Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT,
effective as of June 7, 2007 (the “Effective Date”), is
made by and between Monster Worldwide, Inc., a Delaware corporation
(the “Company”), and Timothy T. Yates (the
“Executive”).
RECITALS:
A.
The Company desires to employ the Executive as its Executive Vice
President — Chief Financial Officer; and
B.
The Executive desires to commit himself to serve the Company on the
terms herein provided.
NOW, THEREFORE, in
consideration of the foregoing and of the respective covenants and
agreements set forth below, the parties hereto agree as
follows:
1.
Certain Definitions
.
(a)
“Affiliate” shall mean, with respect to any Person, any
other Person directly or indirectly, through one or more
intermediaries, controlling, controlled by, or under common control
with, such Person. For purposes of this Section 1(a),
“control” shall have the meaning given such term under
Rule 405 of the Securities Act of 1933, as amended.
(b)
“Annual Base Salary” shall have the meaning set forth
in Section 5(a).
(c)
“Board” shall mean the Board of Directors of the
Company.
(d)
“Bonus” shall have the meaning set forth in Section
5(b).
(e)
The Company shall have “Cause” to terminate the
Executive’s employment upon:
(i)
the Executive’s willful misconduct or gross negligence in the
performance of his duties hereunder, or his willful failure to
attempt in good faith to carry out, or comply with, in any material
respect any lawful and reasonable written directive of the Board or
the Chief Executive Officer or the Executive’s willful
material violation of the Company’s statement of corporate
policy and code of conduct at any time after such statement and
code have been adopted by the Board and have been set forth in
writing and delivered to the Executive;
(ii)
the Executive’s unlawful use (including being under the
influence) of illegal drugs on the Company’s premises or
while performing the Executive’s duties and
responsibilities;
(iii)
the Executive’s failure or refusal to reasonably cooperate
with any governmental/regulatory authority having jurisdiction over
the Executive and the Company;
(iv)
the Executive’s material breach of this Agreement;
(v)
the Executive’s intentional commission at any time in the
performance of his duties hereunder of any act of fraud,
embezzlement, misappropriation of Company property, moral turpitude
or breach of fiduciary duty against the Company that has a material
adverse effect on the Company; or
(vi)
the Executive’s commission of a felony, other than as a
result of vicarious liability or as a result of a traffic
violation.
No termination of
the Executive’s employment hereunder by the Company for Cause
shall be effective as a termination for Cause unless the provisions
of this paragraph shall first have been complied with. The
Executive shall be given written notice by the Board, with such
notice stating in reasonable detail the particular circumstances
that constitute the grounds on which the proposed termination for
Cause is based. The Executive shall have thirty (30) days
after receipt of such notice to fully cure such alleged
violation. If he fails to cure such alleged violation within
such thirty (30)-day period, the Executive shall then be entitled
to a hearing in person (together with counsel) before the full
Board. If after such hearing, the Board gives written notice
to the Executive confirming that a majority of the members of the
full Board voted after the hearing to terminate him for Cause, the
Executive’s employment shall thereupon be terminated for
Cause. For purposes hereof, no act or omission shall be
deemed to be “willful” if such act or omission was
taken (or omitted) in the good faith belief that such is in the
best interests of, or not opposed to the best interests of, the
Company or if such act or omission resulted from the
Executive’s physical or mental incapacity.
(f)
“Change in Control” shall occur when:
(i)
A Person (which term, when used in this Section 1(f), shall not
include the Company, any underwriter temporarily holding securities
pursuant to an offering of such securities, any trustee or other
fiduciary holding securities under an employee benefit plan of the
Company, any Company owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions
as their ownership of Voting Stock of the Company or Andrew
McKelvey or his Affiliates; provided, however, if Andrew McKelvey
or his Affiliates becomes part of a “group” then such
group may be included in the definition of Person in this
subparagraph) is or becomes, without the prior consent of a
majority of the Continuing Directors, the beneficial owner (as
defined in Rule 13d-3 promulgated under the Securities Exchange Act
of 1934, as amended), directly or indirectly, of Voting Stock
representing twenty-five percent (25%) (or, even with such prior
consent, forty percent (40%)) or more of the combined voting power
for election of directors of the Company’s then outstanding
securities; or
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(ii)
The Company consummates a reorganization, merger or consolidation
of the Company (which prior to the date of such consummation has
been approved by the Company’s stockholders) or the Company
sells, or otherwise disposes of, all or substantially all of the
Company’s property and assets (other than a reorganization,
merger, consolidation or sale which would result in all or
substantially all of the beneficial owners of the Voting Stock of
the Company outstanding immediately prior thereto continuing to
beneficially own, directly or indirectly (either by remaining
outstanding or by being converted into voting securities of the
resulting entity), more than fifty percent (50%) of the combined
voting power of the voting securities of the Company or such entity
resulting from the transaction (including, without limitation, an
entity which as a result of such transaction owns the Company or
all substantially all of the Company’s property or assets,
directly or indirectly) outstanding immediately after such
transaction in substantially the same proportions relative to each
other as their ownership immediately prior to such transaction), or
the Company’s stockholders approve a liquidation or
dissolution of the Company; or
(iii)
The individuals who are Continuing Directors of the Company (as
defined below) cease for any reason to constitute at least a
majority of the Board.
