<PAGE>
U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-QSB
(MARK ONE)
|X| Quarterly report under Section 13 or 15(d) of the Securities
Exchange Act of 1934 For the quarterly period ended March 31,
2000
| | Transition report under Section 13 or 15(d) of the Exchange Act
Commission File No. 1-11873
K2 DESIGN, INC.
(Exact Name of Small Business Issuer as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of
Incorporation or Organization)
13-3886065
(I.R.S. Employer
Identification Number)
30 Broad Street, 16th Floor
New York, New York 10004
(Address of Principal Executive Offices)
(212) 301-8800
(Issuer's Telephone Number, Including Area Code)
Check whether the issuer: (1) filed all reports required by Section 13 or 15(d)
of the Exchange Act during the past 12 months (or for such shorter period that
the registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.
Yes /x/ No / /
APPLICABLE ONLY TO CORPORATE ISSUERS:
State the number of shares outstanding of each of the issuer's classes of common
equity, as of the latest practicable date:
Class Outstanding at May 5, 2000
----- --------------------------
Common stock, par value $.01 per share 3,359,818
Common stock redeemable purchase warrants 1,000,000
Transitional Small Business Disclosure Format (check one):
Yes / / No /x/
<PAGE>
K2 DESIGN, INC. AND SUBSIDIARY
INDEX
<TABLE>
<CAPTION>
Page
<S> <C>
PART 1 - FINANCIAL INFORMATION
Item 1. Financial Statements
Consolidated balance sheet - March 31, 2000 (unaudited)...........................................1
Consolidated statements of operations - three months ended
March 31, 2000 (unaudited) and March 31, 1999 (unaudited).....................................2
Consolidated statements of cash flows - three months ended
March 31, 2000 (unaudited) and March 31, 1999 (unaudited).....................................3
Notes to consolidated financial statements ......................................................4
Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations............6
PART II - OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K................................................................10
SIGNATURES..............................................................................................11
</TABLE>
<PAGE>
PART I
FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS.
K2 DESIGN, INC. AND SUBSIDIARY
CONSOLIDATED BALANCE SHEET
MARCH 31, 2000
(unaudited)
ASSETS
<TABLE>
<S> <C>
CURRENT ASSETS:
Cash & cash equivalents $ 2,321,994
Accounts receivable, net of allowance for doubtful accounts of $100,000 845,850
Unbilled revenue 1,285,199
Prepaid expenses and other current assets 83,858
Investment in securities available for sale 4,345,000
-----------
Total current assets 8,881,901
FIXED ASSETS, net 640,468
RESTRICTED CASH 150,711
OTHER ASSETS 1,250
-----------
Total assets 9,674,330
===========
LIABILITIES & STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Current portion of capital lease obligations $ 28,712
Accounts payable 435,539
Accrued compensation & payroll taxes 69,926
Accrued expenses 755,716
Customer advances 63,333
-----------
Total current liabilities 1,353,226
DEFERRED TAX LIABILITY 1,165,130
LONG-TERM CAPITAL LEASE OBLIGATIONS 34,078
-----------
Total liabilities 2,552,434
STOCKHOLERS' EQUITY:
Preferred Stock, $0.01 par value, 1,000,000 shares authorized;
0 shares issued and outstanding -
Common Stock, $0.01 par value 9,000,000 shares authorized;
3,773,485 shares issued and 3,356,068 shares outstanding 37,735
Treasury Stock, 417,417 shares at cost (819,296)
Additional paid-in capital 7,062,923
Accumulated other comprehensive income 1,747,696
Accumulated deficit (907,162)
-----------
Total stockholders' equity 7,121,896
-----------
Total liabilities & stockholders' equity $ 9,674,330
===========
</TABLE>
See Notes to Consolidated Financial Statements
1
<PAGE>
K2 DESIGN, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
Three Months Ended
March 31,
2000 1999
---- ----
(unaudited) (unaudited)
----------- -----------
<S> <C> <C>
Gross revenues $ 1,933,010 $ 1,444,063
Less: Pass-through costs (444,162) (976,416)
----------- ------------
Net revenues 1,488,848 467,647
Direct salaries and costs 885,078 436,475
Selling, general and administrative expenses 857,100 632,544
Depreciation 79,417 96,010
Loss from operations before interest & other ----------- ------------
income, net and income taxes (332,747) (697,382)
Interest and other income, net 41,634 25,226
Provision for income taxes 4,120 9,325
----------- ------------
Net loss $ (295,233) $ (681,481)
=========== ============
Net loss per share -
Basic and diluted $ (0.09) $ (0.20)
----------- ------------
Weighted average basic common shares outstanding 3,346,874 3,459,205
=========== ============
</TABLE>
See Notes to Consolidated Financial Statements
2
<PAGE>
K2 DESIGN, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
Three Months Ended
March 31,
2000 1999
---- ----
(unaudited) (unaudited)
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss $ (295,233) $ (681,481)
Adjustments to reconcile net loss to net cash used in
Operating activities -
Noncash compensation expense 143,683 $ 43,434
Depreciation 79,417 96,010
Changes in -
Accounts receivable, net 79,714 (75,686)
Prepaid expenses and other current assets (7,863) 17,374
Unbilled revenue (612,609) (154,749)
Other assets 2,882 3,941
Accounts payable (41,608) (405,007)
Accrued compensation and payroll taxes (43,996) 20,233
Other accrued expenses 208,447 (151,617)
Deferred revenue and customer advances - 53,141
------------ -----------
Net cash used in operating activities (487,166) (1,234,407)
------------ -----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of equipment
(131,831) (12,755)
------------ -----------
Net cash provided by investing activities (131,831) (12,755)
------------ -----------
CASH FLOWS FROM FINANCING ACTIVITIES:
Principal payments on capital lease obligations (7,178) (7,995)
Options exercised for cash 11,251 -
------------ -----------
Net cash provided by (used in) financing activities 4,073 (7,995)
------------ -----------
Net decrease in cash
And cash equivalents (614,924) (1,255,157)
CASH AND CASH EQUIVALENTS, beginning of period 2,936,918 2,829,628
------------ -----------
CASH AND CASH EQUIVALENTS, end of period $ 2,321,994 $ 1,574,471
============ ===========
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION:
Cash paid during the period for -
Interest $ 660 $ 4,440
Income taxes $ 4,120 $ 23,125
Non cash investing activities -
Assets acquired under capital lease obligations $ - $ 37,255
Investment in restricted securities, at cost $ - $ 2,558,300
</TABLE>
See Notes to Consolidated Financial Statements
3
<PAGE>
K2 DESIGN, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
March 31, 2000
1 ORGANIZATION AND BUSINESS
K2 Design, Inc. ("K2" or the "Company") commenced operations on March 1, 1993 as
a partnership. In January 1995 the Partnership contributed its capital into a
newly formed corporation and elected S Corporation status.
Effective January 1, 1996, the Company was reorganized as a Delaware C
corporation having a wholly owned operating subsidiary incorporated in New York.
The Company is authorized to issue 9,000,000 shares of common stock, par value
$.01 per share, and 1,000,000 shares of preferred stock, par value $.01 per
share.
K2 is a strategic Internet services firm specializing in business consulting,
development and design related to digital communications.
