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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): June 12, 1997
NETLIVE COMMUNICATIONS, INC.
(Exact name of Registrant as Specified in its Charter)
Delaware 0-28728 13-384-8652
(State or other jurisdiction (Commission (IRS Employer
of incorporation File No.) Identification No.)
584 Broadway, New York, New York 10012
(Address of Principal Executive Office)
Registrant's telephone number, including area code: (212) 343-7082
Not Applicable
(Former name or former address, if changed since last report)
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ITEM 5. OTHER EVENTS.
On June 12, 1997, NetLive Communications, Inc. (the "Company"), May
Davis Group, Inc. ("May Davis"), Owen May, Dibo Attar, Dennis Sal and seven
investment funds as to which Mr. Attar acts as advisors (the "Funds", and
together with May Davis and Messrs. May, Attar, and Sal, collectively, the
"Subscribing Parties") entered into a certain Settlement and Voting Agreement
(the "Voting Agreement") to, among other things, resolve certain corporate
governance issues relating to the Company. On June 12, 1997, the Company also
entered into a letter agreement with Gary Rogers, whereby Mr. Rogers agreed to
be bound by the provisions of the Voting Agreement and the Company agreed to
extend the provisions of its release of the Subscribing Parties under the Voting
Agreement to Mr. Rogers.
Pursuant to the Voting Agreement, the Subscribing Parties agreed to
certain voting and other provisions for the three year term thereof (the "Term")
relating to the 315,000 shares of the Company's common stock currently held, and
the voting securities of the Company owned from time to time, by the Subscribing
Parties for their own accounts, by their immediate families, by entities they
control and certain others (collectively, the "Subscribing Party Voting
Securities").
The parties agreed to promptly increase the size of the Company's Board
of Directors (the "Board") to seven, and to fill the two vacancies thereby
created with a designee of the Subscribing Parties (the "Subscribing Party
Designee") and a designee (the "Class III Designee") selected by the Class III
directors, namely, Michael Kharitonov, Andrew J. Schwartz, and Jeffrey Wolf, and
that such designees will be nominated by the Board for election to the Board at
the 1997 annual meeting of the Company's stockholders (the "1997 Annual
Meeting"). They also agreed that thereafter, for the balance of the Term, the
Board will include as nominees for election to the Board as Class I directors a
designee of the Subscribing Parties reasonably acceptable to the Board and an
independent designee of the Class III directors reasonably acceptable to the
Board and to May Davis.
At the 1997 Annual Meeting, the Subscribing Parties agreed to vote, or
cause to be voted, the Subscribing Party Voting Securities as follows:
(a) to amend the Company's By-laws to delete Article III Sections
1(a) and 1(c) thereof relating to the ability of the Company's
Board of Directors (the "Board") to fix the number of
directors and to select the Chairman of the Board;
(b) to amend the Company's Certificate of Incorporation to add new
Articles IX, X and XI thereof to (i) fix the number of
directors at seven, (ii) authorize the classification of the
Board into three classes with terms expiring on the first,
second and third annual meeting of stockholders following
adoption of such amendment, and (iii) specify how Board
vacancies in the various classes will be filled following the
1997 Annual Meeting; and
Page 2 of 35
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(c) subject to certain contingencies, to vote in favor of (i)
all of the Board's nominees to the Board to the classes
proposed by the Board (Class I: the Class III Designee and
the Subscribing Party Designee; Class II: Ross S. Glatzer
and John E. Meier; and Class III: Michael Kharitonov, Andrew
J. Schwartz, and Jeffrey Wolf ) and to continue to vote in
favor of all of the Board's nominees at each successive
annual meeting of stockholders during the Term, and (ii)
Michael Kharitonov as Chairman of the Board.
The Subscribing Parties also agreed as follows:
(a) to cause May Davis to withdraw its demand, dated February
27, 1997, for a list of the Company's stockholders;
(b) to refrain from soliciting proxies or consents, or initiating
any action, in opposition to any matter recommended by the
Board, or to advise, encourage or influence any person or
entity to initiate any stockholder proposal;
(c) to refrain from depositing any Subscribing Party Voting
Securities in a voting trust or be subject to any voting
arrangement or agreement except as expressly permitted;
(d) to refrain from joining a group for the purpose of
acquiring, holding, voting or disposing of any of the
Company's securities, except as already disclosed; and
(e) to refrain from transferring any Subscribing Party Voting
Securities until after the 1997 Annual Meeting, including any
adjournments thereof.
May Davis, the underwriter of the Company's initial public
offering, consented to the Company's filing, on or after May 14, 1998, to one or
more registration statements on Form S-8 to register the offer and sale of up to
1,360,000 shares of Common Stock issuable upon exercise of the Company's stock
options, any employee benefit program and/or the Company's Performance Share
Program Plan (the "Plan"). The Company agreed that the currently unawarded
194,000 shares of Common Stock held by the trust established under the Plan (the
"Trust") would be awarded only in compensating a new Chief Executive Officer and
other senior management of the Company, excluding Michael Kharitonov, Andrew
Schwartz, Jeffrey Wolf, Scott Wolf and Laurence Rosen. The Company also agreed
to use reasonable efforts to cause the Trust to return any unawarded shares of
Common Stock if certain conditions were not satisfied by June 30, 1998.
In addition, the Subscribing Parties and the Company (i)
released each other and various affiliated persons from any claims relating to
prior actions or omissions (including, without limitation, any relating to the
Plan, the Trust and a certain proposal made by Zodiac Group, Inc. to the
Company) and (ii) agreed not to sue each other and various affiliated persons
Page 3 of 35
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relating to any prior actions or omissions (including, without limitation, any
relating to the Plan, the Trust and such proposal).
On June 12, 1997 (the "Effective Date"), a certain Severance
Agreement (the "Severance Agreement") and various related documents including a
certain Consulting Agreement (the "Consulting Agreement"), between the Company
and Laurence Rosen, became effective. On the Effective Date, Mr. Rosen resigned
as President, Chief Executive Officer, a member of the Board of Directors and
all other positions with the Company. Concurrently, the Company paid Mr. Rosen
$147,500. Under the Severance Agreement, the Company and Mr. Rosen exchanged
mutual releases and made provision for certain of Mr. Rosen's stock options and
benefits. Mr. Rosen also agreed to a provision prohibiting him from competing
with the Company and prohibiting him from entering into an employment
relationship with any current employee of the Company. Under the Consulting
Agreement, Mr. Rosen is to serve as a consultant to the Company from the
Effective Date through September 1, 1997 and be compensated at the rate of $500
per month.
The foregoing summaries of certain provisions of the Voting Agreement,
the Severance Agreement and the Consulting Agreement are qualified in their
entirety by reference to the full text thereof, copies of which are attached as
exhibits hereto, and which are hereby incorporated by reference herein.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(a) Financial Statements
None
(b) Pro Forma Financial Information
None
(c) Exhibits
10.9 Settlement and Voting Agreement, dated as of June
12, 1997, among the Company, May Davis Group, Inc.
et al.
10.10 Letter agreement, dated as of June 12, 1997,
between the Company and Gary Rogers
10.11 Severance Agreement, dated as of June 12, 1997,
between the Company and Laurence M. Rosen and
exhibits thereto including the Consulting Agreement.
The other Items set forth in Form 8-K are not applicable and
have been omitted.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
NETLIVE COMMUNICATIONS, INC.