(g)
“Code” shall mean the Internal Revenue Code of 1986, as
amended.
(h)
“Committee” shall mean the Compensation/Stock Option
Committee of the Board.
(i)
“Common Stock” shall mean the $.01 par value common
stock of the Company.
(j)
“Company” shall, except as otherwise provided in
Section 9, have the meaning set forth in the preamble
hereto.
(k)
“Competitive Business” shall mean at any time during
the Term and during the 12-month period immediately following the
Date of Termination, any entity (which term “entity”
shall for purposes of this Section 1(k) include any subsidiaries,
parent entities or other Affiliates thereof) that, as of the Date
of Termination, competes with any of the businesses of the
Company.
(l)
“Continuing Director” means (i) any member of the Board
immediately following the election of directors at the
Company’s 2006 annual meeting of stockholders or (ii) any
person who subsequently becomes a member of the Board who was
elected by a majority of Continuing Directors or whose appointment,
election or nomination for election to the Board is recommended by
a majority of the Continuing Directors (which person shall thereby
become a “Continuing Director”).
(m)
“Date of Termination” shall mean (i) if the
Executive’s employment is terminated by his death, the date
of his death; (ii) if the Executive’s employment is
terminated as a result of Disability, the date provided in Section
6(a)(ii); and (iii) if the Executive’s
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employment is
terminated pursuant to Sections 6(a)(iii) — (vii), the date
specified in the Notice of Termination (or if no such date is
specified, the last day of the Executive’s active employment
with the Company), in each case provided in accordance with this
Agreement.
(n)
“Disability” shall mean any mental or physical illness,
condition, disability or incapacity which:
(i)
Prevents the Executive from discharging substantially all of his
essential job responsibilities and employment duties with or
without reasonable accommodation; and
(ii)
Has prevented the Executive from so discharging his duties for any
120 days in any 365-day period.
A
Disability shall be deemed to have occurred on the 121
st day
in any such 365-day period.
(o)
“Equity Incentive Plan” means the Company’s 1999
Long-Term Incentive Plan, as amended from time to time (or any
other equity based compensation plan or agreement that may be
adopted or entered into by the Company from time to
time).
(p)
“Executive” shall have the meaning set forth in the
preamble hereto.
(q)
The Executive shall have “Good Reason” to resign his
employment upon the occurrence of any of the following without the
Executive’s prior written consent:
(i)
failure of the Company to continue the Executive in the position
of, and with the titles of, Executive Vice President — Chief
Financial Officer;
(ii)
a material diminution or undue dilution in the nature or scope of
the Executive’s employment responsibilities, duties or
authority, a material interference with the discharge of the
Executive’s responsibilities, duties or authority or the
assignment to the Executive of duties or responsibilities that are
materially and adversely inconsistent with his then
position;
(iii)
failure of the Executive to be elected to the Board at any annual
meeting of the Company’s stockholders that occurs during the
Term (unless the Executive is prohibited from serving as a member
of the Board by any applicable law, rule or regulation (including
without limitation any rule promulgated by any national securities
exchange on which the Company’s shares are
listed));
(iv)
relocation of the Company’s executive offices more than 35
miles from New York City, or any requirement that the Executive
relocate from his residence from the place existing on the
Effective Date;
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(v)
failure of the Company to timely make any material payment or
provide any material benefit under this Agreement, or the
Company’s reduction of any compensation or equity or any
material reduction of any benefits that the Executive is eligible
to receive under this Agreement; or
(vi)
the Company’s material breach of this Agreement; provided,
however, that notwithstanding the foregoing the Executive may not
resign his employment for Good Reason unless: (x) the Executive
provides the Company with at least 30 days prior written notice of
his intent to resign for Good Reason (which notice is provided not
later than the 90th day following the date on which the Executive
becomes aware of the occurrence of the event constituting Good
Reason), and (y) the Company does not remedy the alleged
violation(s) within such 30-day period; and, provided, further,
that notwithstanding the foregoing if the Executive is suspended
pursuant to Section 6(b), such suspension (and any corresponding
diminution of the Executive’s title, duties or compensation,
or other change to the Executive’s employment arrangements
described hereunder) shall not, in and of itself, give the
Executive Good Reason to resign his employment.
