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EXHIBIT 10.42
EMPLOYMENT AGREEMENT
dated as of February 8, 2005, between
GREENFIELD ONLINE, INC., a Delaware
corporation (the "Company"), and MATTHEW D.
DUSIG (the "EXECUTIVE").
The Company and its subsidiaries are engaged in the business
(the
"SUBJECT BUSINESS") of providing marketing
research data collection services
over the Internet and online marketing
services (the Company and its
subsidiaries, now existing or hereafter
acquired or created are collectively
referred to as the "GREENFIELD ENTITIES").
The Executive has experience in the
field of senior level corporate management
as well as experience within the
online marketing research industry and the
online marketing industry, which
experience is valuable to the Subject
Business and the Greenfield Entities and
the Company desires to employ and the
Executive desires to be employed as the
Company's Senior Vice President, Corporate
Strategy.
The Executive and the Company desire to enter into this
Employment
Agreement to set forth the terms governing
the Executive's employment as well as
to provide adequate and reasonable
protection for the Greenfield Entities'
legitimate business interest of
safeguarding their trade secrets, confidential
information and customer and employee
relationships.
NOW, THEREFORE, in consideration of the mutual covenants
contained
herein and other good and valuable
consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties
hereto agree as follows:
SECTION 1. CONSIDERATION. Executive
recognizes and agrees that immediately prior
to the execution of this Agreement he was
an employee pursuant to a Five (5)
year contract with Zing Wireless, Inc.,
("ZING", now a wholly owned subsidiary
of the Company), that was terminable by
Zing only for cause. Executive agrees
that good and valuable consideration exists
to support the execution and
enforcement of this Agreement including,
but not limited to his offer of
employment with the Company following the
merger of Zing with the Company, and
the grant of Options as provided
herein.
SECTION 2. EMPLOYMENT.
The Company shall employ the Executive, and the Executive
accepts
employment with the Company, as an at-will
employee upon the terms and
conditions set forth in this Agreement for
the period beginning on the Effective
Date (as defined in Section 13(i) and
ending on the period ending one year
following the Effective Date (the
"EMPLOYMENT PERIOD"), unless extended after
the Effective Date by written agreement of
the parties. AS AN EMPLOYEE-AT-WILL,
EXECUTIVE MAY BE TERMINATED BY COMPANY AT
ANY TIME WITH OR WITHOUT CAUSE OR
ADVANCE NOTICE, SUBJECT TO THE SEVERANCE
REQUIREMENTS IN SECTION 6.
SECTION 3. BASE SALARY, BONUS AND
BENEFITS.
(a) During
the first year of the Employment Period, the Executive's
base salary shall be no less than $200,000
per annum. (the "BASE SALARY").
During the first year of employment under
this Agreement, Executive's Base
Salary may be reviewed by the Company's
Compensation Committee for upward
adjustment. After the first year of
employment under this
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Agreement, Executive's Base Salary shall be
reviewed for upward or downward
adjustment as determined by the
Compensation Committee. Subject to the contents
herein Base Salary shall be payable in
equal Monthly or Bi-Monthly installments.
In addition, during the Employment Period,
the Executive shall be entitled to
(i) participate in all employee benefit
programs and published bonus programs
for which other similarly situated
executives of Company are generally eligible,
(ii) participate in all group insurance
plans, including, but not limited to
health insurance plans, available generally
to other similarly situated
executives of Company, and (iii) receive
such paid or unpaid leave benefits for
which other similarly situated executives
of Company are generally eligible,
and/or as provided for in section (b)
hereinafter.
(b) Executive is hereby granted three (3) Weeks vacation during
each
year of this contract, pro-rated for
partial years of employment, to be taken by
him at such times and dates, and in such
number of consecutive days as may be
reasonably agreed to between himself and
the CEO of the Company in light of the
business needs of the Company.
Notwithstanding the foregoing, if Executive meets
100% of his variable compensation plan for
2005, he will be entitled to receive
an extra week of vacation in the second
year of this Agreement.
(c) In addition to the Base Salary and benefits set forth in
paragraph (a) above, during the employment
period the Executive shall be
entitled to participate in Company's 2005
Executive Compensation Plan as
described in Schedule A, attached
hereto.