Dated: June 27, 1997 By: /s/ Michael Kharitonov
--------------------------------
Signature
Name: Michael Kharitonov
Title: Chief Executive Officer and
President
Page 5 of 35
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EXHIBIT INDEX
TO FORM 8-K
-----------
Exhibit Description Page No.
- ------- ----------- --------
10.9 Settlement and Voting Agreement, dated as of June 12, 1997, 7
among the Company, May Davis Group, Inc. et al.
10.10 Letter agreement, dated as of June 12, 1997, between the 22
Company and Gary Rogers
10.11 Severance Agreement, dated as of June 12, 1997, between the 23
Company and Laurence M. Rosen and exhibits thereto
including the Consulting Agreement.
Page 6 of 35
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SETTLEMENT AND VOTING AGREEMENT ("Agreement") dated June
12, 1997 among NetLive Communications, Inc., a Delaware
corporation ("NetLive" or the "Company"), May Davis Group,
Inc., ("May Davis"), Owen May, Dibo Attar, Dennis Sal and
the seven investment funds listed on the signature pages
hereto to which Mr. Attar acts as advisor (the "Funds" and
together with May Davis and Messrs. May, Attar, and Sal,
the "Subscribing Parties").
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WHEREAS, the parties have agreed to enter into this
Agreement in order to resolve NetLive corporate governance issues;
WHEREAS, the Subscribing Parties are willing, among other
things, to define their rights with respect to voting of the voting securities
of the Company that are now or hereafter Subscribing Party Voting Securities
(defined below); and
WHEREAS, not later than the approval of this Agreement by
the Board of Directors of the Company, the Company and Laurence Rosen will
have entered into a severance agreement in the form attached hereto as Annex B
providing for, among other things, Mr. Rosen's resignation as President, Chief
Executive Officer, Principal Financial Officer and Treasurer of the Company.
NOW, THEREFORE, in consideration of the agreements, rights,
obligations, and covenants contained herein, the parties hereby agree as
follows:
1. Term. The term of this Agreement (the "Term") shall be
the period commencing on the date hereof and ending on the third anniversary
of the date hereof.
2. Voting.
2.1. The Subscribing Parties shall take such action as may
be required so that all of the Subscribing Party Voting Securities entitled to
vote during the Term are voted in accordance with this Section 2 as follows
and, subject to the requirements of the Securities Exchange Act of 1934, as
amended, use reasonable efforts to encourage holders of other voting
securities of the Company to so vote:
(a) At the 1997 annual meeting of the Company's shareholders
(the "1997 Annual Meeting"), provided that the Board complies with Section
3.1, (i) the Subscribing Party Voting Securities shall be voted in favor of
the election to the Board of Directors of NetLive (the "Board") of all the
Board's nominees, including, without limitation, in favor of Michael
Kharitonov as Chairman of the Board, if he is a Board nominee and (ii)
assuming approval by the shareholders of the Company of the Charter and By-law
amendments set forth in Section 2.1(b) hereof, the Subscribing Party Voting
Securities shall be voted in favor of the division of such nominees into the
classes proposed by the Board as set forth on Annex A hereto. At each
successive annual meeting of shareholders, or any other occasion when the
Company's directors are elected, during the Term of this Agreement, provided
that the Board complies with Section
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3.1, the Subscribing Party Voting Securities shall be voted in favor of all
the Board's nominees. The Board's nominees for election at the 1997 Annual
Meeting and the proposed class divisions are set forth on Annex A hereto.
(b) At the 1997 Annual Meeting, the Subscribing Party Voting
Securities shall be voted in favor of amending the By-laws of the Company by
striking out Sections 1(a) and 1(c) of Article III of the By-laws in their
entirety and amending the Company's Certificate of Incorporation by adding new
Articles IX , X and XI to read as follows; provided however that in place of
the reference to the Class III Directors' Designee and the Subscribing Party
Designee in the form of Article XI set forth below, Article XI shall contain
the names of the individuals designated as Class III Directors' Designee and
Subscribing Party Designee pursuant to this Agreement:
"Article IX: Number of Directors: The number of directors of the
Corporation shall be seven."
"Article X: Classified Board of Directors. The directors, other than
those who may be elected by the holders of any class or series of
stock having a preference over the Common Stock as to dividends or
upon liquidation pursuant to the terms of this Certificate of
Incorporation or any resolution or resolutions providing for the
issuance of any such series of stock adopted by the Board of
Directors, shall be classified with respect to the time for which
they severally hold office into three classes, as nearly equal in
number as possible. The initial Class I Directors shall serve for a
term expiring at the first annual meeting of stockholders of the
Corporation following the adoption of this amendment of this
Certificate; the initial Class II Directors shall serve for a term
expiring at the second annual meeting of stockholders following this
amendment of this Certificate; and the initial Class III Directors
shall serve for a term expiring at the third annual meeting of
stockholders following the adoption of this amendment of this
Certificate. Each director in each such class shall hold office until
his or her successor is duly elected and qualified or until his
earlier death, disability, resignation or removal. At each annual
meeting of stockholders beginning with the first annual meeting of
stockholders following the adoption of this amendment of this
Certificate, the successors of the class of directors whose term
expires at that meeting shall be elected to hold office for a term
expiring at the annual meeting of stockholders to be held in the
third year following the year of their election, with each director
in each such class to hold office until his or her successor is duly
elected and qualified or until his earlier death, disability,
resignation or removal."
"Article XI. Vacancies. If any seat on the Board becomes
vacant during its initial term following the 1997 Annual Meeting,
such vacancy shall be filled as follows: (i) in the case of Class III
directors, by the vote of a majority of the remaining Class III
Directors, (ii) in the case of the Class II Directors or the Class
III Directors' Designee or its successors (all such Directors being
referred to as the "Independent Directors"), by the vote of a
majority of the remaining Independent Directors, and (iii) in the
case of the Subscribing Party Designee or its successors, by the
Subscribing Parties so long as such person is not an officer or
employee of May Davis and is reasonably acceptable to the Board.".
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2.2. Voting Trust or Arrangement. None of the Subscribing
Party Voting Securities shall be deposited in a voting trust or subjected to
any arrangement or agreement with respect to the voting of such Subscribing
Party Voting Securities, except as provided herein.
2.3 Transfer or Acquisition of Voting Securities of the
Company. Subject to Section 2.4, if any voting securities of the Company cease
to be Subscribing Party Voting Securities during the term of this Agreement,
such securities shall thereupon cease to be subject to the voting restrictions
of this Section 2; and if any voting securities of the Company become
Subscribing Party Voting Securities during the term of this Agreement, such
securities shall thereupon become subject to such voting restrictions.
2.4. Transfer Restrictions. The Subscribing Parties
represent and warrant that there are 315,000 outstanding shares of Common
Stock that are Subscribing Party Voting Securities as of the date hereof and
that such number of shares of Common Stock will continue to be Subscribing
Party Voting Securities through the date of the 1997 Annual Meeting (including
any adjournments of such Meeting). The Subscribing Parties shall not sell or
otherwise transfer any of the Subscribing Party Voting Securities (or take any
other action that would cause such Common Stock to cease to be Subscribing
Party Voting Securities) until after the 1997 Annual Meeting (including any
adjournments of such Meeting). Any proposed transfer of Subscribing Party
Voting Securities by a Subscribing Party shall be void unless in accordance
with the provisions of this Section 2.4.