(r)
“Intellectual Property” shall have the meaning set
forth in Section 9(f).
(s)
“Non-Compete Term” shall have the meaning set forth in
Section 9(a).
(t)
“Notice of Termination” shall have the meaning set
forth in Section 6(b).
(u)
“Option” shall mean an option to purchase Common Stock
pursuant to the Equity Incentive Plan, as amended from time to time
(or any other equity based compensation plan or agreement that may
be adopted or entered into by the Company from time to
time).
(v)
“Person” shall mean an individual, partnership,
corporation, business trust, limited liability company, joint stock
company, trust, unincorporated association, joint venture,
governmental authority or other entity of whatever
nature.
(w)
“Pro-Rata Bonus” shall have the meaning set forth in
Section 7(d).
(x)
“Release” shall have the meaning set forth in Section
7(b).
(y)
“Restricted Stock” shall mean a share or shares of
Common Stock granted to the Executive pursuant to the Equity
Incentive Plan, as amended from time to time (or any other equity
based compensation plan or agreement that may be adopted or entered
into by the Company from time to time).
(z)
“Term” shall have the meaning set forth in Section
2.
(aa)
“Voting Stock” means all capital stock of the Company
which by its terms may be voted on all matters submitted to
stockholders of the Company generally.
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2.
Employment . Subject
to Section 6, the Company shall employ the Executive and the
Executive shall continue in the employ of the Company, for the
period set forth in this Section 2, in the positions set forth in
the first sentence of Section 3 and upon the other terms and
conditions herein provided. The term of employment under this
Agreement (the “Term”) shall be for the period
beginning on the Effective Date and ending on June 7, 2011 unless
earlier terminated as provided in Section 6. The Initial Term
shall automatically be extended for successive one-year periods
(each, an “Extension Term”) unless either party hereto
gives written notice of non-extension to the other party no later
than 90 days prior to the scheduled expiration of the Initial Term
or the then applicable Extension Term (the Initial Term and any
Extension Term shall be collectively referred to hereunder as the
“Term”).
3.
Position and Duties .
The Executive shall serve as Executive Vice President — Chief
Financial Officer of the Company, with such duties and
responsibilities with respect to the Company and its Affiliates as
the Company’s Chief Executive Officer (“CEO”) or
Board of Directors (the “Board”) shall reasonably
direct. The Executive shall devote substantially all of his
business time, attention and efforts, toward the performance of his
duties under this Agreement. During the Term, the Company
shall nominate the Executive for a seat on the Board, and upon the
expiration of each of the Executive’s terms as a director
(or, in the event that the Executive is not elected to the Board at
any annual meeting of the Company’s stockholders, at not less
than one annual meeting following the first annual meeting at which
he in not elected). The Executive shall devote substantially
all of his business time, attention and efforts, toward the
performance of his duties under this Agreement.
Notwithstanding the foregoing, the Executive may manage his
personal investments, be involved in charitable and professional
activities (including serving on charitable and professional
boards), and, with the consent of the Board, serve on not more than
two boards of directors and advisory committees of public companies
(including service on the Board of the Company), so long as such
service does not materially interfere with the performance of the
Executive’s duties hereunder or violate Section 9
hereof. The boards listed on Exhibit A attached hereto
that the Executive serves on as of the Effective Date shall be
deemed to be continued as approved.
4.
Place of Performance
. In connection with his employment during the Term, the
Executive shall be based at the Company’s offices in New York
City, except for necessary travel on the Company’s
business.
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5.
Compensation and Related
Matters .