2. BASIS OF PRESENTATION
The accompanying unaudited condensed consolidated financial statements have been
prepared by the Company and reflect all adjustments, consisting of only normal
recurring adjustments, which are, in the opinion of management, necessary for a
fair presentation of financial results for the three months ended March 31,
2000, in accordance with generally accepted accounting principles for interim
financial statements and pursuant to Form 10-QSB and Regulation S-B. Certain
information and footnote disclosures normally included in the Company's annual
audited consolidated financial statements have been condensed or omitted
pursuant to such rules and regulations.
The results of operations for the three months ended March 31, 2000 are not
necessarily indicative of the results of operations to be expected for a full
fiscal year. These interim condensed consolidated financial statements should be
read in conjunction with the audited consolidated financial statements for the
fiscal year ended December 31, 1999, which are included in the Company's Annual
Report on Form 10-KSB filed with the Securities and Exchange Commission.
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and revenues and expenses during the
reporting periods. Actual results may differ from those estimates.
3. NET LOSS PER SHARE OF COMMON STOCK
SFAS 128, "Earnings per Share," establishes standards for computing and
presenting earnings per share (EPS). The standard requires the presentation of
basic EPS and diluted EPS. Basic EPS is calculated by dividing income available
to common stockholders by the weighted average number of shares of common stock
outstanding during the period. Diluted EPS is calculated by dividing income
available to common stockholders by the weighted average number of shares of
common stock outstanding adjusted to reflect potentially dilutive securities.
4
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In accordance with SFAS 128, the following table reconciles net loss and share
amounts used to calculate basic and diluted loss per share:
<TABLE>
<CAPTION>
Three Months Ended
March 31,
2000 1999
---- ----
(unaudited)
<S> <C> <C>
Numerator: Net loss $ (295,233) $ (681,481)
Denominator: Weighted average number of common shares outstanding - basic 3,346,874 3,459,205
and diluted
Net loss per share - Basic and diluted $ (0.09)** $ (0.20)**
</TABLE>
**Excludes outstanding stock options as of March 31, 2000 and March 31, 1999, as
they are antidilutive.
The stockholders of the Company will be voting on an amendment to increase the
number of shares of common stock subject to stock options issuable under the
Company's 1997 Stock Incentive Plan at the Company's 2000 Annual Meeting of
Stockholders on June 1, 2000. If approved by the stockholders, 800,000
additional shares of common stock would be available for issuance under such
plan.
4. INVESTMENT IN SECURITIES
As of March 31, 2000, the Company held 110,000 shares of common stock of 24/7
Media Inc. These shares have been classified as "investments in securities
available for sale" as a result of the Company's ability and intent to sell such
shares in the near future. In accordance with SFAS No. 115, the shares are
stated at fair market value on the Company's March 31, 2000 consolidated balance
sheet. The unrealized holding gain is reflected as "other comprehensive income"
in the stockholders' equity section of the balance sheet, net of the related
"deferred tax liability."
The following disclosures are presented in accordance with SFAS No. 115:
Equity Securities:
Aggregate fair market value $4,345,000
Gross unrealized holding gain $2,912,825
The Company did not sell any shares of capital stock of 24/7 Media Inc. during
the quarter ended March 31, 2000.
5
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
The following presentation of management's discussion and analysis of the
Company's financial condition and results of operations should be read in
conjunction with the Company's Consolidated Financial Statements, the
accompanying notes thereto and other financial information appearing elsewhere
in this Report. This section and other parts of this Report contain
forward-looking statements that involve risks and uncertainties. The Company's
actual results may differ significantly from the results discussed in the
forward-looking statements. Readers are encouraged to review "Factors Affecting
Operating Results and Market Price of Stock" commencing on page 11 of the
Company's 1999 Annual Report on Form 10-KSB for a discussion of certain of these
risks and uncertainties.
RESULTS OF OPERATIONS
General
The Company works with clients to develop strategies for using new and emerging
technologies to help the clients build one-to-one relationships with their
customers, employees and vendors. Through the strategic and technical expertise,
media knowledge, and creative talent of the Company's team of employees, the
Company assists its clients in achieving a favorable return-on-investment from
digital channels of e-commerce, information, customer support, advertising and
entertainment. These channels include Web sites, transmission of broadband
content, intranets, extranets, online media, and wireless appliances.
The Company currently provides its clients with a range of services, including:
qualitative and quantitative research, usability labs to test graphical user
interfaces, navigation, functionality and systems, positioning studies for
online branding, strategic planning, e-commerce planning, business process
reengineering, online media planning and buying, proprietary media partnerships,
marketing strategies, Web design, creative services for online advertising
(e.g., banners, rich media, interstitials), technical strategies, requirements
specifications and programming.
Revenues are recognized on a percentage of completion basis. Provisions for any
estimated losses on uncompleted projects are made in the period in which such
losses are determinable. Most of the Company's revenues have been generated on a
fixed fee or cap fee basis. The Company also provides ongoing services to
certain customers.
While the Company considers the presentation of gross revenues to be
appropriate, as a result of the Company assuming the economic risk related to
reimbursable expenses, such as pass-through media costs, the Company has elected
to present net revenues in its statement of operations, because they are
representative of the Company's fee-based strategic and process consulting and
development services, which are at the core of the current business model. Net
revenues represents gross revenues, less reimbursable expenses, such as media
pass-through costs. The Company's operating results discussed herein are not
necessarily representative of future periods.
6
<PAGE>
<TABLE>
<CAPTION>
Percentage of Net Revenues for the Three
Months Ended March 31,
2000 1999
---- ----
(unaudited) (unaudited)
<S> <C> <C>
Net Revenues: 100.00% 100.0%
Operating Expenses:
Direct salaries and costs 59.4% 93.3%
Selling, general and administrative 57.6% 135.3%
Depreciation 5.3% 20.5%
Total operating expenses 122.3% 249.1%
Loss from continuing operations before interest (22.3)% (149.1)%
and other income, net, and income taxes
Interest and other income, net 2.8% 5.4%
Loss before income tax provision (19.5)% (143.7)%
Provision for income taxes 0.3% 2.00%
Net loss (19.8)% (145.7)%
</TABLE>
Revenues
Net revenues consist of gross revenues less pass-through expenses such as media
placement costs. Net revenues for the three months ended March 31, 2000 and 1999
were approximately $1,489,000 and $468,000, respectively, or an increase of
approximately 218%. This increase in net revenues was primarily attributable to
new clients during the three months ended March 31, 2000 as compared to the
three months ended March 31, 1999. Net revenues for the three months ended March
31, 2000 represented an increase of $152,000 or 11% over net revenues of
$1,337,000 for the three months ended December 31, 1999. These increases in both
year-to-year periods and sequential quarters reflect the acquisition of new
clients, such as Hewlett-Packard and WorldCom, and deepening engagements with
existing clients. During the three months ended March 31, 2000, the two largest
net revenue producing clients, accounted for approximately 60% and 27%,
respectively, of the Company's net revenues. During the three months ended March
31, 1999, the largest two net revenue producing clients accounted for
approximately 35% and 11%, respectively, of the Company's net revenues.