(d) Company will grant the Executive options (the "OPTIONS") to
purchase 50,000 shares of Company's Common
Stock, or such other similar equity
incentive permissible under the Greenfield
Online 2004 Equity Incentive Plan
(the "PLAN"). This grant is subject to the
approval by Greenfield's
stockholders, at the 2005 annual meeting
thereof, of an increase in the number
of shares available for grant under the
Plan, sufficient to cover these grants,
when taken into account together with all
other grants committed to by Company
on a similar contingent basis. The Option
strike price will be equal to the fair
market value of the underlying common stock
on the date of issuance (which shall
be as soon as practicable after such
increase), with reference to the closing
sale price for the Common Stock (or the
closing bid, if no sale was reported) as
quoted on the NASDAQ National Market (or
the exchange or market with the
greatest volume of trading in the Common
Stock), as reported in The Wall Street
Journal or such other source as Company's
board of directors deems reliable.
Such Options will vest according to the
following schedule: 2.083% per month
during each of the first 12 months
following the grant and 12.5% on each
subsequent six-month anniversary.
(e) The Company shall reimburse the Executive for all
reasonable
expenses incurred by him in the course of
performing his duties under this
Agreement which are consistent with the
Company's policies in effect generally,
and as communicated to Executive, from time
to time with respect to travel,
entertainment and other business expenses,
subject to the Company's reasonable
requirements with respect to reporting and
documentation of such expenses.
(f) The Company shall deduct from any payments to be made by it
to
the Executive under this Agreement any
amounts required to be withheld in
respect of any Federal, state or local
income or other taxes.
SECTION 4. POSITION AND DUTIES.
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(a) During the Employment Period, the Executive shall initially
serve as Senior Vice President, Corporate
Strategy, and shall report to the CEO
of Company. The Executive shall perform his
duties at the Company's Encino,
California offices, or such other offices
in the Los Angeles area as designated
by the Company. The Executive acknowledges
and agrees that he owes a fiduciary
duty of loyalty to the Company to discharge
his duties and otherwise act in a
manner consistent with the best interests
of the Company or its subsidiaries.
(b) During the Employment Period, the Executive shall devote
his
best efforts and full working time,
attention and energies to the performance of
his duties and responsibilities under this
Agreement (except for periods of
leave or vacation to which he is entitled
pursuant to Section 3(a) and except
for illness or incapacity). During the
Employment Period, the Executive shall
not unreasonably engage in any business
activity which, in the reasonable
judgment of the Board or the board of
directors of Company (excluding the
Executive if he should be a member of the
Board at the time of such
determination), conflicts with the duties
of the Executive hereunder, whether or
not such activity is pursued for gain,
profit or other pecuniary advantage.
SECTION 5. TERMINATION.
(a) Termination Date. The Executive's employment under this
Agreement shall terminate upon the earliest
to occur (the date of such
occurrence being the "TERMINATION DATE") of
(i) the effective date of the
Executive's resignation (a "RESIGNATION"),
(ii) the Executive's death or
Disability (an "INVOLUNTARY TERMINATION"),
(iii) the effective date of a
termination of the Executive's employment
for Cause (a "TERMINATION FOR CAUSE"),
(iv) the effective date of a termination of
the Executive's employment for
reasons that do not constitute Cause (a
"TERMINATION WITHOUT CAUSE"); and (v)
the expiration of the Employment Term
without continuation or renewal of this
Agreement. The effective date of a
Resignation shall be as determined under
Section 5(b); the effective date of an
Involuntary Termination shall be the date
of death or, in the event of a Disability,
the date specified in a notice
delivered to the Executive by the Company;
and the effective date of a
Termination for Cause or a Termination
Without Cause shall be the date specified
in a notice delivered to the Executive by
the Company of such termination
(b) Resignation. The Executive shall give the Company at least
30
days' prior written notice of a
Resignation, with the effective date of such
Resignation specified therein. The Company
may, in its discretion, accelerate
the effective date of the Resignation.
SECTION 6. EFFECT OF TERMINATION;
SEVERANCE.
(a) In the event of a Termination Without Cause or an
Involuntary
Termination, the Executive or his
beneficiaries or estate shall have the right
to receive the following, provided however,
that in order to receive any amounts
pursuant to Sections 6(a)(ii) and 6(a)(iv),
Executive must provide Company with
an effective release and waiver agreement
releasing any and all claims against
the Greenfield Entities and not revoke or
be in breach of such agreement (a copy
of such release, which shall be conformed
to California law is attached as
EXHIBIT A):
(i) the unpaid portion of the Base Salary, computed on a pro
rata basis
to the Termination Date;
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(ii) Base Salary for the period beginning on the Termination
Date and
ending one year after the Effective Date of this Agreement,
promptly
payable in full within fifteen (15) days of such Termination;
with any
other remaining obligations being met by Company when due;
provided,
however, that in the event of a breach by the Executive of
Section 7
or 8 on or after the Termination Date, the provisions of
Section
10 shall
apply;
(iii) reimbursement for any expenses for which the Executive
shall not
have been previously reimbursed, as provided in Section 3(d);
and
(iv) the portion of any bonus payable in accordance with
Section
3(b) for the calendar year in which such termination occurs,
pro
rated
through the date of such termination on a per diem basis,
payable
after the
end of the calendar year when paid to other members of senior
management; provided, however, that in the event of a breach by
the
Executive
of Section 7 or 8 on or after the Termination Date, the
provisions
of Section 10 shall apply;
(b) In the event of a Termination for Cause, a Resignation or
the
expiration of the Employment Term without
continuation or renewal of this
Agreement, the Executive or his
beneficiaries or estate shall have the right to
receive the following:
(i) the unpaid portion of the Base Salary, computed on a pro
rata basis
to the Termination Date; and
(ii) reimbursement for any expenses for which the Executive
shall not
have been previously reimbursed, as provided in Section 3(d).