(a)
Annual Base Salary . At the commencement of the Term,
the Executive shall receive a base salary at a rate of $500,000 per
annum (the “Annual Base Salary”), paid in accordance
with the Company’s general payroll practices for executives,
but no less frequently than monthly. The CEO, Board and the
Committee may in their sole discretion review the rate of Annual
Base Salary payable to the Executive in effect from time to time,
and may, in their sole discretion, increase (but not decrease) the
rate of Annual Base Salary payable hereunder; provided, however,
that any increased rate shall thereafter be the rate of
“Annual Base Salary” hereunder.
(b)
Bonus . With respect to 2007 and each subsequent
fiscal year during the Term (or portion thereof), the Executive
shall be eligible to receive a bonus (the “Bonus”), as
determined pursuant to the Company’s 1999 Long Term Incentive
Plan (or any similar or successor plan) (collectively, the
“Bonus Plan”), and on the basis of the
Executive’s or the Company’s attainment of objective
financial or other operating criteria established by the Committee
in its sole good faith discretion and in consultation with the
Executive. The Bonus for each fiscal year shall be paid to
the Executive no later than 90 days following the completion of
such fiscal year. In addition, the Executive shall be
eligible to participate in any other bonus or compensation plan or
program that may be established by the Committee and that covers
the Executive (even if such plan or program does not provide for
qualified performance-based bonuses within the meaning of Code
Section 162(m)), at a level commensurate with the Executive’s
position.
(c)
Equity Awards .
(i)
As soon as practicable after execution of this Agreement, the
Executive shall be awarded 100,000 shares of Restricted Stock in
accordance with the terms of the Equity Incentive Plan, subject to
such vesting of one-fourth (1/4) thereof on each of the first
anniversary of the Effective Date and each of the three
anniversaries thereafter.
(ii)
For each year during the Term after 2007, the Executive shall be
eligible to be granted Restricted Stock, Options and/or other
equity compensation awards at such time(s) and in such amount(s) as
may be determined by the Committee in its sole discretion, at a
level commensurate with the Executive’s position. For
the avoidance of doubt, the Committee shall have complete and sole
discretion as to whether to grant awards (if any) under this
Section 5(c)(ii).
(iii)
Notwithstanding any provision to the contrary herein or in any
Restricted Stock, Option or other equity award agreement, effective
immediately prior to the occurrence of a Change in Control, all
Restricted Stock, Options and other equity compensation awards then
held by the Executive shall become fully vested and exercisable for
the balance of their respective terms with respect to all shares
subject thereto, and effective immediately upon a termination of
the Executive’s employment hereunder by the Company without
Cause (pursuant to Section 6(a)(v)) or by the Executive for Good
Reason (pursuant to Section 6(a)(iv)), the grant
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of 100,000 shares of
Restricted Stock made on the date of this Agreement shall become
fully vested and exercisable for the balance of its term with
respect to all shares subject thereto.
(d)
Benefits . The Executive (and his eligible dependents)
shall be entitled to receive such benefits (including, without
limitation, fringe benefits and perquisites) and to participate in
such employee benefit plans, including life, health and disability
insurance policies and the Company’s Code Section 401(k)
pension plan, as are generally provided by the Company to its
senior executives in accordance with the terms of such plans,
practices and programs of the Company, at a level commensurate with
the Executive’s position.
(e)
Expenses . The Company shall reimburse the Executive
for all reasonable and necessary expenses incurred by the Executive
in connection with the performance of the Executive’s duties
as an employee of the Company. Such reimbursement is subject
to the submission to the Company by the Executive of appropriate
documentation and/or vouchers in accordance with the customary
procedures of the Company for expense reimbursement, as such
procedures may be revised by the Company from time to time and to
such caps on reimbursements as the Board may from time to time
impose.
(f)
Vacations . The Executive shall be entitled to paid
vacation in accordance with the Company’s vacation policy as
in effect from time to time. However, in no event shall the
Executive be entitled to less than four (4) weeks vacation per
annum.
6.
Termination . The
Executive’s employment hereunder may be terminated by the
Company, on the one hand, or the Executive, on the other hand, as
applicable, without any breach of this Agreement only under the
following circumstances:
(a)
Terminations .
(i)
Death . The Executive’s employment hereunder
shall terminate upon his death.
(ii)
Disability . In the event of the Executive’s
Disability, the Company may give the Executive written notice of
its intention to terminate the Executive’s employment while
he remains so disabled. In such event, the Executive’s
employment with the Company shall terminate effective on the 14th
day after delivery of such notice, provided that within the 14 days
after such delivery, the Executive shall not have returned to
full-time performance of his duties.