3. Other Agreements.
3.1. Board Representation. Promptly after the initial
Subscribing Party Designee and Class III Directors' Designee have been
determined, the Board will be increased to seven members, the Subscribing
Party Designee and Class III Directors' Designee will be simultaneously
elected by the Board to the Board and such persons will be nominated by the
Board for election to the Board at the 1997 Annual Meeting. Thereafter, for
the Term of this Agreement, the Board will include among its nominees for
election to the Board as Class I directors a designee of the Subscribing
Parties who is not an officer or employee of May Davis and is reasonably
acceptable to the Board ("Subscribing Party Designee") and an independent
designee of a majority of the Class III Directors then in office who is
reasonably acceptable to May Davis and the Board ("Class III Directors'
Designee"); provided that the Subscribing Parties and the Class III Directors,
as the case may be, provide the name of their proposed designee to the Board
at least 120 days before the anniversary of the prior year's annual meeting.
3.2. Proxy or Consent Solicitations. During the Term, no
member of the Subscribing Parties shall solicit proxies or consents or
initiate, propose or become a "participant" in a "solicitation" (as such terms
are defined in Regulation 14A under the Securities Exchange Act of 1934, as
amended, or any similar successor statute (the "Exchange Act")), in opposition
to any matter which has been recommended by a majority of Board or in favor of
any matter which has not been approved by a majority of the Board or seek
directly or indirectly to advise, encourage or influence any Person with
respect to the voting of voting securities of the Company in such manner, or
directly or indirectly induce or attempt to induce any Person to initiate any
stockholder proposal. In addition, during the Term, the Subscribing Parties
will cooperate with the Company's efforts to solicit shareholders proxies to
the extent permitted by applicable law.
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3.3. Group Participation. None of the Subscribing Parties
shall join, or permit any subsidiary to join and will use its reasonable
efforts to prevent any Affiliate from joining, a partnership, limited
partnership, syndicate or other group, or otherwise act in concert with any
other person, for the purpose of acquiring, holding, voting or disposing of
any securities of the Company, (other than by the group disclosed in the
Schedule 13-D of May Davis, dated March 7, 1997, in a manner consistent with
the purposes hereof).
3.4. Acknowledgment. The Subscribing Parties hereby
acknowledge, irrevocably consent and do not object that the Board of Directors
intends to:
(a) amend Article III, Section 6 of the Company's By-laws by
adding the following sentence after the period at the end thereof:
"The Chairman of the Board shall be elected by the Shareholders
of the Company and he shall hold office until the expiration of
his term as director or until his death, resignation or removal
for cause."; and
(b) amend Article IV, Sections 1(c) and 3 of the Company's
By-laws by removing the period at the end of each Section and adding to each
the following phrase: ", except as provided in Article III, Section 6
hereof.".
3.5. Consent of May Davis. May Davis hereby agrees to
execute and deliver to the Company simultaneously with the execution of this
Agreement, its written consent pursuant to Section 5(p) of the Underwriting
Agreement, dated August 12, 1996 between May Davis and NetLive (the
"Underwriting Agreement") to the filing by the Company, on or after May 14,
1998, of one or more Form S-8 registration statements and any amendments
thereto which register the offer and sale of not more than 1,360,000 shares of
Common Stock issuable upon the exercise of stock options or pursuant to the
NetLive Performance Share Program Plan (the "Plan") as described in Section
3.8 hereof and/or any employee benefit program of the Company.
3.6. Withdrawal of Demand for Shareholder List. The
Subscribing Parties agree to cause May Davis to issue simultaneously herewith
a written withdrawal of its demand, dated February 27, 1997, pursuant to
Section 220 of the Delaware General Corporation Law, for a list of the
Company's shareholders.
3.7. Payment of Legal Fees and Expenses. Simultaneously with
the execution of this Agreement, the Company shall deliver to the Subscribing
Parties a check in the amount of $35,000, payable to Shereff, Friedman,
Hoffman & Goodman, LLP, as reimbursement of certain of the documented
out-of-pocket legal fees and expenses incurred by the Subscribing Parties in
connection with the subject matter of this Agreement.
3.8. Performance Share Program. The Company represents and
warrants that a maximum of 300,000 shares of Common Stock have been issued to
the NetLive Communications, Inc. Performance Share Program Trust (the "Trust")
pursuant to the Plan and that 106,000 shares of Common Stock have been awarded
under the Plan as of the date hereof. The Company agrees that it will not
authorize the issuance to the Trust of more than the 300,000 shares of Common
Stock previously issued to the Trust and the remaining 194,000 shares of
Common Stock issued to the Trust
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and not already awarded to NetLive employees (the "Remaining Shares") shall
not be awarded under the Plan except in connection with any compensation
packages awarded in connection with the recruitment and hiring and retention
from time to time of the Company's new Chief Executive Officer and other
senior management excluding Michael Kharitonov, Laurence Rosen, Andrew
Schwartz, Jeffrey Wolf and Scott Wolf.
The parties further agree that if all or at least 2/3 of the Remaining Shares
are not so awarded by June 30, 1998, the Company will use its reasonable
efforts to cause the Trust to return the unawarded Remaining Shares to the
Company; provided that the unawarded Remaining Shares shall not be returned to
the Company if such return cannot be done in accordance with all applicable
laws or would have a material adverse tax effect.
3.9. The 1997 Annual Meeting. The Company shall use its
reasonable efforts to call and hold the 1997 Annual Meeting not later than
August,31 1997 and in any event shall hold such meeting (including any
adjournments ) not later than September 15, 1997 unless, despite the Company's
continuing reasonable efforts to hold such meeting not later than September
15, 1997, the meeting is delayed by forces beyond the Company's reasonable
control including, without limitation, delays arising out of the review of the
proxy materials for such meeting by the Securities and Exchange Commission or
a shareholder vote to adjourn such meeting which is supported by the
Subscribing Parties. If the Company violates this Section 3.9, the Subscribing
Parties shall be released from the transfer restrictions in Section 2.4. Such
release shall be the sole remedy for the violation of this Section 3.9, and
this Agreement shall otherwise remain in full force and effect.
4. Release. (a) Each of the Subscribing Parties hereby
irrevocably and unconditionally:
(i) releases the Company and its officers, directors,
employees, agents and Affiliates, and each of its predecessors in
interest, successors, heirs and assigns, from any and all claims,
rights, damages, demands, causes of action or liabilities of any
nature whatsoever, known or unknown, contingent or fixed, whether due
or to become due, other than for any matter specifically contemplated
by this Agreement, that any Subscribing Party had, now has or may
have at any future time by reason of any cause, matter or thing
whatsoever, directly or indirectly, related to any action taken or
omitted to be taken by such persons on or prior to the date hereof
including, without limitation, any alleged breaches of fiduciary duty
or other act or omission relating to the proposal made to NetLive by
the Zodiac Group, Inc. or the NetLive Communication, Inc.
Performance Share Program Trust and Plan; and
(ii) covenants not to sue the Company and its officers,
directors, employees, agents and Affiliates, and each of its
predecessors in interest, successors, heirs and assigns, of, from or
with respect to any and all claims, rights, damages, demands, causes
or liabilities of any nature whatsoever, known or unknown, contingent
or fixed, whether due or to become due, other than for any matter
arising out of this Agreement, that any Subscribing Party has had,
now has or may have at any future time by reason of any cause, matter
or thing whatsoever, directly or indirectly, related to any action
taken or omitted to be taken by such persons on or prior to the date
hereof including, without limitation, any alleged breaches of
fiduciary duty or other act or omission relating to the proposal made
to NetLive by the Zodiac Group, Inc. or the NetLive Communication,
Inc. Performance Share Program Trust and Plan.
