PRIVILEGED AND CONFIDENTIAL
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EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), made and entered
into this 16th day of June, 2003, by and between Xxxxxxxx.xxx, Inc., a Delaware
corporation (the "Company"), and Xxxxx X. Xxxxxx (the "Executive").
W I T N E S S E T H
WHEREAS, the Company has a need for the Executive's personal
services in an executive capacity; and
WHEREAS, the Executive possesses the necessary strategic,
financial, planning, operational and managerial skills necessary to fulfill
those needs; and
WHEREAS, the Executive and the Company desire to enter into a
formal employment agreement to fully recognize the contributions of the
Executive to the Company and to assure continuous harmonious performance of the
affairs of the Company.
NOW, THEREFORE, in consideration of the mutual promises,
terms, provisions, and conditions contained herein, the parties agree as
follows:
1. Position.
The Company hereby agrees to employ the Executive to serve in
the role of President and Chief Executive Officer of the Company, subject to the
limitations set forth herein. As such, the Executive shall be responsible for,
and have the authority with regard to, all duties and responsibilities
commensurate with his position subject to the authority of the Board of
Directors of the Company (the "Board"). The Executive accepts such employment
upon the terms and conditions set forth herein, and further agrees to perform
the duties generally associated with his position, as well as such other duties
commensurate with his position as President and Chief Executive Officer as may
be reasonably assigned by the Board. The Executive shall, at all times during
the Term, report directly to the Board. The Executive shall perform his duties
with reasonable diligence and faithfulness and shall devote his full business
time (excluding periods of vacation and sick leave) and attention to such
duties, provided the foregoing will not prevent the Executive from (i)
participating in charitable, civic, educational, professional, community or
industry affairs or serving on the board of directors of other companies or (ii)
managing his personal business and investment activities, provided that these
activities do not materially interfere with the performance of the Executive's
duties and responsibilities hereunder or violate the provisions of Section 4, 5
or 6 of this Agreement.
For so long as the Executive remains Chief Executive Officer
or President of the Company, the Board will nominate Executive for membership to
the Board and, if elected, Executive shall serve in such capacity without
additional consideration.
2. Term of Employment and Renewal.
The term of Executive's employment under this Agreement will
commence on the date of this Agreement (the "Effective Date"). Subject to the
provisions of Section 9 of this Agreement, the term of Executive's employment
hereunder shall be for an initial term of two (2) years from the Effective Date
(the "Initial Term"). The Initial Term of this Agreement shall be automatically
extended for successive one (1) year periods (each a "Renewal Period") unless
the Company or the Executive gives written notice to the other at least sixty
(60) days prior to the expiration of the Initial Term, or a Renewal Period, of
such party's election not to extend this Agreement. References herein to the
"Term" shall mean the Initial Term as it may be so extended by one or more
Renewal Periods. The last day of the Term is the "Expiration Date."
3. Compensation and Benefits.
(a) Salary. Commencing on the Effective Date, the Company
agrees to pay the Executive a base salary at an annual rate of $300,000 during
the Term, payable in such installments as is the policy of the Company (as
increased from time to time, the "Salary"), but no less frequently than monthly.
Thereafter, the Board shall determine appropriate increases to Executive's
Salary but in no event shall diminish the amount of Executive's Salary.
(b) Bonus. During the Term, the Executive shall be eligible to
receive annual bonuses at the discretion of the Compensation Committee of the
Board (the "Compensation Committee"), subject to the remaining provisions of
this Section 3(b); provided that the Executive's annual bonus for each year
during the Term will be no less than $100,000 (the "Minimum Bonus") per year;
provided that for 2003, the Executive's Minimum Bonus shall be pro rated. During
the Term through the end of calendar year 2003, annual bonus amounts in excess
of the Minimum Bonus shall be determined in accordance with terms established by
the Compensation Committee. During the Term after calendar year 2003, the
Executive shall be eligible to receive annual bonuses equal to three percent
(3%) of the Company's EBIT (as defined on Schedule A) between $7 million and $25
million with respect to the applicable calendar year and five percent (5%) of
the Company's EBIT in excess of $25 million with respect to the applicable
calendar year. In the event of any corporate transaction, such as any merger,
acquisition, consolidation, separation, including a spin-off, or other
distribution of stock or property of the Company (including any extraordinary
cash or stock dividend), any reorganization (whether or not such reorganization
comes within the definition of such term in Section 368 of the Code), the
Compensation Committee shall have the authority to limit the Executive's annual
bonus to $1 million per year.