(iii)
Cause . The Board may terminate the Executive’s
employment hereunder for Cause in accordance with the terms of
Section 1(e) hereof.
(iv)
Good Reason . The Executive may terminate his
employment for Good Reason in accordance with the terms of Section
1(q) hereof.
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(v)
Without Cause . The Company may terminate the
Executive’s employment without Cause upon 30 days written
notice to the Executive.
(vi)
Resignation without Good Reason . The Executive may
resign his employment without Good Reason upon 60 days written
notice to the Company.
(vii)
Non-Extension of Term . The Executive’s
employment shall terminate as of the last day of the Term if either
party provides notice of non-extension of the Term to the other
pursuant to Section 2.
(b)
Notice of Termination . Any termination of the
Executive’s employment by the Company or by the Executive
under this Section 6 (other than termination pursuant to paragraph
(a)(i) or (a)(vii)) shall be communicated by a written notice to
the other party hereto indicating the specific termination
provision in this Agreement relied upon, setting forth in
reasonable detail any facts and circumstances claimed to provide a
basis for termination of the Executive’s employment under the
provision so indicated, and specifying a Date of Termination in
accordance with this Agreement (a “Notice of
Termination”); provided, the Company may suspend the
Executive from his position with full pay during any notice
period.
(c)
Upon the occurrence of any termination of the Executive’s
employment with the Company, the Executive shall and shall be
deemed to immediately resign from any membership on the Board and
from any committees thereof (and the Executive shall promptly
tender to the Board a written resignation letter effecting the
foregoing).
7.
Severance Payments and
Benefits .
(a)
Termination for any Reason . In the event the
Executive’s employment with the Company is terminated for any
reason, as soon as reasonably practicable after such termination
the Company shall pay the Executive (or his beneficiary in the
event of his death) a lump sum equal to any unpaid Annual Base
Salary that has accrued as of the Date of Termination, any
unreimbursed expenses due to the Executive, and an amount for any
accrued but unused vacation days and any earned but unpaid Bonus
for any fiscal year of the Company completed prior to the date of
such termination. The Executive shall also be entitled to
accrued, vested benefits under the Company’s benefit plans
and programs as provided therein. The Executive shall be
entitled to the cash severance payments described below only as set
forth herein, and the provisions of this Section 7 shall supersede
in their entirety any severance payment provisions in any severance
plan, policy, program or arrangement maintained by the
Company.
(b)
Terminations without Cause or for Good Reason . Except
as otherwise provided by Section 7(c) with respect to certain
terminations of employment in connection with a Change in Control,
if the Executive’s employment shall terminate without Cause
(pursuant to Section 6(a)(v)), or for Good Reason (pursuant to
Section 6(a)(iv)), the Company shall (subject to the
Executive’s entering into a General Release with the Company
in substantially the form attached hereto as Exhibit B (the
“Release”)):
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(i)
Pay to the Executive as severance an amount equal to the
Executive’s then current Annual Base Salary in equal monthly
installments during the period beginning on the Date of Termination
and ending on the first anniversary thereof; provided, however,
that no amount shall be payable on or following the date the
Executive first (i) breaches any of the covenants set forth in
Sections 9(a) or 9(b) or (ii) materially breaches any of the
covenants set forth in Section 9(c) or 9(e), which is not remedied
(if remediable) within 30 days after receipt of written notice from
the Company specifying the breach;
(ii)
Continue to provide, at the Company’s expense, the Executive
(and his eligible dependents) with the medical, dental and life
insurance coverage in which he (or his eligible dependents) was
participating as of the Date of Termination (at a level then in
effect with respect to coverage and employee premiums) until the
first anniversary of the Date of Termination; and
(iii)
Pay to the Executive a Pro-Rata Bonus, as defined in Section 7(d),
when bonuses are paid for the year of termination.
(c)
Certain Terminations in connection with a Change in Control
. If the Executive’s employment shall terminate without
Cause (pursuant to Section 6(a)(v)) or for Good Reason (pursuant to
Section 6(a)(iv)) during the period commencing six months prior to,
and ending 18-months after, a Change in Control, in any such case,
the Company shall:
(i)
Pay to the Executive an amount equal to the Executive’s then
current Annual Base Salary; payable in cash in a lump sum as soon
as reasonably practicable after such termination of employment but
in no event later than five (5) business days thereafter (or, if
such termination occurs prior to the consummation of the Change in
Control, as soon as reasonably practicable after the effective date
of such Change in Control);
(ii) &
