Exhibit 10.1
MIVA,
INC.
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made
this 15th day of December, (this “Agreement”) between
MIVA, Inc. (“MIVA” or the “Company”), a
Delaware corporation, and Lowell Robinson
(“Employee”).
Recitals
The Company wishes to employ Employee
and Employee wishes to be employed by the Company on the terms and
conditions set forth in this Agreement.
Statement of Agreement
In consideration of the foregoing,
and of Employee’s employment, the parties agree as
follows:
1. Employment .
Employee’s employment with MIVA shall be upon the terms and
conditions hereinafter set forth to become effective upon execution
of this Agreement (the “Effective Time”).
2. Duties .
(a) Employee’s
first day of employment shall be December 15, 2006 (the
“Start Date”). Employee is being hired as Chief
Administrative and Chief Financial Officer of the Company,
reporting to the Chief Executive Officer, and Employee shall
initially be responsible for all finance and accounting, M&A,
internal audit, Sarbanes-Oxley compliance, investor relations,
technology operations and infrastructure, global human resources
and shall perform such other or additional duties and
responsibilities consistent with Employee’s title(s), status,
and positions as the Chief Executive Officer may, from time to
time, prescribe. Employee’s performance will be subject to
review by the Chief Executive Officer with oversight by the Board
of Directors of Miva (“Board of Directors,” in each
case to mean either the Board of Directors as a whole or the
Compensation Committee of the Board of Directors in accordance with
the delegation policies of the Board of Directors).
(b) So
long as Employee is employed under this Agreement, Employee agrees
to devote substantially all of his working time and efforts
exclusively on behalf of the Company and to competently,
diligently, and effectively discharge all duties of Employee
hereunder. Employee shall not be prohibited from engaging in such
personal, charitable, or other non-employment activities as do not
interfere with the performance of his duties hereunder and that do
not violate the other provisions of this Agreement. Anything herein
to the contrary notwithstanding, nothing shall preclude the
Executive from (i) serving on the boards of directors of Jones
Apparel Group, International Wire Group and Diversified Investment
Advisors or of other corporations subject to reasonable approval of
the Board, (ii) engaging in charitable
activities and community affairs and (iii) managing his
personal investments and affairs, provided that the activities
described in the preceding clauses (i) through (iii) do
not materially interfere with the proper performance of his duties
and responsibilities hereunder. Employee further agrees to comply
fully with all reasonable generally applicable policies of the
Company as are from time to time in effect.
(c) The
Employee shall be based out of the Company’s New York, New
York office. If the Company decides to move its operations more
than 35 miles from its current offices in New York, New York,
Employee shall not be required to relocate and, to the extent the
Employee cannot perform assigned duties hereunder as a result of
such a move, such non-performance will not constitute Cause (as
defined below).
3. Compensation .
(a) As
compensation for all services rendered to the Company pursuant to
this Agreement, in whatever capacity rendered, the Company will pay
to Employee during the term hereof a minimum base salary at the
rate of $350,000 per year (the “Basic Salary”), payable
in accordance with the usual payroll practices of the Company. The
Basic Salary thereafter may be increased, but not decreased, from
time to time, by the Board of Directors in connection with reviews
of Employee’s performance occurring no less frequently than
annually.
(b) Employee
will be entitled to receive incentive compensation pursuant to the
terms of plans adopted by the Board of Directors from time to time.
For fiscal 2007 such incentive compensation shall not be less than
$105,000 with a maximum potential of $210,000, based upon attaining
objectives established by the Compensation Committee, payable by
March 31, 2008, provided Executive has not terminated his
employment without Good Reason (as defined below) or been
terminated by the Company for Cause (as defined below) as of that
date (the “Guaranteed Bonus”).