(c) Benefits. During the Term, the Executive shall be entitled
to participate in all employee benefit plans which the Company provides or may
establish from time to time for the benefit of its employees generally,
including to the extent established, without limitation, group life, medical,
surgical, dental and other health insurance, short and long-term disability,
deferred compensation, profit-sharing, vacation and similar plans, under the
terms and conditions of the applicable plans and/or policies, but not including
severance and retention plans. The Company may purchase one or more "key man"
insurance policies on the Executive's life, each of which will be payable to and
owned by the Company. The Company, in its sole discretion, may select the amount
and type of key man life insurance purchased, and the Executive will have no
interest in any such policy. The Executive will cooperate with the Company in
securing this key man insurance, by submitting to all required medical
examinations, supplying all information and executing all documents required in
order for the Company to secure the insurance.
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(d) Stock Options.
(i) Initial Option Grant.
(a) Option Grant. On the earliest of (1) immediately following
the adjustment of the Company's stock options generally after engaging in one or
more special distributions on its common stock totaling at least $120 million in
the aggregate (the "Special Distribution"), (2) immediately prior to the
Company's announcement of the details of the timing and method of a stock
repurchase or redemption of its common stock totaling at least $120 million in
the aggregate (the "Redemption"), (3) immediately prior to the announcement of a
transaction involving the Company that would result in a Change in Control of
the Company under clause (a) or clause (c) of the definition of Change in
Control set forth on Exhibit A of the Company's Change in Control Severance
Program (a "Change in Control"), or (4) December 31, 2003, the Compensation
Committee shall grant the Executive, pursuant to the Company's 2000 Stock
Option/Stock Issuance Plan (the "Plan"), and under the terms and conditions set
forth in the Company's standard Notice of Grant of Stock Options (as modified by
this Agreement), and the exhibits thereto, an option (the "Stock Option) to
purchase a number of shares of the Company's common stock (the "Option Shares")
equal to 1.375 percent of the sum of (x) the total number of issued and
outstanding shares of the Company's common stock as of the date of grant and (y)
the total number of shares of the Company's common stock subject to warrants
(but not employee or director stock options) as of the date of grant (the "Total
Shares"), provided that in the event that the Stock Option is granted pursuant
to clause (2) of this Section 3(d)(i)(a), the number of Option Shares shall be
equal to 1.375 percent of the Total Shares minus the number of shares of Company
common stock that the Company reasonably expects will be redeemed or repurchased
pursuant to the Redemption. Only one stock option grant shall be made to the
Executive pursuant to this Section 3(d)(i)(a).
(b) Exercise Price. The per share exercise price of the Stock
Option shall equal the Fair Market Value (as defined in the Plan) on the date of
grant, except that (i) in the event of a Special Distribution, the per share
exercise price of the Stock Option shall be the Fair Market Value on the first
full day of trading following the Company's announcement of the details of the
timing and method of the Special Distribution reduced on a per share basis by
the quotient obtained by dividing (x) the total amount of cash distributed
pursuant to the Special Distribution by (y) the Total Shares, (ii) in the event
of a Redemption, the per share exercise price of the Stock Option shall be the
Fair Market Value on the first full day of trading following the Company's
announcement of the details of the timing and method of the Redemption and (iii)
in the event of a Change in Control, the per share exercise price of the Stock
Option shall be the Fair Market Value on the first full day of trading
immediately prior to the date of grant.
(c) Option Vesting. Commencing on the six month anniversary of
the Effective Date, 1/30th of the total number of Option Shares subject to the
Stock Option shall vest and become exercisable each month. Notwithstanding the
foregoing, to the extent then unvested, the Stock Option shall immediately vest
and become fully exercisable upon the termination of the Executive's employment
without Cause or for Good Reason or upon the Expiration Date, in the event that
the Company gives notice of its election not to extend the Term of the Agreement
for a Renewal Period pursuant to Section 2 above.
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(d) Other Option Terms. The Stock Option shall, to the maximum
extent permitted by applicable law, be designated as an incentive stock option
within the meaning of Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code") and to the extent not allowable, the Stock Option shall be
a non-qualified stock option. To the extent that the Stock Option is a
non-qualified stock option, the Executive shall be permitted to transfer the
Stock Option to his immediate family members, trusts (the beneficiaries of which
are exclusively such family members), family partnerships or, subject to the
approval of the Compensation Committee, other persons.