Accordingly, although the Company has increased its efforts to maintain and
enhance client relationships, loss of major clients without a comparable
replacement could cause quarterly results to fluctuate and could have a material
adverse effect on the Company's financial condition. See "Fluctuations in
Quarterly Operating Results."
Direct Salaries and Costs
Direct salaries and costs include all direct labor costs and other direct costs
related to project performance, such as independent contractors, supplies, and
printing and equipment costs, less any reimbursed expenses. As a percentage of
net revenues, direct salaries and costs decreased for the three months ended
March 31, 2000 as compared to the same period in 1999. This decrease is due to
the increased net revenues in the 2000 period as compared to the 1999 period,
partly offset by increased direct salaries and costs during the 2000 period.
Direct salaries and costs increased by approximately $449,000 to approximately
$885,000 for the 2000 quarter from approximately $436,000 for the 1999 quarter.
In the 2000 period, direct salaries and costs primarily consisted of
approximately $626,000 paid as direct salary costs and $207,000 paid as
independent contractor costs. In the 1999 period, direct salaries and costs
primarily consisted of approximately $417,000 paid as direct salary costs and
approximately $35,000 paid as independent contractor costs. Gross profit, which
is net revenues less direct salaries and costs, totaled $604,000 for the period
ending March 31, 2000 as compared to $31,000 for the same period in 1999,
resulting in a gross margin of 40.6% and 6.7%, respectively.
7
<PAGE>
Selling, General and Administrative Expenses
Selling, general and administrative expenses for the three months ended March
31, 2000 and 1999 were approximately $857,000 and $633,000, respectively, and
consisted primarily of labor costs, professional fees, occupancy costs, and
non-cash compensation expense and recruitment costs. The Company's selling,
general and administrative costs have increased due to increased compensation
costs, recruitment costs and non-cash compensation expense. Non-cash
compensation charges totalled $144,000 for the period ending March 31, 2000.
Depreciation
Depreciation expense was approximately $79,000 and $96,000 in the three months
ended March 31, 2000 and 1999, respectively, and related to depreciation of
equipment, furniture and fixtures, and leasehold improvements. The Company's
depreciation expenses in 2000 have decreased as a result of previous purchases
of computer and office equipment becoming fully depreciated.
Income Taxes
As of March 31, 2000, the Company had an accumulated deficit of $(907,000). The
provision for income taxes consists of minimum statutory taxes due.
Operating Loss
The operating loss for the three months ended March 31, 2000 was $333,000 as
compared to an operating loss of $697,000 for the three months ended March 31,
1999. Contributing to the operating loss for the three months ended March 31,
2000 were increases in direct labor and selling, general and administrative
costs, which include non-cash compensation charges of $144,000. However, the
operating loss for the three months ended March 31, 2000 represented a decrease
of $364,000 or 52% from the operating loss of $697,000 for the three months
ended March 31, 1999.
Fluctuations in Quarterly Operating Results
Quarterly revenues and operating results have fluctuated and will fluctuate as a
result of a variety of factors. These factors, some of which may be managed by
the Company and some of which are beyond the Company's control, include the
timing of the completion, material reduction or cancellation of major projects,
the loss of a major customer or the termination of a relationship with a channel
source, the timing of the receipt of new business, the timing of the hiring or
loss of personnel, changes in the pricing strategies and business focus of the
Company or its competitors, capital expenditures, operating expenses and other
costs relating to the expansion of operations, general economic conditions and
acceptance and use of the Internet.
8
<PAGE>
Liquidity and Capital Resources
The Company's cash balance of $2,322,000 at March 31, 2000, has decreased by
$615,000 or 21% as compared to the $2,937,000 cash balance at December 31, 1999.
This decrease is primarily due to a $613,000 increase in unbilled revenue at
March 31, 2000, compared to unbilled revenue at December 31, 1999. The increase
in unbilled revenue resulted from the delayed billing of one of the Company's
material clients due to internal review of the contract governing the services
provided to this client. The review process has been completed and the client
has been billed.
The Company is dependent on its current cash and investment securities, together
with cash generated by operations for working capital in order to be
competitive, to meet the increasing demands of service, quality and pricing and
for the expansion of its business. While the Company believes that its cash
position together with cash expected to be generated by operations will be
sufficient to finance its operations for at least one year, the Company may
nevertheless require future financing in order to satisfy its working capital
needs, and such financing may be unavailable or prohibitively expensive.*
Accordingly, the Company may not have the funds to relieve any liquidity
problems, should they arise, or to finance any expansion of its business.
Net cash used in the Company's operating activities was $487,000 for the three
months ended March 31, 2000 and related primarily to an increase in unbilled
revenue and decreases in accounts payable and accrued compensation and payroll
taxes, offset by an increase in other accrued expenses payable, as indicated in
the statement of cash flows.
For the three months ended March 31, 2000, the Company spent approximately
$132,000 on capital expenditures, consisting of computer equipment, furniture,
fixtures and leasehold improvements.
- --------
* This statement is a forward-looking statement reflecting current expectations.
There can be no assurance that the Company's actual future performance will meet
the Company's current expectations. See "Factors Affecting Operating results and
Market Price of Stock" contained in the Company's Annual Report on Form 10-KSB
for the fiscal year ended December 31, 1998 for a discussion of the risks and
uncertainties which may affect this statement.
9
<PAGE>
PART II
OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Exhibits:
Exhibit 10.1 - Employment contract of Gary W. Brown
Exhibit 10.2 - Restricted stock agreement of Gary W. Brown
Exhibit 10.3 - Amendments to employment contract of Matthew G. de Ganon
Exhibit 27.1 - Financial Data Schedule (Edgar filing only)
(b) Reports on Form 8-K:
The Company filed a Current Report on Form 8-K with the Securities and
Exchange Commission on April 28, 2000 reporting the election of Gary W.
Brown as a director and officer of the Company.
10
<PAGE>
SIGNATURES
In accordance with the requirements of the Exchange Act, the registrant has
caused this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
K2 DESIGN, INC.
Date: May 15, 2000 By: /s/ Lynn Fantom
--------------------------------------------
Lynn Fantom
Chief Executive Officer and President
By: /s/ Seth Bressman
--------------------------------------------
Seth Bressman
Chief Financial Officer
(Principal Financial and Accounting Officer)
11
<PAGE>
EXHIBIT 10.1
EMPLOYMENT AGREEMENT, dated as of April 14, 2000, between K2
Design, Inc., a company organized under the laws of the State of Delaware
("Company") and Gary W. Brown ("Executive").
WHEREAS, Executive desires to provide services to Company and
Company desires to retain the services of Executive;
WHEREAS, Company and Executive desire to formalize the terms
and conditions of Executive's employment with Company.
NOW, THEREFORE, Company and Executive hereby agree as follows:
1. Employment.
1.1 General. Company hereby employs Executive in the position
of Executive Vice President and Chief Operating Officer reporting directly to
the Chief Executive Officer of the Company. A description of Executive's duties
is attached hereto as Schedule A. Executive shall also serve as a member of the
Board of Directors of the Company.