(c) On
the Start Date and pursuant to the Company’s 2006 Stock Award
and Incentive Plan, the Company will grant to Employee an aggregate
of 175,000 restricted stock units, pursuant to the Restricted Stock
Unit Agreements attached hereto as Exhibit A and
Exhibit B . The Board of Directors shall review
Employee’s performance on an annual basis pursuant to the
same review process employed by the Board of Directors for the
Company’s other officers. In connection with such annual
review, the Employee may be entitled to receive additional equity
compensation. Such equity compensation will be granted, if at all,
in the sole discretion of the Board of Directors on terms and
conditions they determine.
Except as otherwise provided in an
individual award agreement with Employee, if there is a change in
control of the Company (as that term is used in the governing
documents of the applicable equity compensation plan) any equity
compensation granted to Employee shall fully vest on the date the
change in control is consummated and, in addition, stock options
shall remain exercisable during the term of such option(s) even if
the Employee is no longer employed by the Company. Additionally,
except as set forth in any equity compensation agreements or plans,
if the Employee’s employment with the Company is terminated
by the Company without Cause (as defined below) or by Employee for
Good Reason (as defined below), any restricted
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stock
units, stock options or other equity compensation granted to
Employee shall immediately fully vest and, in the case of stock
options, remain exercisable until the later of (i) the 15
th day
of the third month following the date at which the stock options
would otherwise have expired in accordance with their original
terms, or (ii) December 31 of the calendar year in which
the stock options would otherwise have expired in accordance with
their original terms.
4. Business Expenses .
The Company shall promptly pay directly, or reimburse Employee for,
all business expenses to the extent such expenses are paid or
incurred by Employee during the term of employment in accordance
with Company policy in effect from time to time and to the extent
such expenses are reasonable and necessary to the conduct by
Employee of the Company’s business and properly
substantiated. The Company shall promptly pay directly, or
reimburse Employee for, reasonable attorney fees incurred in
connection with the negotiation, documentation and implementation
of this Agreement.
5. Benefits . During the
term of this Agreement and Employee’s employment hereunder,
the Company shall provide to Employee such insurance, vacation,
sick leave and other like benefits as are provided to other
officers of the Company from time to time. Employee will use
reasonable best efforts to schedule vacation periods to minimize
disruption of the Company’s business. Nothing in this
Agreement shall be construed to limit, condition, or otherwise
encumber the right of the Company, in its sole discretion, to
amend, discontinue, substitute, or maintain any benefit plan,
program or perquisite.
6. Term; Termination
.
(a) The
Company shall employ the Employee, and the Employee accepts such
employment, for an initial term commencing on the date of this
Agreement and ending on the first anniversary of the date of this
Agreement. Thereafter, this Agreement shall be extended
automatically for additional twelve-month periods, unless
terminated as described herein. Employee’s employment may be
terminated at any time as provided in this Section 6. For
purposes of this Section 6, “Termination Date”
shall mean the date on which any notice period required under this
Section 6 expires or, if no notice period is specified in this
Section 6, the effective date of the termination referenced in
the notice.
(b) The
Company may terminate Employee’s employment without Cause (as
defined below) upon giving 30 days’ advance written
notice to Employee. If Employee’s employment is terminated
without Cause under this Section 6(b), the Employee shall be
entitled to receive promptly following the Termination Date
(A) the earned but unpaid portion of Employee’s Basic
Salary through the Termination Date; (B) any other amounts or
benefits owing to Employee under the then applicable employee
benefit, incentive, or equity plans and programs of the Company,
which shall be paid or treated in accordance with Section 3
hereof and otherwise in accordance with the terms of such plans and
programs; and (C) over a period of 12 months, in one
installment representing 50% of the total payable on the date which
is six months and one day following the Termination Date and the
remaining 50% paid in equal monthly installments over the following
six months, an amount equal to the sum of (i) 100% of
Employee’s annual Basic Salary at the time of termination,
(ii) the Termination Bonus (as defined below); and
(iii) the cash value of health, dental, vision, and life
insurance benefits that
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would be
paid on behalf of the Employee by the Company if Employee were
still employed during the twelve month period following the
Termination Date (“Severance Period”); provided,
however, that if the Company determines that any amounts to be paid
to Employee hereunder are subject to Section 409A of the Internal
Revenue Code of 1986, as amended (the “Code”), then the
Company shall in good faith adjust the form or timing of such
payments as it reasonably determines to be necessary or advisable
to be in compliance with Section 409A of the Code, including,
if necessary, the imposition of a delay in the time of payment to a
date that is at least six months and one day following the
Termination Date or such other period following the Termination
Date as is required by Section 409A. Collectively, the
benefits described in items (A), (B), and (C) above,
regardless of the provision giving rise to their award, are
hereinafter referred to as the “Severance
Benefits.”