(e) Specified Transaction. Notwithstanding any provision of
this Section 3(d)(i) to the contrary, in the event that, within three months
after the Effective Date, the Company announces that it has entered into an
agreement to enter into a corporate transaction with any entity with which the
Company entered into a confidentiality agreement during the week of March 12,
2003 (a "Specified Transaction"), the Executive shall not be entitled to the
Stock Option.
(ii) Eligibility for Annual Option Grants. In addition to
the Stock Option grant described herein, at the sole discretion of the
Compensation Committee, the Executive shall be eligible for additional annual
grants of stock options.
(e) Expenses. The Company shall pay or reimburse the Executive
for all reasonable out-of-pocket expenses actually incurred by him during the
Term in performing services hereunder, provided that the Executive properly
accounts for such expenses in accordance with the Company's policies.
(f) Vacation. The Executive shall be entitled to an annual
paid vacation in accordance with the Company's policy applicable to senior
executives, but in no event less than four (4) weeks per calendar year (as
prorated for partial years) and which may be accrued from year-to-year.
(g) Perquisites. The Company shall provide to the Executive,
at the Company's cost, all perquisites which other senior executives of the
Company are entitled to receive generally and, at a minimum, all perquisites
that the Executive is receiving as of the Effective Date; provided, that in any
event the Executive shall be entitled to perquisites with a minimum value of
$20,000 per annum.
(h) Tax and Financial Planning. The Company shall reimburse
the Executive for reasonable expenses incurred by the Executive in connection
with obtaining professional tax and financial planning advice.
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(i) Secretarial Support. The Executive's assistant at the
Company may assist the Executive in the execution of such reasonable duties as
the Executive may assign such assistant from time to time. Subject to the
Executive's compliance with the provisions of Sections 4, 5 and 6, the Executive
shall be entitled (a) for one month following the termination of the Executive's
employment for any reason other than Cause, to continued use of the Executive's
office (or reasonably comparable office) and assistant and (b) for one year
following the termination of the Executive's employment for any reason other
than Cause, to have electronic mail that was sent to his Company electronic mail
address forwarded to a personal electronic mail address established by the
Executive, provided that the Company shall not be required to forward the
Executive any Company-related electronic mail distributions or electronic mails
that might contain Confidential Information (as defined below).
4. Confidentiality, Disclosure of Information.
(a) The Executive recognizes and acknowledges that the
Executive has had and will have access to Confidential Information (as defined
below) relating to the business or interests of the Company or of persons with
whom the Company may have business relationships. Except as permitted herein,
the Executive will not during the Term, or at any time thereafter, use or
disclose any Confidential Information of the Company (except as required by
applicable law or in connection with the performance of the Executive's duties
and responsibilities hereunder). The term "Confidential Information" means
information relating to the Company's business affairs, proprietary technology,
trade secrets, patented processes, research and development data, know-how,
market studies and forecasts, competitive analyses, pricing policies, employee
lists, employment agreements (other than this Agreement), personnel policies,
the substance of agreements with customers, suppliers and others, marketing
arrangements, customer lists, commercial arrangements or any other information
relating to the Company's business that is not generally known to the public or
to actual or potential competitors of the Company (other than through a breach
of this Agreement). This obligation shall continue until such Confidential
Information becomes publicly available or known in the Company's industry, other
than pursuant to a breach of this Section 4 by the Executive, regardless of
whether the Executive continues to be employed by the Company.
(b) It is further agreed and understood by and between the
parties to this Agreement that all "Company Materials," which include, but are
not limited to, computers, computer software, computer disks, tapes, printouts,
source, HTML and other code, flowcharts, schematics, designs, graphics,
drawings, photographs, charts, graphs, notebooks, customer lists, sound
recordings, other tangible or intangible manifestation of content, and all other
documents whether printed, typewritten, handwritten, electronic, or stored on
computer disks, tapes, hard drives, or any other tangible medium, as well as
samples, prototypes, models, products and the like, shall be the exclusive
property of the Company and, upon termination of Executive's employment with the
Company (or, in the event that the Executive continues as a director of the
Company, upon ceasing to be a director of the Company), and/or upon the request
of the Company, all Company Materials, including copies thereof, as well as all
other Company property then in the Executive's possession or control, shall be
returned to and left with the Company. Notwithstanding the foregoing, the
Executive may retain (i) a copy of his rolodex and similar phone or electronic
directories (collectively, the "Rolodex") to the extent such Rolodex does not
contain information other than name, address, telephone number and similar
information, (ii) copies of such other books and marketing materials used by the
Executive in the performance of his duties hereunder, and (iii) any computers
used by the Executive in the performance of his duties hereunder, provided that
the Company shall retain sole ownership of the original Rolodex, books and
marketing materials, and provided, further, that the Executive provides the
Company with all business-related data stored on such computer(s). For purposes
of Sections 4, 5 and 6, "Company" shall include the Company's subsidiaries.