1.2 Full-Time Position. Executive agrees that he will, at all
times loyally and conscientiously, perform all of the duties and obligations
required of and from him as Chief Operating Officer to the best of his ability,
pursuant to the express and implicit terms hereof, and to the reasonable
satisfaction of the Company. Executive further agrees that during the term of
his employment, he shall not render commercial or professional services of any
nature to any person or organization, whether or not for compensation, without
the prior written consent of the Company, which consent shall not be
unreasonably withheld, and he will not directly or indirectly engage in any
business that is competitive in any manner with the business of the Company.
Nothing in this Agreement will prevent Executive from owning securities of a
corporation whose stock is listed on a national stock exchange; provided,
however that Executive may only own up to one percent (1%) of the outstanding
equity securities of a corporation in competition with the Company. Executive
may also serve as a director to other companies which are not competitive with
the Company, and any charitable, political or other not-for-profit activity,
provided that such activities do not interfere with the performance of
Executive's duties to Company and in no event exceed twelve (12) business days
per year.
1.3 Location of Employment. Executive's principal place of
employment during his employment with Company shall be in New York, New York.
1.4 Term of Employment. Executive's employment by the Company
shall commence on April 14, 2000 and continue until March 31, 2002, unless
Executive's employment is otherwise terminated earlier by the Company or
Executive in accordance with Section 3 hereof (the "Employment Term"). This
Agreement may be renewed at such time and on such terms as the parties may
mutually agree in writing.
1.5 No Conflict with Prior Agreements. Executive represents
and warrants that his performance of all of the terms of this Agreement and as
an employee of the Company
<PAGE>
does not and will not breach any agreement or obligation he has with or to any
other party or entity, including without limitation any non-disclosure,
confidentiality, non-competition, no solicitation or invention assignment
agreements or obligations. Executive agrees to indemnify and hold the Company
harmless against loss, damage, liability or expense arising from any proven
breach of such representations or warranties.
2. Compensation and Benefits.
2.1 Salary. Company will pay to Executive during the term of
his employment under this Agreement, (i) a base salary at the annual rate of
$225,000 per annum ("Base Salary"), payable in accordance with the Company's
regular payroll practices, and (ii) additional compensation, if any, and
benefits hereinafter set forth in this Section 2.
2.2 Executive Benefits. During the Employment Term, Executive
shall also be entitled to the following benefits:
2.2.1 Expenses. Upon presentment of proper documentation and
receipts, Company will promptly reimburse Executive for expenses he reasonably
incurs in connection with the performance of his duties (including business
travel and entertainment expenses).
2.2.2 The Company Plans. Executive will be entitled to
participate in such employee benefit plans and programs as Company may from time
to time offer or provide to its most-senior executives, provided that nothing
herein shall give rise to any obligation on the part of the Company to adopt or
maintain any such plans or programs.
2.2.3 Stock Options. Upon commencement of employment,
Executive shall be issued pursuant to an agreement (the "Stock Option
Agreement") an incentive stock option (the "Option") to purchase 263,000 shares
of the Company's common stock, $0.01 par value per share ("Common Stock"),
pursuant to the Company's 1997 Stock Incentive Plan (the "Stock Incentive
Plan"). The exercise price for each share of Common Stock subject to the Option
shall be the fair market of the stock on the date of grant. The Options shall
vest over a period of two years as follows: (i) one-half on the first year
anniversary of the date of grant; and (ii) one-half on the second anniversary of
the date of grant.
2.2.4 Restricted Stock. Upon commencement of employment, the
Company shall grant to Executive 100,000 shares (the "Shares") of the Common
Stock of the Company ("Common Stock"). The Shares will be issued pursuant to a
stock restriction agreement between the Company and Executive (the "Stock
Restriction Agreement"). The Shares shall vest over a two (2) year period as
follows: (i) one-half on the first anniversary of the award; and (ii) one-half
on the second anniversary of the award.
2.2.5 Notwithstanding anything to the contrary in Section
10.1(b) of the Stock Incentive Plan, or any similar provisions of any other
stock plan or option plan, 100% of the Options and Shares provided for Executive
under this Agreement shall immediately vest in the event of an Approved
Transaction.
2
<PAGE>
2.3 Annual Bonus. Executive shall be eligible for a
discretionary bonus in the form of stock options, up to a maximum amount of
100,000 per year, based upon individual and Company performance.
3. Termination.
3.1 Termination With Cause or Resignation Without Good Reason.
3.1.1 Salary and Benefits. In the event Company terminates
Executive's employment with Cause or Executive resigns without Good Reason,
Executive shall be paid his Base Salary through the date of termination. He
shall not be entitled to any further compensation or benefits except as required
by law or the terms of any benefit plans.
3.1.2 Options/Shares. In the event Company terminates
Executive's employment with Cause or Executive resigns his employment without
Good Reason, Executive shall be entitled to all Options and Shares that have
vested as of the date of termination, but shall forfeit all unvested Options and
Shares.
3.2 Termination Without Cause or Resignation For Good Reason.
3.2.1 Termination Pay. In the event Executive's employment is
terminated by Company without Cause or Executive resigns for Good Reason,
Company will pay to Executive a termination payment in the sum of $225,000 to be
paid to Executive in twelve (12) equal installments in the twelve months
immediately following such termination.
3.2.2 Options. In the event Executive's employment is
terminated by Company without Cause or Executive resigns for Good Reason, 100%
of the unvested options shall vest on Executive's final date of employment. All
options must be exercised within one (1) year of the termination date.
3.2.3 Restricted Stock. In the event Executive's employment is
terminated by Company without Cause or Executive resigns for Good Reason, 100%
of the unvested Shares shall vest on Executive's final date of employment.
3.2.4 Release and Compliance with Obligations. In order to be
eligible for any payments, benefits or acceleration of vesting of Options or
restricted stock as set forth in Sections 3.2.1, 3.2.2 or 3.2.3, (i) Executive
must execute and deliver to Company a general release, in a form reasonably
satisfactory to Company, and (ii) as determined by the Company's Board of
Directors, must be and remain in compliance in all material respects with his
material obligations under this Agreement, including without limitation those
set forth in Section 5. In the event the Company's Board of Directors
determines, after a full investigation with notice to Executive, that Executive
has materially breached his material obligations hereunder, including those in
Section 5, any and all payments or benefits provided for in this Section shall
cease immediately.
3.3 Cause. For purposes of this Agreement, Cause shall mean
that the Board of Directors concludes, in good faith and after reasonable
investigation, that: (i) Executive has been convicted of a felony under the laws
of the United States or any state or political
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subdivision thereof; (ii) that Executive willfully engaged in conduct
constituting breach of a known fiduciary duty, willful misconduct or
recklessness relating to the Company or the performance of Executive's duties or
fraud; (iii) that Executive has willfully breached his non-compete, no-solicit
or confidentiality obligations in any material respect; (iv) that Executive
willfully failed to follow a proper directive of the Company within the scope of
Executive's duties (which shall be capable of being performed by Executive with
reasonable effort) after written notice referencing this subparagraph,
specifying the performance required and Executive's failure to perform within
thirty (30) days after such notice.
3.4 Good Reason. For purposes of this Agreement, Good Reason
shall mean (i) the failure of Company to pay Base Salary or additional
compensation or benefits hereunder in accordance with this Agreement, (ii) the
assignment to Executive without Executive's prior written consent of
responsibilities substantially inconsistent with his title or position, or (iii)
the material diminution of Executive's responsibilities or title or authority,
or (iv) the relocation of the Company to a location more than fifty (50) miles
from Manhattan, provided that before Executive can resign for Good Reason under
this Section 3.4, he must provide Company with written notice and a thirty (30)
day period in which to cure.