Example of payments required to be made to Employee following a
change in control in 2007, in the event he is terminated without
Cause or he terminates for Good Reason. Following his
Termination, Employee would receive the following cash payments;
(i) Basic Salary to the Termination Date; (ii) the greater of
the guaranteed Bonus for 2007 of no less than $105,000 (up to
$210,000) or the Termination Bonus; (iii) one year of his
annual Basic Salary; and (iv) a cash payment equal to the
value of benefits that would have been provided during the
Severance Period.
As a condition precedent to receiving
any benefits and/or payments after the date of termination that are
not otherwise statutorily required, Employee shall provide the
Company with a written general release that releases the Company
and its affiliates from both known and unknown claims and in which
Employee agrees not to disparage the Company or its affiliates and
in which the Employee acknowledges his/her obligations under their
Non-Competition, Confidentiality and Non-Solicitation Agreement
with the Company. Such agreement shall be in form and substance
reasonably acceptable to the Company. If such general release has
not been executed and become irrevocably effective prior to the
date on which any payment hereunder would otherwise be due, such
payment shall not be made.
(c) The
Company may terminate Employee’s employment upon a
determination by the Company that “Cause” exists for
Employee’s termination and the Company serves written notice
of such termination upon Employee. As used in this Agreement, the
term Cause shall refer only to any one or more of the following
grounds:
(i)
commission of a material and substantive act of theft, including,
but not limited to, misappropriation of funds or any property of
the Company;
(ii)
intentional engagement in activities or conduct clearly injurious
to the best interests or reputation of the Company, including,
knowing participation in any activity intended by Employee to
result in misreporting the financial affairs of the Company or any
other activities or conduct which in fact result in material and
substantial injury to the Company;
(iii)
refusal to perform assigned duties and responsibilities (so long as
the Company does not assign any duties or responsibilities that
would give the Employee
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Good Reason to
terminate employment as described in Section 6(e)) after
receipt by Employee of written notice and 30 days to
cure;
(iv)
gross insubordination by Employee which shall consist only of a
willful refusal to comply with a lawful written directive to
Employee by the Chief Executive Officer;
(v) the
clear violation of any of the material terms and conditions of this
Agreement or any written agreement or agreements Employee may from
time to time have with the Company (following 30 days’
written notice from the Company specifying the violation and
Employee’s failure to cure such violation within such
30 day period);
(vi)
Employee’s substantial dependence, as reasonably determined
by the Chief Executive Officer or the Board of Directors of the
Company, on alcohol or any narcotic drug or other controlled or
illegal substance that materially and substantially prevents
Employee from performing his/her duties hereunder; or
(vii)
the final and unappealable conviction of Employee of a crime that
is a felony, a misdemeanor involving an act of moral turpitude, or
a misdemeanor committed in connection with Employee’s
employment by the Company which causes the Company a substantial
detriment.
In the
event of a termination under this Section 6(c), the Company
will pay Employee the earned but unpaid portion of Employee’s
Basic Salary through the Termination Date. If any determination of
substantial dependence under Section 6(c)(vi) is disputed by
the Employee, the parties hereto agree to abide by the decision of
a panel of three physicians appointed in the manner as specified in
Section 6(d) of this Agreement. If any determination of
“Cause” is made under a provision of this
Section 6(c), other than 6(c)(vi) or (vii), that Employee
contests, Employee shall have the opportunity, within 30 days
of such determination, to personally ap
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