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5. Inventions Discovered by Executive.
The Executive shall promptly disclose to the Company any
invention, improvement, discovery, process, formula, or method or other
intellectual property, whether or not patentable or copyrightable (collectively,
"Inventions"), conceived or first reduced to practice by the Executive, either
alone or jointly with others, while performing services hereunder (or, if based
on any Confidential Information, at any time after the Term), (a) which pertain
to any line of business activity of the Company, whether then conducted or then
being actively planned by the Company, with which the Executive was or is
involved, (b) which is developed using time, material or facilities of the
Company, whether or not during working hours or on the Company premises, or (c)
which directly relates to any of the Executive's work during the Term, whether
or not during normal working hours. The Executive hereby assigns to the Company
all of the Executive's right, title and interest in and to any such Inventions.
During and after the Term, the Executive shall execute any documents necessary
to perfect the assignment of such Inventions to the Company and to enable the
Company to apply for, obtain and enforce patents, trademarks and copyrights in
any and all countries on such Inventions, including, without limitation, the
execution of any instruments and the giving of evidence and testimony, without
further compensation beyond the Executive's agreed compensation during the
course of the Executive's employment. Without limiting the foregoing, the
Executive further acknowledges that all original works of authorship by the
Executive, whether created alone or jointly with others, related to the
Executive's employment with the Company and which are protectable by copyright,
are "works made for hire" within the meaning of the United States Copyright Act,
17 U.S.C. xx.xx. 101, as amended, and the copyright of which shall be owned
solely, completely and exclusively by the Company. If any Invention is
considered to be work not included in the categories of work covered by the
United States Copyright Act, 17 U.S.C. xx.xx. 101, as amended, such work is
hereby assigned or transferred completely and exclusively to the Company. The
Executive hereby irrevocably designates counsel to the Company as the
Executive's agent and attorney-in-fact to do all lawful acts necessary to apply
for and obtain patent; and copyrights and to enforce the Company's rights under
this Section. This Section 5 shall survive the termination of this Agreement.
Any assignment of copyright hereunder includes all rights of paternity,
integrity, disclosure and withdrawal and any other rights that may be known as
or referred to as "moral rights" (collectively "Moral Rights"). To the extent
such Moral Rights cannot be assigned under applicable law and to the extent the
following is allowed by the laws in the various countries where Moral Rights
exist, the Executive hereby waives such Moral Rights and consents to any action
of the Company that would violate such Moral Rights in the absence of such
consent. The Executive agrees to confirm any such waivers and consents from time
to time as requested by the Company.
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6. Non-Competition and Non-Solicitation.
The Executive acknowledges that the Company has invested
substantial time, money and resources in the development and retention of its
Inventions, Confidential Information (including trade secrets), customers,
accounts and business partners, and further acknowledges that during the course
of the Executive's employment with the Company the Executive has had and will
have access to the Company's Inventions and Confidential Information (including
trade secrets), and will be introduced to existing and prospective customers,
accounts and business partners of the Company. The Executive acknowledges and
agrees that any and all "goodwill" associated with any existing or prospective
customer, account or business partner belongs exclusively to the Company,
including, but not limited to, any goodwill created as a result of direct or
indirect contacts or relationships between the Executive and any existing or
prospective customers, accounts or business partners. Additionally, the parties
acknowledge and agree that Executive possesses skills that are special, unique
or extraordinary and that the value of the Company depends upon his use of such
skills on its behalf.
In recognition of this, the Executive covenants and agrees
that:
(a) During the Executive's employment with the Company and for
a period of one (1) year thereafter, the Executive may not, without the prior
written consent of the Board (whether as an employee, agent, servant, owner,
partner, consultant, independent contractor, representative, stockholder or in
any other capacity whatsoever): (i) conduct any business with any customer of
the Company on behalf of any entity or person other than the Company (including
the Executive) if such business is competitive with the products or services
offered by the Company, or (ii) perform any work competitive in any way with the
products or services offered or planned to be brought to market by the Company
during the Term or within one (1) year thereafter, on behalf of any entity or
person other than the Company (including the Executive), provided that nothing
herein shall prohibit the Executive from owning up to 5% of the securities of
any company or venture fund, mutual fund or other similar investment vehicle as
to which the Executive does not control or influence investment decisions, and
provided that nothing herein shall prohibit the Executive from making other
personal investments that otherwise might violate this sub-Section with the
prior approval of the Board.