(iii) payment of any other sums and compliance with any other
obligation
by Law or Contract due Executive.
(c) Upon any termination, neither the Executive nor his
beneficiaries or estate shall have any
further rights under this Agreement or
any rights arising out of this Agreement
other than as provided in Sections 6(a)
and (b) above.
SECTION 7. NONDISCLOSURE OF CONFIDENTIAL
INFORMATION; INVENTIONS AND PATENTS.
The Executive shall execute and comply with the Employee
Invention
Assignment and Confidentiality Agreement
("CONFIDENTIALITY AGREEMENT"), the form
of which is attached hereto as EXHIBIT B
and incorporated by reference in this
Agreement.
SECTION 8. POST-EMPLOYMENT
RESTRICTIONS.
The Executive acknowledges and agrees with the Greenfield
Entities
that, during the course of the Executive's
employment with the Company, the
Executive has had and will continue to have
the opportunity to develop
relationships with existing employees,
customers and other business associates
of the Greenfield Entities which
relationships constitute goodwill of the
Greenfield Entities, and that they would be
irreparably damaged if the Executive
were to
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take actions that would damage or
misappropriate such goodwill. Accordingly, the
Executive agrees as follows:
(a) The Executive covenants and agrees that, during the period
commencing with the Effective Date and
ending on the second anniversary of the
date on which the Executive ceases to be
employed by the Company for any reason
whatsoever, the Executive will not,
directly or indirectly, either for himself
or for any other person or entity (i)
solicit any employee of the Greenfield
Entities to terminate his or her employment
with the Greenfield Entities or
employ any such individual during his or
her employment with the Greenfield
Entities and for a period of one year after
such individual terminates his or
her employment with the Greenfield
Entities, (ii) solicit any customer of the
Greenfield Entities to purchase or
distribute information, products or services
of or on behalf of the Executive or such
other person or entity that are
competitive with the information, products
or services provided by the
Greenfield Entities, or (iii) take any
action that will cause injury to the
business relationships between the
Greenfield Entities or any of their employees
and any lessor, lessee, vendor, supplier,
customer, distributor, employee,
consultant or other business associate of
the Greenfield Entities as such
relationship relates to the conduct of
their business. To the extent that the
covenant provided for in this Section 8(a)
may later be deemed by a court to be
too broad to be enforced with respect to
its duration or with respect to any
particular activity, the court making such
determination shall have the power to
reduce the duration or scope of the
provision, and to add or delete specific
words or phrases to or from the provision.
The provision as modified shall then
be enforced.
(b) The Executive believes that he has received and will
receive
sufficient consideration and other benefits
as an employee of the Company and as
otherwise provided hereunder or as
described in the recitals hereto, to clearly
justify the restrictions in this Section
which, in any event (given his
education, skills and ability), the
Executive does not believe would prevent him
from otherwise earning a living.
SECTION 9. INSURANCE.
The Company may, for its own benefit, maintain "keyman" life
and
disability insurance policies covering the
Executive. The Executive will
cooperate with the Company and provide such
information or other assistance as
the Company may reasonably request in
connection with the Company obtaining and
maintaining such policies.
SECTION 10. ENFORCEMENT.
Because the Executive's services are unique and because the
Executive has access to confidential
information, the parties hereto agree that
money damages would be an inadequate remedy
for any breach of this Agreement.