4. Approved Transaction.
4.1 In the event of an Approved Transaction, 100% of any
remaining unvested Options and Shares shall immediately vest. In accordance with
Section 2.2.5 of this Agreement, no Committee shall have the authority to
provide Executive with an alternative award in lieu of such Options and Shares
without the Executive's express written consent.
4.2 In the event Executive is terminated by the Company
without Cause or Executive resigns for Good Reason within one hundred eighty
(180) days following an Approved Transaction, he shall be entitled to the
greater of (i) the amount equal to his Base Salary for the remainder of the
Employment Term or (ii) $225,000, payable in full upon termination.
4.3 Release and Compliance with Obligations. In order to be
eligible for any acceleration of vesting of Options or Shares as set forth in
Section 4.1 or the cash benefit as set forth in Section 4.2, Executive must (i)
execute and deliver to Company a general release, in a form satisfactory to
Company, and (ii) as determined by the Board of Directors be and remain in full
compliance with his material obligations under this Agreement, including without
limitation those set forth in Section 5. In the event that the Board of
Directors determines after a full investigation, with notice to Executive, that
Executive has breached his material obligations under Section 5, any and all
payments or benefits provided for in this Section shall cease immediately.
4.4 Approved Transaction. For purposes of this Agreement, an
"Approved Transaction" shall mean (i) the approval of the stockholders of (A)
any tender offer, consolidation or merger of the Company, or binding share
exchange, pursuant to which shares of Common Stock would be changed or converted
into or exchanged for cash, securities or other property, other than any such
transaction which the common stockholders of the Company immediately prior to
such transaction have the same proportionate ownership of the Common
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Stock of, and voting power with respect to, the surviving corporation
immediately after such transaction, or (B) any tender offer, merger,
consolidation or binding share exchange to which the Company is a party as a
result of which the persons who are common stockholders of the Company
immediately prior thereto have less than a majority of the combined voting power
of the outstanding capital stock of the Company ordinarily (and apart from the
rights accruing under special circumstances) having the right to vote in the
election of directors immediately following such merger, consolidation or
binding share exchange, (ii) the adoption of any plan or proposal for the
liquidation or dissolution of the Company, or (iii) any sale, lease exchange or
other transfer (in one transaction or a series of related transactions) of all,
or substantially all, of the assets of the Company.
5. Confidentiality; Nonsolicitation; Non-Compete; Confidential
Information and Inventions.
As a result of Executive's position with the Company,
Executive will have access to significant Confidential Information (as defined
below) of the Company. In addition, as an inducement for Company, Executive has
agreed to impose certain restrictions on his ability to compete with the
business of the Company. Executive understands and acknowledges that these
restrictions are fair and reasonable given, among other things, the national
market for the Company's services and technology. Based on the foregoing, and in
consideration thereof and of the payments to be made to Executive by Company
pursuant to this Agreement, Executive hereby agrees to the following provisions
of this Section 5:
5.1 Confidential Information and Inventions Defined. The
Company possesses and will in the future possess information that has been, or
will be, created, discovered or developed, or has become or will become
otherwise known to the Company (including, without limitation, information
pertaining to the business of the Company created, discovered, developed or made
known by or to Executive during the period of or arising out of Executive's
employment by the Company), and/or in which property rights have been or will be
assigned or otherwise conveyed to the Company, which information has or will
have actual or potential economic value in the business in which the Company is
engaged. All of the aforementioned information is hereinafter called
"Confidential Information." By way of illustration, but not limitation,
Confidential Information includes (a) trade secrets, inventions, ideas,
processes, formulae, data, know-how, source and object codes, programs, other
works of authorship, improvements, techniques, discoveries, developments and
designs (hereinafter collectively referred to as "Inventions") and (b)
information regarding plans for research, development, new products or product
improvements, marketing and selling, business plans, strategies, budgets,
unpublished financial statements, forecasts, licenses, prices and costs,
suppliers, customers and information regarding the skills, identity or
compensation of other employees of the Company. Confidential Information does
not include any of the foregoing items which have become publicly known and made
generally available through no wrongful act of Executive or of others who were
under confidentiality obligations as to the item or items involved. Likewise,
Confidential Information shall not include information known to Executive prior
to the commencement of his term as a director of the Company.
5.2 Assignment and Nondisclosure of Confidential Information.
All Confidential Information shall be the sole property of the Company and its
assigns, and the
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Company and its assigns shall be the sole owner of all patents, copyrights,
trademarks and other rights in connection therewith. Executive hereby assigns to
the Company any rights Executive may have or acquire as a result of his
employment in all Confidential Information. At all times, both during
Executive's employment by the Company and after its termination, Executive will
not acquire any Confidential Information by improper means, Executive will keep
in confidence and trust all Confidential Information which Executive may
acquire, and Executive will not use or disclose any such Confidential
Information or anything relating to it without the written consent of the
Company, except as may be necessary in the ordinary course of performing
Executive's duties as an employee of the Company.
5.3 Return of Confidential Information. In the event of the
termination of Executive's employment by Executive or by the Company for any
reason, Executive will deliver to the Company all documents and data of any
nature pertaining to Executive's work with the Company and will not take with
him any documents or data of any description or any reproduction of any
description containing or pertaining to any Confidential Information.
5.4 Disclosure of Inventions. Executive will promptly disclose
to the Company, or any persons designated by it, all Inventions whether or not
patentable or copyrightable, made, conceived, reduced to practice, developed,
originated or learned by Executive, either alone or jointly with others, either:
(a) during the period of Executive's employment which are
directly or indirectly related to or useful in the business or industry of the
Company or the research or development of the Company, or result from tasks
assigned to Executive by the Company or are otherwise within the scope of
Executive's responsibilities with the Company, or result from use of facilities,
equipment, supplies or premises owned, leased or contracted for by the Company
or use or knowledge of Confidential Information; or
(b) within six (6) months after termination of Executive's
employment which are directly or indirectly conceived as a result of, or are
suggested or attributable to, work done by Executive during such employment or
result from use or knowledge of Confidential Information.
5.5 Works Made for Hire. Executive acknowledges that all
original works of authorship that are made by Executive (solely or jointly with
others) within the scope of Executive's employment and which are protectable by
copyright are "works made for hire," as that term is defined in the United
States Copyright Act (17 U.S.C., Section 101).