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(b) The Company hereby irrevocably and unconditionally:
(i) releases each of the Subscribing Parties and its or his
officers, directors, employees, agents, trustees and Affiliates, and
each of its or his predecessors in interest, successors, heirs and
assigns, from any and all claims, rights, damages, demands, causes of
action or liabilities of any nature whatsoever, known or unknown,
contingent or fixed, whether due or to become due, other than for any
matter specifically contemplated by this Agreement, that the Company
had, now has or may have at any future time by reason of any cause,
matter or thing whatsoever, directly or indirectly, related to any
action taken or omitted to be taken by such persons on or prior to
the date hereof including, without limitation, any alleged breaches
of fiduciary duty or other act or omission relating to the proposal
made to NetLive by the Zodiac Group, Inc., the NetLive Communication,
Inc. Performance Share Program Trust and Plan or the formation of a
group for purposes of commencing a consent solicitation of the
Company's shareholders; and
(ii) covenants not to sue each of the Subscribing Parties
and its or his officers, directors, employees, agents, trustees and
Affiliates, and each of its or his predecessors in interest,
successors, heirs and assigns, of, from or with respect to any and
all claims, rights, damages, demands, causes or liabilities of any
nature whatsoever, known or unknown, contingent or fixed, whether due
or to become due, other than for any matter arising out of this
Agreement, that the Company has had, now has or may have at any
future time by reason of any cause, matter or thing whatsoever,
directly or indirectly, related to any action taken or omitted to be
taken by such persons on or prior to the date hereof including,
without limitation, any alleged breaches of fiduciary duty or other
act or omission relating to the proposal made to NetLive by the
Zodiac Group, Inc., the NetLive Communication, Inc. Performance Share
Program Trust and Plan or the formation of a group for purposes of
commencing a consent solicitation of the Company's shareholders.
(c) In the event that any one or more of the provisions of
this Section 4 shall be or become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not be affected thereby. The invalidity, illegality or
unenforceability of any provision of this Section 4 shall have no effect on
the enforceability of any provision of any of this Agreement and shall not
give rise to any claim, whether for damages, rescission, restitution or
otherwise.
5. Representations And Warranties.
5.1. NetLive represents and warrants to the Subscribing
Parties as follows: The execution and delivery of this Agreement and any other
agreements contemplated hereby and the consummation of the transactions
contemplated hereby and thereby will not conflict with, or result in any,
violation of or default under, any provision of the Articles of Incorporation
or By-laws of NetLive, or of any agreement or instrument binding upon NetLive.
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5.2. The Subscribing Parties represent and warrant to
NetLive as follows: The execution and delivery of this Agreement and any other
agreement contemplated hereby and the consummation of the transactions
contemplated hereby and thereby will not conflict with, or result in any
violation of or default under, any provision of the Certificate of
Incorporation or By-laws of May Davis Group or conflict with any agreement,
instrument binding upon or governing document of any of the Subscribing
Parties.
6. Miscellaneous.
6.1. Definitions. The following terms shall have the
following meanings.
(a) Affiliate. "Affiliate" shall have the meaning ascribed
to it in Rule 12b-2 of the General Rules and Regulations under the Exchange
Act, as in effect on the date hereof.
(b) Subscribing Party Voting Securities. "Subscribing Party
Voting Securities" shall mean voting securities of the Company which from time
to time during the Term of this Agreement are (i) beneficially owned by the
Subscribing Parties solely for their, its or his own account, (ii)
beneficially owned by one or more entities of which the Subscribing Parties
own, directly or indirectly, more than 50% of the outstanding equity
interests, (iii) voting securities of the Company over which the Subscribing
Parties have majority voting or majority dispositive power. For the purposed
of this definition, (x) voting securities of the Company shall be deemed to be
owned for the account of a Subscribing Party if such voting securities are
owned for the account of any member of such Subscribing Party's immediate
family (as such term is defined in Rule 16a-1(e) promulgated under the
Securities Exchange Act of 1934, as amended) or for the account of any trust
established for the benefit of such Subscribing Party or any such member of
his or its immediate family and (y) a Subscribing Party shall be deemed to
have voting or dispositive power over voting securities of the Company to the
extent that any member of such Subscribing Party's immediate family or any
trustee of any trust established for the benefit of such Subscribing Party or
such immediate family members shall have voting or dispositive power over such
voting securities.
(c) Person. A "person" shall mean any individual, firm,
corporation, partnership or other entity.
6.2. Specific Enforcement. The Subscribing Parties
acknowledge and agree that NetLive would be irreparably damaged in the event
any of the provisions of this Agreement were not performed in accordance with
their specific terms or were otherwise breached. It is accordingly agreed that
NetLive shall be entitled to an injunction or injunctions to prevent breaches
of this Agreement and to specifically enforce this Agreement and the terms and
provisions thereof in any action instituted in any court of the United States
or any state thereof having subject matter jurisdiction, in addition to any
other remedy to which NetLive may be entitled, at law or in equity.
6.3. Modification; Waiver. This Agreement may be modified in
any manner and at any time by written instrument executed by the parties
hereto. None of the terms, covenants, and conditions of this Agreement may be
waived at any time except by written instrument executed by the parties
hereto.
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6.4. Notices. All notices, requests, demands, claims, and
other communications hereunder shall be in writing and shall be delivered by
certified or registered mail (first class postage pre-paid), guaranteed
overnight delivery, or facsimile transmission confirmed by any method set
forth above and shall be deemed given upon receipt thereof:
(a) if to NetLive to:
584 Broadway, Suite 806
New York, New York 10012
Attention: General Counsel
Telecopy: (212) 343-7090
(b) if to any of the Subscribing Parties to the address set
forth next to such party's name on the signature pages hereto;
or at such other address or to such other person as may be specified in
writing duly delivered to all other parties by any party.
6.5. Parties In Interest; Assignment. This Agreement and all
the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, representatives, successors and
permitted assigns, but neither this Agreement nor any of the rights,
interests, and obligations hereunder shall be assigned by any of the parties
hereto without the prior written consent of the other parties hereto. Nothing
in this Agreement, whether expressed or implied, shall be construed to give
any person other than the parties hereto any legal or equitable right, remedy,
or claim under or in respect of this Agreement.
6.6. Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall constitute one and the same instrument.
6.7. Headings. The article and section headings of this
Agreement are for convenience of reference only and shall not be deemed to
alter or affect the meaning or interpretation of any provisions hereof.
6.8. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York
applicable to contracts made and to be performed therein.
6.9. Severability. If any provision of this Agreement shall
be determined to be illegal and unenforceable by any court of law, the
remaining provisions shall be severable and enforceable in accordance with
their terms.
6.10. Effectiveness. This Agreement shall not become
effective until it has been approved by the Board of Directors of the Company,
which may determine in its sole discretion whether or not to approve this
Agreement. If such approval is not granted by June 13, 1997, this Agreement
may be rescinded by any party hereto; but unless and until such action is
taken, this Agreement shall be binding on the Subscribing Parties.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first above written.
NETLIVE COMMUNICATIONS, INC.
By: /s/ Michael Khazitonor
----------------------------------------
Name: Michael Khazitonor
Title: Chairman of the Board
Chief Executive Officer
Address: THE SUBSCRIBING PARTIES:
Owen May MAY DAVIS GROUP, INC.
May Davis Group, Inc.
