. The parties hereto acknowledge that each
has read this Agreement, understands it, and agrees to be
bound by its terms. The parties further agree that this
Agreement shall constitute the complete and exclusive
statement of the agreement between the parties and supersedes
all proposals (oral or written), understandings,
representations, conditions, covenants, and all other
communications between the parties relating to the subject
matter hereof.
11.7 Governing Law. This Agreement shall be governed by the law of
the State of California.
11.8 Assignment and Successors. The rights and obligations of the
Company under this Agreement shall inure to the benefit and
shall be binding upon the successors and assigns of the
Company.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
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Larry S. Kramer
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Chief Executive Officer
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