5.6 Assignment of Inventions. Executive agrees that all
Inventions shall be the sole property of the Company and its assigns, and the
Company and its assigns shall be the sole owner of all patents and other rights
in connection therewith. Executive hereby assigns to the Company any rights
Executive may have or acquire in all Inventions. Executive further agrees as to
all Inventions to reasonably cooperate with the Company (but at the Company's
expense) in connection with the Company's obtaining and from time to time
enforcing patents, copyrights, trademarks and other rights and protections
relating to the Inventions in any and all countries, and to that end Executive
will execute all documents for use in applying for and obtaining such patents,
copyrights, trademarks, and other rights and protections and enforcing
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the same, as the Company may reasonably request, together with any assignments
thereof to the Company or persons designated by it. Executive's obligation to
assist the Company in obtaining and enforcing patents, copyrights, trademarks
and other rights and protections relating to the Inventions in any and all
countries shall continue beyond the termination of Executive's employment, but
the Company shall compensate Executive at a reasonable rate after such
termination for time actually spent by Executive at the Company's request on
such assistance. In the event the Company is unable, after reasonable effort, to
secure Executive's signature on any document or documents needed to apply for or
prosecute any patent, copyright, or other right or protection relating to an
Invention, for any reason whatsoever, Executive hereby irrevocably designates
and appoints the Company and its duly authorized officers and agents as
Executive's agent and attorney-in-fact to act for and on Executive's behalf to
execute and file any such application or applications and to do all other
lawfully permitted acts to further the prosecution and issuance of patents,
copyrights, or similar protections thereon with the same legal force and effect
as if executed by Executive. Executive hereby waives and quitclaims to the
Company any and all claims, of any nature whatsoever, which Executive now or may
hereafter have for infringement of any Confidential Rights assigned hereunder to
the Company.
5.7 Former Employer Information. Executive represents that his
performance of all terms of this Agreement as an employee of the Company has not
breached and will not breach any agreement to keep in confidence proprietary
information, knowledge or data acquired by Executive in confidence or trust
prior or subsequent to the commencement of his employment with the Company, and
Executive will not disclose to the Company, or induce the Company to use, any
inventions, confidential or proprietary information or material belonging to any
previous employer or any other party.
5.8 Third Party Information. Executive recognizes that the
Company has received and in the future will receive confidential or proprietary
information from third parties, including without limitation, customers and
prospective customers, subject to a duty on the Company's part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. Executive agrees to hold all such confidential or proprietary
information in the strictest confidence and not to disclose it to any person,
firm or corporation or to use it except in connection with carrying out
Executive's work for the Company consistent with the Company's agreement with
such third party.
5.9 Non-Compete.
(a) Executive acknowledges and recognizes the highly
competitive nature of the Company's business, that access to the Company's
confidential records and Confidential Information and his substantial contacts
with existing and prospective customers and clients of the Company occurring in
the course of and as a result of his employment with the Company renders him
special and unique within the Company's industry, and that he will have the
opportunity to develop substantial relationships with existing and prospective
customers of the Company during the course of and as a result of his employment
with the Company. In light of the foregoing, during the term of Executive's
employment with the Company and for a period of twelve (12) months after the
date of the termination of his employment (the "Restricted Period"), Executive
shall not, directly or indirectly, individually or on behalf of any person,
company, enterprise or entity not now parties to this Agreement, or as a sole
proprietor, partner,
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stockholder, director, officer, principal, agent, executive, or in any other
capacity or relationship, engage in any business or employment, or aid or
endeavor to assist any person, business, enterprise or legal entity, which is
engaged or is seeking to engage in the Business (a "Competitor"). For purposes
of this Agreement, "Business" shall mean a professional services firm providing
consulting, design and systems integration related to digital channels.
Executive, however, may accept employment with a Competitor the business of
which is diversified provided that (i) Executive will not, directly or
indirectly, render services or assistance to any part of the Competitor that is
in any way engaged in the Business of the Company; and (ii) the Company shall
receive, prior to Executive rendering services to or assisting such Competitor,
written assurances reasonably satisfactory by the Company from Executive and the
Competitor that Executive will not, directly or indirectly, render services or
assistance to any part of the Competitor that is in any way engaged in the
Business of the Company. For purposes of this Section 5.9(a) only, the
Restricted Period shall be reduced to a period of six (6) months following
termination of employment in the event Executive resigns for Good Reason.
(b) During the Restricted Period, whether such termination is
voluntary or involuntary, Executive shall not, without the prior written consent
of the Company, on behalf of himself or on behalf of any other person, business,
enterprise or entity, (i) directly or indirectly solicit, divert or encourage
any of the employees, agents, consultants or representatives to terminate his,
her or its relationship with the Company, or hire any such employee, consultant
or representative so solicited or encouraged; (ii) directly or indirectly
solicit or encourage any of the employees, agents, consultants or
representatives of the Company to become employees, agents, representatives or
consultants of another business, enterprise or entity; (iii) directly or
indirectly on behalf of a Competitor solicit, divert or appropriate or attempt
to solicit, divert or appropriate any customers, clients, vendors or
distributors of the Company who were (x) customers, clients, vendors or
distributors of the Company at the time of the termination of Executive's
employment from the Company or during the one (1) year period prior to the
termination of Executive's employment with the Company and with whom Executive
had contact during his employment with the Company or about whom Executive
possessed Confidential Information, or (y) any prospective customers, clients,
vendors or distributors at the time of Executive's termination of employment
with respect to which the Company has developed or made a sales presentation (or
similar offering of services) within the one (1) year period prior to the
termination of Executive's employment with the Company and with whom Executive
had contact during the period of his employment with the Company or about whom
Executive possessed Confidential Information.
(c) Executive recognizes and acknowledges that the
restrictions and limitations set forth in this Agreement are legitimate and fair
in light of his access to Confidential Information, his substantial contacts
with customers of the Company and the Company's need to develop and market its
services and products. Executive further acknowledges that the customers of the
Company are located, or may be located, throughout the world and that a business
competitive with the Company may be carried on anywhere as a result of the
unique use of Internet, telephonic, technologic and other advanced
communications techniques. Therefore, Executive acknowledges that the
geographical application of the provisions and restrictions contained in this
Agreement are reasonable under the circumstances. Executive further acknowledges
that: (i) in the event his employment with the Company terminates for any
reason, he will be able to earn a livelihood without violating the foregoing
restrictions and (ii) his ability
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to earn a livelihood without violating such restrictions is a material condition
to his employment with the Company.
5.10 Injunctive Relief. Executive acknowledges and agrees that
(a) Company will be irreparably injured in the event of a breach by Executive of
any of his obligations under this Section 5; (b) monetary damages will not be an
adequate remedy for any such breach; (c) Company will be entitled to injunctive
relief, in addition to any other remedy which it may have, in the event of any
such breach.
6. Miscellaneous Provisions.
6.1 Severability. If in any jurisdiction any term or provision
hereof is determined to be invalid or unenforceable, (a) the remaining terms and
provisions hereof shall be unimpaired, (b) any such invalidity or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction, and (c) the invalid or
unenforceable term or provision shall, for purposes of such jurisdiction, be
deemed replaced by a term or provision that is valid and enforce-able and that
comes closest to expressing the intention of the invalid or unenforceable term
or provision.
6.2 Execution in Counterparts. This Agreement may be executed
in one or more counterparts, and by the different parties hereto in separate
counter-parts, each of which shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement (and all signatures
need not appear on any one counterpart), and this Agreement shall become
effective when one or more counterparts has been signed by each of the parties
hereto and delivered to each of the other parties hereto.
6.3 Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed duly given when
delivered by hand, or when delivered if mailed by registered or certified mail
or private courier service, postage prepaid, return receipt re-quested or via
facsimile (with written confirmation of receipt) as follows:
If to the Company, to:
K2 Design, Inc.