Therefore, in the event of a breach or
threatened breach of this Agreement, the
Greenfield Entities or their successors or
assigns may, in addition to other
rights and remedies existing in their
favor, apply to any court of competent
jurisdiction in New York, N.Y. for specific
performance and/or injunctive or
other relief in order to enforce, or
prevent any violations of, the provisions
hereof (without posting a bond or other
security). In addition to the foregoing,
and not in any way in limitation thereof,
or in limitation of any right or
remedy otherwise available to the
Greenfield Entities, if the Executive violates
any provision of the foregoing Sections 7
or 8 or of the Confidentiality
Agreement, any payments then or
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thereafter due from the Company to the
Executive pursuant to Sections 6(a)(ii)
and 6(a)(iv) shall be terminated forthwith,
subject to a court of Law ruling
that such violation occurred and the
Greenfield Entities' obligation to pay and
the Executive's right to receive such
payments shall terminate and be of no
further force or effect, in each case
without limiting or affecting the
Executive's obligations under such Sections
7 or 8 or the Greenfield Entities'
other rights and remedies available at law
or equity. The Company's failure to
pay to the Executive any sums why may be
due pursuant to Sections 6(a)(ii) and
6(a)(iv) during the pendency of such
dispute shall not give rise to additional
damages.
SECTION 11. REPRESENTATIONS.
Each party hereby represents and warrants to the other party
that
(a) the execution, delivery and performance
of this Agreement by such party does
not and will not conflict with, breach,
violate or cause a default under any
agreement, contract or instrument to which
such party is a party or any
judgment, order or decree to which such
party is subject, except for the
existing employment contract which is to be
terminated prior to execution
hereof, and (b) upon the execution and
delivery of this Agreement by such party,
and prior termination of the existing
employment contract, this Agreement will
be a valid and binding obligation of such
party, enforceable in accordance with
its terms, except as enforcement hereof may
be limited by any applicable
bankruptcy, reorganization, insolvency or
other laws affecting creditors rights
generally or by general principles of
equity. In addition, the Executive
represents and warrants to the Company that
the Executive is not a party to or
bound by any employment agreement,
consulting agreement, non-compete agreement,
confidentiality agreement or similar
agreement with any other person or entity.
The Company and the Executive, subject to
execution by all the parties hereto,
hereby terminate all existing employment or
consulting agreements between them,
if any, to the extent such agreements may
be in effect after the date hereof.
SECTION 12. DEFINITIONS.
"BOARD" shall mean the board of directors of the Company.
"BUSINESS DAY" shall mean any day that is not a Saturday, Sunday,
or
a day on which banking institutions in New
York are not required to be open.
"CAUSE" shall mean (i) the Executive's breach of any of the terms
of
this Agreement; (ii) the conviction of a
crime or entry of a plea of nolo
contender involving fraud, theft or
dishonesty by the Executive; (iii) the
Executive's disregard of lawful
instructions of the Board or superiors (if any),
so long as conflicting instructions are not
given and for so long as the
conflict is not resolved, (iv) violation of
written policies of the Company
which are transmitted to Executive; (v) the
use of alcohol or drugs by the
Executive to an extent that, in the good
faith determination of the Board, such
use interferes in any manner with the
performance of the Executive's duties and
responsibilities; (vi) the conviction of
the Executive for violating any law
constituting a felony (including the
Foreign Corrupt Practices Act of 1977) or
(vii) any other act or omission that
constitutes cause under applicable law.
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"DISABILITY" shall mean the physical or mental inability of the
Executive (i) to substantially perform,
with any reasonable accommodation
required by relevant law, all of his duties
under this Agreement for a period of
90 consecutive days or longer or for any 90
days in any period of 365
consecutive days, or (ii) that, in the
opinion of a physician selected by the
Board (excluding the Executive if the
Executive is a member of the Board at such
time) is likely to prevent the Executive
from substantially performing, with any
reasonable accommodation required by
relevant law, all of his duties under this
Agreement for more than 90 days in any
period of 365 consecutive days.
SECTION 13. GENERAL PROVISIONS.
(a) Severability. It is the desire and intent of the Parties
hereto
that the provisions of this Agreement be
enforced to the fullest extent
permissible under the laws and public
policies of the State of Delaware.
Accordingly, if any particular provision of
this Agreement shall be adjudicated
by a court of competent jurisdiction in New
York, N.Y. to be invalid, prohibited
or unenforceable for any reason, such
provision, as to such jurisdiction, shall
be ineffective, without invalidating the
remaining provisions of this Agreement
or affecting the validity or enforceability
of this Agreement. Notwithstanding
the foregoing, if such provision could be
more narrowly drawn so as not to be
invalid, prohibited or unenforceable in
such jurisdiction, it shall, as to such
jurisdiction, be so narrowly drawn, without
invalidating the remaining
provisions of this Agreement.
(b) Notices. All notices, requests, demands, claims and other
communications hereunder shall be in
writing and sufficient if (i) delivered
personally, (ii) deli