Wall Street Tower
20 Exchange Place By: /s/ Owen May
New York, NY 10005 ----------------------------------------
Facsmile No. (212) 480-2757 Name: Owen May
Title: Chairman and Chief Executive
Officer
Address: /s/ Owen May
----------------------------------------
OWEN MAY
Owen May
May Davis Group, Inc.
Wall Street Tower
20 Exchange Place
New York, NY 10005
Facsmile No. (212) 480-2757
Address:
----------------------------------------
DIBO ATTAR
Dibo Attar
Woodco Fund Management
4900 Woodway - Suite 650
Houston, Texas 77056
Facsimile No. (713) 621-8027
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first above written.
NETLIVE COMMUNICATIONS, INC.
By:
----------------------------------------
Name: Michael Khazitonor
Title: Chairman of the Board
Chief Executive Officer
Address: THE SUBSCRIBING PARTIES:
Owen May MAY DAVIS GROUP, INC.
May Davis Group, Inc.
Wall Street Tower
20 Exchange Place By: /s/ Owen May
New York, NY 10005 ----------------------------------------
Facsmile No. (212) 480-2757 Name: Owen May
Title: Chairman and Chief Executive
Officer
Address: /s/ Owen May
----------------------------------------
OWEN MAY
Owen May
May Davis Group, Inc.
Wall Street Tower
20 Exchange Place
New York, NY 10005
Facsmile No. (212) 480-2757
Address:
----------------------------------------
DIBO ATTAR
Dibo Attar
Woodco Fund Management
4900 Woodway - Suite 650
Houston, Texas 77056
Facsimile No. (713) 621-8027
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first above written.
NETLIVE COMMUNICATIONS, INC.
By:
----------------------------------------
Name: Michael Khazitonor
Title: Chairman of the Board
Chief Executive Officer
Address: THE SUBSCRIBING PARTIES:
Owen May MAY DAVIS GROUP, INC.
May Davis Group, Inc.
Wall Street Tower
20 Exchange Place By:
New York, NY 10005 ----------------------------------------
Facsmile No. (212) 480-2757 Name: Owen May
Title: Chairman and Chief Executive
Officer
Address:
----------------------------------------
OWEN MAY
Owen May
May Davis Group, Inc.
Wall Street Tower
20 Exchange Place
New York, NY 10005
Facsmile No. (212) 480-2757
Address: /s/ Dibo Attar
----------------------------------------
DIBO ATTAR
Dibo Attar
Woodco Fund Management
4900 Woodway - Suite 650
Houston, Texas 77056
Facsimile No. (713) 621-8027
<PAGE>
Address: /s/ Dennis Sal
---------------------------------------
DENNIS SAL
Dennis Sal
Dennis Sal Associates
15700 West Ten Mile Road
Suite 112
Southfield, Michigan 48075
Facsimile No. (810) 569-6242
Address: DAVSTAR II MGD. INVESTMENTS CORP. N.V.
Davstar II Mgd. Investments By:
Corp. N.V. -------------------------------------
c/o Woodco Fund Management Name:
4900 Woodway - Suite 650 Title:
Houston, Texas 77056
Facsimile No. (713) 621-8027
Address: JASMINVILLE CORP. N.V.
Jasminville Corp. N.V. By:
c/o Woodco Fund Management -------------------------------------
4900 Woodway Name:
Suite 650 Title:
Houston, Texas 77056
Facsimile No. (713) 621-8027
Address: CELESTIAL DREAMS CORP. N.V.
Celestial Dreams Corp. N.V. By: /s/
c/o Woodco Fund Management -------------------------------------
4900 Woodway - Suite 650 Name:
Houston, Texas 77056 Title:
Facsimile No. (713) 621-8027
<PAGE>
Address:
----------------------------------------
DENNIS SAL
Dennis Sal
Dennis Sal Associates
15700 West Ten Mile Road
Suite 112
Southfield, Michigan 48075
Facsimile No. (810) 569-6242
Address: DAVSTAR II MGD. INVESTMENTS CORP. N.V.
Davstar II Mgd. Investments By: /s/ Russell S. Molina
Corp. N.V. -------------------------------------
c/o Woodco Fund Management Name: Russell S. Molina
4900 Woodway - Suite 650 Title: Attorney-in-Fact
Houston, Texas 77056
Facsimile No. (713) 621-8027
Address: JASMINVILLE CORP. N.V.
Jasminville Corp. N.V. By: /s/ Russell S. Molina
c/o Woodco Fund Management -------------------------------------
4900 Woodway Name: Russell S. Molina
Suite 650 Title: Attorney-in-Fact
Houston, Texas 77056
Facsimile No. (713) 621-8027
Address: CELESTIAL DREAMS CORP. N.V.
Celestial Dreams Corp. N.V. By: /s/ Gregory Elias
c/o Woodco Fund Management -------------------------------------
4900 Woodway - Suite 650 Name: Gregory Elias
Houston, Texas 77056 Title: Intertrust (Curacao) N.V.
Facsimile No. (713) 621-8027 Managing Director
<PAGE>
Address: EAGLEHURST CORP. N.V.
Eaglehurst Corp. N.V. By: /s/ Gregory Elias
c/o Woodco Fund Management -------------------------------------
4900 Woodway - Suite 650 Name: Gregory Elias
Houston, Texas 77056 Title: Intertrust (Curacao) N.V.
Facsimile No. (713) 621-8027 Managing Director
Address: SIGNAL HILL N.V.
Signal Hill N.V. By: /s/ Gregory Elias
c/o Woodco Fund Management -------------------------------------
4900 Woodway - Suite 650 Name: Gregory Elias
Houston, Texas 77056 Title: Intertrust (Curacao) N.V.
Facsimile No. (713) 621-8027 Managing Director
Address: WELLINGTON CORP. N.V.
Wellington Corp. N.V. By: /s/ Gregory Elias
c/o Woodco Fund Management -------------------------------------
4900 Woodway - Suite 650 Name: Gregory Elias
Houston, Texas 77056 Title: Intertrust (Curacao) N.V.
Facsimile No. (713) 621-8027 Managing Director
Address: GANATERRA CORP. N.V.
Ganaterra Corp. N.V. By: /s/ Gregory Elias
c/o Woodco Fund Management -------------------------------------
4900 Woodway - Suite 650 Name: Gregory Elias
Houston, Texas 77056 Title: Intertrust (Curacao) N.V.
Facsimile No. (713) 621-8027 Managing Director
<PAGE>
ANNEX A
NOMINEES FOR ELECTION TO THE NETLIVE BOARD
FOR THE 1997 ANNUAL MEETING
AND PROPOSED CLASS DIVISION
Class I
Class III Directors' Designee
Subscribing Party Designee
Class II
Ross S. Glatzer
John E. Meier
Class III
Michael Kharitonov
Andrew Schwartz
Jeffrey Wolf
<PAGE>
EXHIBIT 10.10
NetLive Communications, Inc.
584 Broadway
New York, New York 10012
June 12, 1997
Mr. Gary Rogers
210 Boulder Ridge Road
Scarsdale, New York 10583
Re: Settlement Agreement, dated June , 1997, by and among
NetLive Communications Inc. (the "Company"), May Davis
Group, Inc., Owen May, Dibo Attar, Dennis Sal and the
Funds signatory thereto (the "Settlement Agreement")
-------------------------------------------------------
Dear Mr. Rogers:
You have agreed to be bound by all of the obligations of the Subscribing
Parties under the Settlement Agreement (including the releases granted by the
Subscribing Parties) in consideration of the Company's agreement that the
provisions of the releases granted by the Company pursuant to Section 4(b)
of the Settlement Agreement shall apply to you to the same extent as such
provisions apply to Subscribing Parties. You have also hereby confirmed that
as of the date of this letter you own no capital stock of the Company.