30 Broad Street
New York, New York 10004
Attention: Lynn Fantom
Telefax No.: (212) 301-8801
Copy to:
Brown Raysman Millstein Felder & Steiner LLP
120 West 45th Street
New York, New York 10036
Attention: Catherine McGrath
Telefax No.: (212)840-2429
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If to Executive, to:
Gary W. Brown
69 Sun Valley Road
Ramsey, New Jersey 07446
Copy to:
Kaye, Scholer, Fierman, Hays & Handler, LLP
425 Park Avenue
New York, New York 10022
Attention: Lawrence Darby III
or to such other address(es) as a party hereto shall have designated by like
notice to the other parties hereto.
6.4 Amendment. No provision of this Agreement may be modified,
amended, waived or discharged in any manner except by a written instrument
executed by Company and Executive.
6.5 Entire Agreement. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof, and
supersedes all prior agreements and understandings of the parties hereto, oral
or written, with respect to the subject matter hereof and Executive acknowledges
and agrees that he is owed no additional compensation other than as set forth in
this Agreement.
6.6 Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be wholly performed therein without regard to its
conflicts or choice of law provisions.
6.7 Headings. The headings contained herein are for the sole
purpose of convenience of reference, and shall not in any way limit or affect
the meaning or interpretation of any of the terms or provisions of this
Agreement.
6.8 Binding Effect; Successors and Assigns. Executive may not
delegate his duties or assign his hereunder. This Agreement will inure to the
benefit of, and be binding upon, the parties hereto and their respective heirs,
legal representatives, successors and permitted as-signs.
6.9 Waiver, etc. The failure of either of the parties hereto
to at any time enforce any of the provisions of this Agreement shall not be
deemed or construed to be a waiver of any such provision, nor to in any way
affect the validity of this Agreement or any provision hereof or the right of
either of the parties hereto to thereafter enforce each and every provision of
this Agreement. No waiver of any breach of any of the provisions of this
Agreement shall be effective unless set forth in a written instrument executed
by the party against whom or which enforcement of such waiver is sought, and no
waiver of any such breach shall be construed or deemed to be a waiver of any
other or subsequent breach.
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6.10 Arbitration. Except as provided in Section 5 hereof, any
dispute arising out or relating to this Agreement shall be resolved by
arbitration before one arbitrator under the Employment Dispute Rules of the
American Arbitration Association. The arbitrator shall not have the authority to
modify, change or refuse to enforce the terms of this Agreement. Nothing in this
Section 6.10 shall limit the right of Company to go to court to obtain
injunctive relief for violation of Section 5 hereof.
6.11 Continuing Effect. Where the context of this Agreement
requires, the respective rights and obligations of the parties shall survive any
termination or expiration of the term of this Agreement.
IN WITNESS WHEREOF, this Employment Agreement has been
executed and delivered by the parties hereto as of the date first above written.
K2, INC.
By: /s/ Lynn Fantom
--------------------
Name: Lynn Fantom
Title: President
EXECUTIVE
/s/ Gary W. Brown
-----------------------
Gary W. Brown
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Schedule A
CHIEF OPERATING OFFICER
Position Overview and Goals for 2000
Executive Vice President and Chief Operating Officer, Member of the Board of
Directors. This senior member of the management team reports directly to the
Chief Executive Officer and is responsible for finance and accounting, investor
relations, M&A, legal and administration.
The COO acts as chief representative to the investment community.
2000 Goals
o Work closely with the Executive Chairman and CEO to extend new
K2 positioning to the investment community.
o Develop strategies related to investor relations; establish
and lead proactive communications; develop appropriate
pitchbooks.
o Achieve demonstrable progress in obtaining analyst coverage of
the firm
o Anticipate and manage all inquiries to K2 from shareholders
and the investment community; become primary IR voice for
firm.
The COO is responsible for implementation of strategic alliances and mergers &
acquisitions.
2000 Goals
o Work closely with the Executive Chairman and CEO to develop
firm's plan for M&A, playing a key role in evaluating
potential partners o Play a lead role in merger negotiations
o Oversee merger integration planning and implementation
The COO raises capital to finance and grow the company's operations and plays a
key role in corporate development.
2000 Goals
o Develop capital plan to support accelerated growth strategy.
o Seek sources of new capital, assess and implement on
accelerated timetable.
The COO directs management of K2's cash and investment portfolios.
2000 Goals
o Assess current brokers and financial relationships and
strategies, implementing necessary changes.
o Direct adjustments in current asset allocation, particularly
24/7 investment position.
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Schedule A
The COO oversees finance, supervising the Chief Financial Officer and the
accounting staff.
Direct Report: Chief Financial Officer
2000 Goals
o Enhance operations to ensure monthly revenue projections and
variance reporting of revenues and costs.
o Enhance proactive management of financial reporting to comply
with all regulations, to ensure fair and accurate competitive
positioning and to represent the public entity accurately to
shareholders.
o Ensure K2 has the best partnerships with law firms and
accounting firms for these functions.
o Evaluate current staff and structure, implementing appropriate
changes.
The COO oversees operations, supervising the Director of Operations and all
operations staff, including human resources, office administrations and systems
administration.
Direct Report: VP, Director of Operations
2000 Goals
o Spearhead integration of new operations, including facilities,
common financial reporting, human resources policies and
benefits.
o Assess capacity for growth, maintaining a lean SG&A.
o Oversee assessment of growth potential within current
facilities and management of facilities planning.
o Enhance K2 profitability through intensified improvement of
systems and procedures, including overall company record
keeping, intranet for knowledge management, time utilization
analysis, and recruiting.
o Oversee the Director of Operations in development of improved
master client contracts
o Oversee and support the Director of Operations in the
improvement of human resources function, including management
contracts, timely performance evaluations, evaluation of staff
compensation, analysis of exit interviews and overall turnover
trends, and assessment of benefits package (including Stock
Incentive Plans).
o Lead assessment and development of all company operational
policies, as well as communication of standard operating
procedures.
o Evaluate current staff and structure
The COO may be called upon from time to time to assist in the execution of other
tasks and assignments necessary to fulfill his responsibilities.
<PAGE>
EXHIBIT 10.2
K2 DESIGN, INC. 1997 STOCK
INCENTIVE PLAN
NOTICE OF RESTRICTED STOCK AWARD
Gary W. Brown (the "Common Holder") has been granted restricted shares
of Common Stock of K2 Design, Inc. (the "Company') on the following terms:
Name of Recipient: Gary W. Brown
Total Number of Shares Granted: 100,000
Fair Market Value per Share: $5.00
Total Fair Market Value of Award: $500,000
Date of Grant: April 14, 2000
Vesting Commencement Date: April 14, 2000
By Common Holder's signature and the signature of the Company's representative
below, Common Holder and the Company agree that the shares are granted under and
governed by the terms and conditions of the 1997 K2 Design, Inc. Stock Incentive
Plan and the Restricted Stock Agreement, both of which are attached to and made
a part of this document.
COMMON HOLDER: K2 DESIGN, INC.