Please countersign this letter in the space below if this letter
accurately reflects our mutual agreement.
NETLIVE COMMUNICATIONS, INC.
By: /s/ Michael Khantouov
--------------------------------
Name: Michael Khantouov
Title: Chairman of the Board
Chief Executive Officer
Accepted and Agreed to
as of the date first above written:
/s/ Gary Rogers
- -----------------------------------
Gary Rogers
<PAGE>
Exhibit 10.11
SEVERANCE AGREEMENT
------------------
Agreement between NetLive Communications, Inc., a Delaware
Corporation having a place of business at 584 Broadway, Suite 806, New
York, New York 10012 (the "Company"), and Laurence Rosen ("Employee"),
an individual residing at 94 Hudson Street, Apartment 3, Hoboken, New
Jersey 07030;
Whereas, the Company and Employee previously entered into an
Employment Agreement, effective as of September 1, 1995, pursuant to
which Employee has served as president and chief executive officer of
the Company; and
Whereas, the Employee has agreed to resign from the Company
as its president, its chief executive officer and a member of the
Board of Directors and to serve as a consultant to the Company for a
period of time following his resignation in consideration of which the
Company has agreed to provide Employee with a severance package and to
remunerate Employee with respect to the consulting services Employee
is to provide;
Now, therefore, in consideration of the foregoing and the
mutual promises and covenants herein contained, it is agreed as
follows:
1. Resignation: Employee hereby resigns from the positions of chief
executive officer, president and member of the Board of Directors, as
well as any other position with the Company, effective immediately
upon the Company's Board of Directors ratification of this Agreement
(the "Termination Date"). Attached hereto as Exhibit A is a form of
resignation letter which the Employee will execute simultaneously with
the execution of this Agreement.
2. Severance and Consulting: Upon resignation, the Company shall pay
Employee the sum of $147,500.00. For a period commencing on the
Termination Date and ending September 1, 1997, Employee shall continue
to serve the Company as a consultant, pursuant to the terms of the
Consulting Agreement (a copy of which is attached hereto as Exhibit B)
into which the Company and Employee shall enter simultaneously with
the execution of this Agreement. Among other things, the Consulting
Agreement provides that the Employee shall be remunerated at the rate
of $500.00 per month.
3. Options: For purposes of the vesting of outstanding options to
purchase the Company's common stock held by Employee, the Termination
Date shall be deemed to be September 1, 1997, and any unvested options
held by Employee shall vest as scheduled until that time. In addition,
the Company hereby waives the application of Section 11(a), (d) and
(f) of the Company's 1996 Stock Option Plan and the first sentence of
Paragraph 7 of each of the Option Agreements between the Company and
the Employee pursuant to such Plan. Employee hereby waives application
of Section 6 of the Stock Option Plan. Employee acknowledges that this
paragraph may have the effect of disqualifying certain options held by
Employee as "incentive" options, as that term is used in the Internal
Revenue Code, Section 422. Employee shall have no right to any
additional options other than those already issued and vested and
those issued and
<PAGE>
scheduled to vest prior to September 1, 1997. To the extent inconsistent, the
terms of this paragraph shall supersede the terms of any existing option
agreements between Employee and the Company and the applicable terms of the
Company's 1996 Stock Option Plan.
4. Benefits: The Company will maintain Employee's coverage under the Company's
medical, dental and disability plans available to its executives until
September 1, 1998, except that to the extent such plans do not permit further
coverage of Employee following the Termination Date. In such event, the
Company will pay the cost of Employee's COBRA premiums through the period
ending September 1, 1998.
5. Confidentiality and Non-Competition: Employee acknowledges that he remains
subject to Section 5 of the Employment Agreement, pertaining to
confidentiality, following the Termination Date. As required by Section 5 of
the Employment Agreement, Employee agrees that for a period of two years
following the Termination Date, Employee shall not directly or indirectly
compete with the Company in any business in which the Company is presently
engaged, including, but not limited to, the area of Internet voiceconferencing
or videoconferencing. Employee agrees that for a period of one year following
the Termination Date, Employee will not employ nor be employed by, directly or
indirectly, any person who is employed by the Company as of the date of this
Agreement or as of the Termination Date.
6. Releases: The terms of this Agreement shall satisfy any obligations the
Company may have to the Employee pursuant to the Employment Agreement or
otherwise. Upon execution of this Agreement, both the Company and the Employee
shall execute general releases in favor of the other in the forms attached
hereto as Exhibits C and D.
7. Representations:
(a) Company hereby represents and warrants that it has been duly authorized
to enter into this Agreement and that the Agreement is a binding
obligation upon the Company, except that this Agreement shall not bind
either the Company or Employee until ratified by the Company's Board of
Directors. The Company shall use its best efforts to obtain such
ratification.
(b) Employee hereby represents and warrants that during his employment and/or
association with the Company he has not committed, participated in or has
any knowledge of any violations of applicable law relating to the Company
or its assets.
8. Publicity: Subject to the parties' respective obligations under the federal
securities and other applicable laws, neither party shall disparage the other
and any press release or other publication of information pertaining to this
Agreement or Employee's resignation shall be subject to the approval of the
other party, which approval shall not be unreasonably withheld.
9. Legal and Tax Advice: Employee has consulted counsel with respect to the
terms of this Agreement and has consulted with his personal tax advisor
regarding the tax implications of the modification of the terms of Employee's
existing option agreements with the Company. To the
2
<PAGE>
extent that the payments in paragraph 3 are determined to be subject to any
taxes or other state or federal withholdings, the Employee will be solely
responsible for payment of such taxes or withholdings. The Employee agrees to
indemnify, defend and hold the Company harmless from any and all claims,
demands, damages, losses, suits, judgments, liabilities, settlements, expenses
and costs that the Company may incur, suffer, or be subject to as a result of
or in connection with the Company's failure to withhold taxes or other
required state or federal withholdings from the payments made under paragraph
3.
10. Interpretation: To the extent there are any inconsistencies between the
terms of this Agreement and any other agreement between Employee and the
Company, the terms of this Agreement shall govern.
11. Choice of Law: This agreement shall be governed under New York law without
regard to principles of conflicts of law. Any disputes shall be resolved in
the state or federal courts located in New York County.
12. Cooperation in Litigation: Employee agrees to cooperate fully with the
Company in the Company's defense of any future or present claims, causes
of actions, suits, debts, obligations, promises and demands asserted
against the Company arising out of or relating to any of the Company's
affairs at any time in the past through the time of execution of this
Agreement. The Company agrees to compensate Employee for his time
expended in such cooperation at his regular hourly rate of $100 per hour.
13 Covenant Not To Sue:
(a) The Employee, his successors and assigns (the "Employee" being used
collectively for the purposes of this Paragraph 13) hereby irrevocably and
unconditionally covenants not to sue, directly or indirectly, the Company, its
officers, directors, shareholders, employees, agents, and affiliates (the
"Company" being used collectively for the purposes of this Paragraph 13) or to
assist others in doing so (except as compelled by subpoena or applicable law),
of, from or with respect to any and all claims, rights, damages, demands,
causes or liabilities of any nature whatsoever, contingent or fixed, whether
due or to become due, that the Employee has had, now has or may have at any
future time by reason of any cause, matter or thing whatsoever, directly or
indirectly, related to any action taken or omitted to be taken by the Company
on or prior to the date hereof; provided, however, that the following shall be
preserved and excluded from the foregoing covenant: (i) any rights of Employee
under this Agreement or any agreement executed simultaneous herewith; and (ii)
any claims, causes of actions, suits, debts, obligations, promises and demands
of any kind, whether legal or equitable, which the Employee may have against
NetLive Communications, Inc., arising at any time in the past through the time
of execution of this Release arising out of any events or conditions that were
not known or should not have been known through the exercise of reasonable
diligence, at the time of execution of this Release, by Laurence Rosen.
3
<PAGE>
(b) The Company hereby irrevocably and unconditionally covenants not to sue,
directly or indirectly, the Employee and his successors and assigns, or to
assist others in doing so (except as compelled by subpoena or applicable law),
of, from or with respect to any and all claims, rights, damages, demands,
causes or liabilities of any nature whatsoever, contingent or fixed, whether
due or to become due, that the Company has had, now has or may have at any
future time by reason of any cause, matter or thing whatsoever, directly or
indirectly, related to any action taken or omitted to be taken by the Employee
on or prior to the date hereof; provided, however, that the following shall be
preserved and excluded from the foregoing covenant: (i) any rights of the
Company under the Agreement or any agreement executed simultaneous herewith;
and (ii) any claims, causes of actions, suits, debts, obligations, promises
and demands of any kind, whether legal or equitable, which NetLive
Communications, Inc. may have against Employee, arising at any time in the
past through the time of execution of this Release arising out of any events
or conditions that were not known or should not have been known through the
exercise of reasonable diligence, at the time of execution of this Release, to
any officer or member of the Board of Directors of NetLive Communications,
Inc. other than Laurence Rosen.
Dated: June 12, 1997
NetLive Communications, Inc.
By:
/s/ Michael Kharitonov
- -------------------------------
Michael Kharitonov
Chairman of the Board
/s/ Laurence Rosen
- -------------------------------
Laurence Rosen, Individually
4
<PAGE>
Exhibit A
---------
94 Hudson Street, Apt. 3
Hoboken, New Jersey 07030
June 12, 1997
Board of Directors
NetLive Communications, Inc.
584 Broadway, Suite 806
New York, New York 10021
Dear Sirs:
Pursuant to the Severance Agreement between NetLive
Communications, Inc. (the "Company") and me, dated June 12, 1997, I
hereby resign from the positions of chief executive officer,
president, chief financial officer, treasurer and member of the Board
of Directors and from all other positions I hold with the Company
immediately upon ratification of the Agreement between the Company and
myself dated June 12, 1997. I hereby acknowledge that the Board of
Directors, the Company or anyone else is not obligated to nominate me
at any time in the future for a position on the Board of Directors.
Very truly yours,
/s/ Laurence Rosen
Laurence Rosen
5
<PAGE>
Exhibit B
---------
CONSULTING AGREEMENT
Agreement, dated and effective June 12, 1997, by and between NetLive
Communications, Inc., a Delaware Corporation having a place of business at 584
Broadway, Suite 806, New York, New York 10012 (the "Corporation"), and Laurence
Rosen, an individual residing at 94 Hudson Street, Apartment 3, Hoboken, NJ
07030 (the "Consultant").
W I T N E S S E T H:
WHEREAS, the Corporation desires to engage the Consultant to consult
to the Corporation and the Consultant desires to consult for the Corporation
pursuant to the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and convenants herein contained, it is agreed as follows:
1. ENGAGEMENT; DUTIES .
(a) The Corporation engages the Consultant, and the Consultant hereby
accepts engagement by the Corporation, and Consultant hereby accepts such
retention by the Corporation to undertake such services as the Corporation
shall reasonably request in connection with the Corporation's business,
including, but not limited to, providing the Corporation with financial,
strategic and general organizational and business advice as the corporation
shall reasonably request.
(b) The Consultant shall provide advisory services to the Corporation
from a location of the Consultant's choice.
(c) The Consultant shall devote such of his time and efforts as shall
be necessary to the proper provision of advisory services under this Agreement.
The Consultant may engage in any other business ventures and activities,
provided that such other ventures and activities will not result in violation
of the provisions of Section 5 hereof, or the Severance Agreement between the
Consultant and the Company, executed simultaneously herewith.
2. TERMS
The Consultant's engagement hereunder shall be for a term of four and
a half months commencing on June 12, 1997 and continuing through September 1,
1997.
1
<PAGE>
3. COMPENSATION
(a) As compensation for the performance of his duties on behalf of the
Corporation, the Consultant shall be compensated as follows:
(i) The Corporation shall pay the Consultant a non-cancelable,
non-refundable retainer ("Retainer") at the rate of $500 per month. The first
payment of $250 (representing the pro rata portion of the payment for the month
of June) shall be payable on the signing of this agreement, and all remaining
payments shall be payable on the first day of each month, in advance.
The Corporation is retaining the Consultant as an independent
contractor and as such will not withhold any amounts payable hereunder for
taxes. The Consultant shall be responsible for payment of income, social
security and other government taxes as an independent entity.
(b) The Corporation shall reimburse the Consultant for all normal,
usual and necessary expenses incurred by the Consultant in furtherance of the
business and affairs of the Corporation against receipt by the Corporation of
appropriate vouchers or other proof of the Consultant's expenditures and
otherwise in accordance with such Expense Reimbursement Policy as may from time
to time be adopted by the Board of Directors of the Corporation.
4. REPRESENTATIONS AND WARRANTIES BY
THE CONSULTANT AND CORPORATION
The Consultant hereby represents and warrants to the Corporation as
follows:
(a) Neither the execution and delivery of this Agreement nor the
performance by the Consultant of his duties and other obligations hereunder
violate or will violate any statute, law, determination or award, or conflict
with or constitute a default under (whether immediately, upon the giving of
notice or lapse of time or both) any prior employment agreement, contract, or
other instrument to which the Consultant is a party or by which he is bound.
(b) The Consultant has the full right, power and legal capacity to
enter and deliver this Agreement and to perform his duties and other
obligations hereunder. This Agreement constitutes the legal, valid and binding
obligation of the Consultant enforceable against him in accordance with its
terms. No approvals or consents of any persons or entities are required for the
Consultant to execute and deliver this Agreement or perform his duties and
other obligations hereunder.
2
<PAGE>
The Corporation hereby represents and warrants to the Consultant as
follows:
(a) The Corporation is duly organized, validly existing and in good
standing under the laws of the State of Delaware, with all requisite corporate
power and authority to own its properties and conduct its business in the
manner presently contemplated.
(b) The Corporation has full power and authority to enter into this
Agreement and to incur and perform its obligations hereunder.
(c) The execution, delivery and performance by the Corporation of this
Agreement does not conflict with or result in a breach or violation of or
constitute a default under (whether immediately, upon the giving of notice or
lapse of time or both) the certificate of incorporation or by-laws of the
Corporation, or any agreement or instrument to which the Corporation is a party
or by which the Corporation of any of its properties may be bound or affected.
(d) The Corporation does not now contemplate and will not in the
future require the performance by the Consultant of acts that would conflict
with his obligations to any former employer or under applicable law.