/s/ Gary Brown By: /s/ Lynn Fantom
- --------------------------
Title: President
- --------------------------
(Print Name)
<PAGE>
K2 DESIGN, INC. 1997 STOCK
INCENTIVE PLAN
RESTRICTED STOCK AGREEMENT
RECITALS
WHEREAS, Common Holder has entered into an Employment Agreement with
the Company, dated as of April 14, 2000 (the "Employment Agreement");
WHEREAS, pursuant to the Employment Agreement, the Company will grant
to Common Holder 100,000 shares of the Common Stock of the Company (as further
defined below, the "Shares"), subject to the vesting requirements and other
terms and conditions set forth herein; and
WHEREAS, in connection with the grant of the Shares, the Common Holder
has agreed to enter into this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein, the parties hereto agree as follows:
1. Definitions.
(a) "Approved Transaction" shall have the meaning assigned to
such term in the Employment Agreement.
(b) "Cause" shall have the meaning assigned to such term in
the Employment Agreement.
(c) "Common Stock" shall mean K2 Design, Inc.'s Common Stock.
(d) "Good Reason" shall have the meaning assigned to such term
in the Employment Agreement.
(e) "Shares" shall mean the 100,000 shares of Common Stock
awarded to the Common Holder pursuant to the Employment Agreement and the terms
and conditions of this Agreement. For purposes of Section 4, "Shares" shall
additionally include any shares of the Company's Common Stock subsequently
acquired by the Common Holder due to any stock dividend or liquidating dividend
of cash and/or property, stock split or other change in the character or amount
of any of the outstanding securities of the Company.
<PAGE>
2. Payment for Shares.
No payment from Common Holder is required for the Shares.
3. Vesting.
(a) As of the date of this Agreement, none of the Shares shall
be vested and all of the Shares shall be unvested. Any of the Shares which at
any point in time are vested pursuant to this Section 3 are referred to herein
as "Vested Shares" and any of the Shares which at any point in time have not yet
vested are referred to herein as "Unvested Shares" or "Restricted Shares." The
Restricted Shares shall vest, subject to Common Holder's continued employment by
the Company, according to the terms of Section 2.2.4 of the Employment
Agreement.
(b) Notwithstanding the vesting schedule in Section 3(a), in
the event Common Holder's employment is terminated by the Company without Cause
or by Common Holder for Good Reason, all of the Restricted Shares shall vest on
Common Holder's final date of employment.
(c) Notwithstanding the vesting schedule in Section 3(a), in
the event of an Approved Transaction, all of the Restricted Shares shall
immediately vest unless otherwise negotiated by the buyer to the mutual
satisfaction of Common Holder and the buyer.
4. Shares Restricted
In addition to any other limitation on transfer created by applicable
securities laws, Common Holder shall not sell, assign, encumber, transfer,
pledge or otherwise dispose of (collectively, "Transfer") any Restricted Shares
or any interest in any of the Restricted Shares, except as provided in the next
sentence. With the consent of the Board of Directors of the Company, Common
Holder may transfer Restricted Shares to his spouse, children or grandchildren
or to a trust established by Common Holder for the benefit of Common Holder or
Common Holder's spouse, children or grandchildren. A transferee of Restricted
Stock must agree in writing on a form prescribed by the Company to be bound by
all provisions of this Agreement.
5. Forfeiture.
In the event Common Holder's employment is terminated pursuant to 3.1
of the Employment Agreement for Cause or for Executive's resignation without
Good Reason, then the Shares shall be forfeited to the extent that they have not
vested before the termination date and do not vest as a result of the
termination. Forfeited Restricted Shares shall immediately revert to the
Company. Common holder receives no payment for Restricted Shares that are
forfeited.
<PAGE>
6. Stock Certificates.
The Restricted Shares will be held by the Company for the benefit of
Common Holder. After Shares have vested, a stock certificate for those shares
will be released to Common Holder.
7. Voting Rights.
The Restricted Shares shall not carry voting rights.
8. Withholding Taxes.
No stock certificates will be released to Common Holder unless Common
Holder has made acceptable arrangements to pay any withholding taxes that may be
due as a result of this award or the vesting of any of the Shares. These
arrangements may include withholding Shares that otherwise would be released to
Common Holder when they vest. These arrangements may also include surrendering
shares of Company stock already owned by Common Holder. The fair market value of
the shares so surrendered, determined as of the date when taxes otherwise would
have been withheld in cash, will be applied as a credit against the withholding
taxes.
9. Restrictions on Resale.
By signing this Agreement, Common Holder agrees not to sell any Shares
at a time when applicable laws or Company policies prohibit a sale. This
restriction will apply as long as Common Holder is an employee, consultant or
director of the Company or a subsidiary of the Company.
10. Adjustments.
In the event of a stock split, a stock dividend or a similar change in
Company stock, the number of Restricted Shares that remain subject to forfeiture
will be adjusted accordingly.
11. Applicable Law.
This Agreement will be interpreted and enforced under the laws of the
State of Delaware (without regard to their choice-of-law provisions).
12. The Plan and Other Agreements.
The text of the K2 Design, Inc. 1997 Stock Incentive Plan is
incorporated in this Agreement by reference. This Agreement, the Plan and the
Employment Agreement constitute the entire understanding between the Company and
Common Holder regarding the award of Shares. Any prior agreements, commitments
or negotiations concerning this award of Shares are
<PAGE>
superceded. This Agreement may be amended only by another written agreement,
signed by both parties.
BY SIGNING THE COVER SHEET OF THIS AGREEMENT, COMMON HOLDER AGREES TO
ALL OF THE TERMS AND CONDITIONS DESCRIBED ABOVE IN THE PLAN.
<PAGE>
EXHIBIT 10.3
www.k2design.com K2 Design, Inc. A FULL SERVICE INTERACTIVE AGENCY
April 14, 2000
Mr. Matthew de Ganon
500 East 87 St. 11G
New York, NY 10128
Re: Terms of Employment
Dear Matt,
On behalf of the Compensation Committee of the Board of Directors of K2 Design,
Inc. (the "Company"), I am pleased to provide this letter to confirm the
modification to the terms of the extension of your Employment Agreement with the
Company, dated as of July 16, 1996 (the "Agreement") as follows:
Effective immediately, your base salary will increase to $250,000.
Sincerely,
Lynn Fantom
President and CEO
30 broad street 16th floor
new york, ny 10004
212.301.8800 fax: 212.301.8801
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-2000
<PERIOD-END> MAR-31-2000
<CASH> 2,321,994
<SECURITIES> 0
<RECEIVABLES> 945,850
<ALLOWANCES> 100,000
<INVENTORY> 0
<CURRENT-ASSETS> 8,881,901
<PP&E> 1,456,041
<DEPRECIATION> 815,573
<TOTAL-ASSETS> 9,674,330
<CURRENT-LIABILITIES> 1,353,226
<BONDS> 0
0
0
<COMMON> 37,735
<OTHER-SE> 0
<TOTAL-LIABILITY-AND-EQUITY> 9,674,330
<SALES> 0
<TOTAL-REVENUES> 1,933,010
<CGS> 444,162
<TOTAL-COSTS> 2,265,757
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 660
<INCOME-PRETAX> (291,113)
<INCOME-TAX> 4,120
<INCOME-CONTINUING> (295,233)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (295,233)
<EPS-BASIC> (0.09)
<EPS-DILUTED> (0.09)
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