Specifically, the Corporation acknowledges that the Consultant's duties will
not include the solicitation of Consultants or customers of any former employer
or consulting assignment, disclosure to the Corporation of any trade secrets of
a former employer or consulting assignment, or the use by the Consultant in the
course of his employment of any documents provided to the Consultant by a
former employer or inventions developed by the Consultant during any former
engagement.
5. CONFIDENTIAL INFORMATION
The Consultant agrees that during the course of his engagement or at
any time after termination, he will not disclose or make accessible to any
other person, the Corporation's products, services and technology, both current
and under development, promotion and marketing programs, lists, trade secrets
and other confidential and proprietary business information of the Corporation
or any of its clients. The Consultant agrees: (i) not to use any such
information for himself or others; and (ii) not to take any such material or
reproductions thereof from the Corporation's facilities at any time during his
engagement by the Corporation, except as required in the Consultant's duties to
the Corporation. The Consultant agrees immediately to return all such material
and reproductions thereof in his possession to the Corporation upon request and
in any event upon termination of engagement. The foregoing notwithstanding, the
parties acknowledge and agree that the confidential and proprietary information
of the Corporation and/or its clients shall not include (a) information already
in the public domain or hereafter disclosed to the public; (b) general
knowledge about the Internet software and content development industry obtained
through the Consultant's academic and professional experience, including but
not limited to knowledge of (i) the business of other companies in the field,
3
<PAGE>
(ii) general business methods and structures useful in operating Internet or
computer related companies, (iii) the status of patents and other technology in
the field other than those of the Company; or (c) any inventions, discoveries,
improvements, ideas, writings, computer programs, or other work product of the
Consultant made or developed by the Consultant before his engagement or prior
employment by the Corporation.
Except with prior written authorization by the Corporation, the
Consultant agrees not to disclose or publish any of the confidential, technical
or business information or material of the Corporation, its clients or any
other party to whom the Corporation owes an obligation of confidence, at any
time during or after his engagement with the Corporation.
6. NOTICES
Any notice or other communication under this Agreement shall be in
writing and shall be deemed to have been given: when delivered personally
against receipt therefor; one (1) day after being sent by Federal Express or
similar overnight delivery; or three (3) days after being mailed registered or
certified mail, postage prepaid, return receipt requested, or one (1) day after
being sent by telecopier (with mechanical telecopier confirmation of receipt),
to either party at the address set forth above, or to such other address as
such party shall give by notice hereunder to the other party.
7. SEVERABILITY OF PROVISIONS
If any provision of this Agreement shall be declared by a court of
competent jurisdiction to be invalid, illegal or incapable of being enforced in
whole or in part, the remaining conditions and provisions or portions thereof
shall nevertheless remain in full force and effect and enforceable to the
extent they are valid, legal and enforceable, and no provision shall be deemed
dependent upon any other covenant or provision unless so expressed herein.
8. ENTIRE AGREEMENT: MODIFICATION
This Agreement contains the entire agreement of the parties relating
to the subject matter hereof, and the parties hereto have made no agreements,
representations or warranties relating to the subject matter of this Agreement
which are not set forth herein. No modification of this Agreement shall be
valid unless made in writing and signed by the parties hereto.
4
<PAGE>
9. BINDING EFFECT
The rights, benefits, duties and obligations under this Agreement
shall inure to, and be binding upon, the Corporation, its successors and
assigns, and upon the Consultant and his legal representatives. This Agreement
constitutes a personal service agreement, and the performance of the
Consultant's obligations hereunder may not be transferred or assigned by the
Consultant.
10. NON-WAIVER
The failure of either party to insist upon the strict performance of
any of the terms, conditions and provisions of this Agreement shall not be
construed as a waiver or relinquishment of future compliance therewith, and said
terms, conditions and provisions shall remain in full force and effect. No
waiver of any term or condition of this Agreement on the part of either party
shall be effective for any purpose whatsoever unless such waiver is in writing
and signed by such party.
11. GOVERNING LAW
This Agreement shall be governed under New York law without regard to
principles of conflicts of law. Any disputes shall be resolved in the state or
federal courts located in New York County.
12. HEADINGS
The headings of paragraphs are inserted for convenience and shall not
affect any interpretation of this Agreement.
13. ATTORNEYS FEES, COSTS
In the event a party breaches this Agreement, the breaching party
shall pay all costs and attorneys' fees incurred by the other party in
connection with such breach, whether or not any litigation is commenced.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
NETLIVE COMMUNICATIONS, INC.
By: /s/Michael Kharitonov
-----------------------
Michael Kharitonov
Chairman of the Board
Dated: June 12, 1997
LAURENCE ROSEN
/s/Laurence Rosen
-----------------------
Laurence Rosen, Individually
Dated: June 12, 1997
6
<PAGE>
Exhibit C
---------
RELEASE
-------
Laurence Rosen, including his successors and assigns
(collectively, the "Employee"), hereby releases NetLive,
Communications, Inc. ("NetLive"), including its officers, directors,
shareholders, employees, agents and affiliates (collectively, the
"Company"), from any and all claims, causes of actions, suits, debts,
obligations, promises and demands of any kind, whether legal or
equitable, which the Employee may have against the Company, arising at
any time in the past through the time of execution of this Release;
provided, however, that the following shall be preserved and excluded
from the foregoing Release: (i) any rights of Laurence Rosen under the
Severance Agreement between NetLive and Laurence Rosen dated June 12,
1997 or any agreement executed simultaneous therewith; and (ii) any
claims, causes of actions, suits, debts, obligations, promises and
demands of any kind, whether legal or equitable, which the Employee
may have against NetLive, arising at any time in the past through the
time of execution of this Release arising out of any events or
conditions that were not known or should not have been known through
the exercise of reasonable diligence, at the time of execution of this
Release, by Laurence Rosen.
/s/ Laurence Rosen
- ----------------------
Laurence Rosen
Sworn to before me this
12th day of June, 1997
/s/ Stewart L. Sheftel STEWART L. SHEFTEL
- ---------------------- Notary Public, State of New York
Notary Public No. 30-4777318
Qualified in Nassau County
Commission Expires March 30, 1998
7
<PAGE>
Exhibit D
---------
RELEASE
-------
NetLive, Communications, Inc. ("NetLive"), including
its officers, directors, shareholders, employees, agents and
affiliates (collectively, the "Company"), hereby releases Laurence
Rosen, including his successors and assigns (collectively, the
"Employee") from any and all claims, causes of actions, suits, debts,
obligations, promises and demands of any kind, whether legal or
equitable, which the Company may have against Employee, arising at any
time in the past through the time of execution of this Release;
provided, however, that the following shall be preserved and excluded
from the foregoing Release: (i) any rights of NetLive under the
Severance Agreement between NetLive and Laurence Rosen dated June 12,
1997 or any agreement executed simultaneous therewith; and (ii) any
claims, causes of actions, suits, debts, obligations, promises and
demands of any kind, whether legal or equitable, which NetLive may
have against Employee, arising at any time in the past through the
time of execution of this Release arising out of any events or
conditions that were not known or should not have been known through
the exercise of reasonable diligence, at the time of execution of this
Release, by any NetLive officer or member of the NetLive Board of
Directors other than Laurence Rosen
NetLive Communications, Inc.
By:
/s/ Michael Kharitonov
- ---------------------------
Michael Kharitonov
Sworn to before me this
12th day of June, 1997
/s/ Stewart L. Sheftel STEWART L. SHEFTEL
- ---------------------- Notary Public, State of New York
Notary Public No. 30-4777318
Qualified in Nassau County
Commission Expires March 30, 1998
8