(b) During the Executive's employment with the Company (except
as requested in connection with the performance of the Executive's duties and
responsibilities hereunder) and for a period of one (1) year thereafter, the
Executive may not entice, solicit or encourage any Company employee to leave the
employ of the Company or any independent contractor to sever its engagement with
the Company, absent prior written consent to do so from the Board.
(c) During the Executive's employment with the Company (except
in the good faith performance of the Executive's duties hereunder) and for a
period of one (1) year thereafter, the Executive may not, directly or
indirectly, entice, solicit or encourage any customer or prospective customer of
the Company to cease doing business with the Company, or reduce its relationship
with the Company or refrain from establishing or expanding a relationship with
the Company.
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7. Provisions Necessary and Reasonable.
The Executive agrees that (i) the provisions of Sections 4, 5,
and 6 of this Agreement are necessary and reasonable to protect the Company's
Confidential Information, Inventions, and goodwill; (ii) the specific temporal,
geographic and substantive provisions set forth in Section 6 of this Agreement
are reasonable and necessary to protect the Company's business interests; and
(iii) in the event of any breach of any of the covenants set forth herein, the
Company would suffer substantial irreparable harm and would not have an adequate
remedy at law for such breach. In recognition of the foregoing, the Executive
agrees that in the event of a breach or threatened breach of any of these
covenants, in addition to such other remedies as the Company may have at law,
without posting any bond or security, the Company shall he entitled to seek and
obtain equitable relief, in the form of specific performance, and/or temporary,
preliminary or permanent injunctive relief, or any other equitable remedy which
then may be available. The seeking of such injunction or order shall not affect
the Company's right to seek and obtain damages or other equitable relief on
account of any such actual or threatened breach.
(a) If any of the covenants contained in Sections 4, 5, and 6
hereof, or any part thereof, are hereafter construed to be invalid or
unenforceable, the same shall not affect the remainder of the covenant or
covenants, which shall be given full effect without regard to the invalid
portions.
(b) If any of the covenants contained in Sections 4, 5, and 6
hereof, or any part thereof, are held to be unenforceable by a court of
competent jurisdiction because of the temporal or geographic scope of such
provision or the area covered thereby, the parties agree that the court making
such determination shall have the power to reduce the duration and/or geographic
area of such provision and, in its reduced form, such provision shall be
enforceable.
8. Representations Regarding Prior Work and Legal Obligations.
(a) The Executive represents that the Executive has no
agreement or other legal obligation with any prior employer, or any other person
or entity, that restricts the Executive's ability to accept employment with, or
to perform any function for, the Company.
(b) The Executive has been advised by the Company that at no
time should the Executive divulge to or use for the benefit of the Company any
trade secret or confidential or proprietary information of any previous employer
nor shall the Company require the Executive to divulge any such information. The
Executive expressly acknowledges that the Executive has not divulged or used any
such information for the benefit of the Company.
9. Termination and Severance.
Notwithstanding the provisions of Section 2 of this Agreement,
the Executive's employment hereunder may terminate under the following
circumstances:
(a) Termination by the Company for Cause. The Company may
terminate this Agreement for Cause at any time, within ninety (90) days of the
Board's discovery of the Cause event, upon written notice to the Executive
setting forth in reasonable detail the nature of such Cause. For purposes of
this Agreement, Cause is defined as (i) the Executive's willful and material
breach of the terms of this Agreement, unless any such breach is susceptible to
cure and is corrected within thirty (30) days following written notice by the
Company specifying the details thereof; or (ii) the Executive's conviction of,
or plea of guilty or nolo contendere to, any felony; or (iii) gross negligence
or willful misconduct by the Executive having a material adverse impact on the
Company; or (iv) the Executive's willful refusal to attempt to perform his job
duties (other than due to Disability, as defined below, or an approved leave)
after his receipt of written notice from the Board; or (v) the Executive's
material breach of a Company policy, unless any such breach is susceptible to
cure and is corrected within thirty (30) days following written notice by the
Company specifying the details thereof. Upon the termination for Cause of the
Executive's employment, the Company shall have no further obligation or
liability to the Executive other than for unpaid Salary earned under this
Agreement prior to the date of termination, and any accrued but unused vacation.
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(b) Termination by the Company Without Cause. The Executive's
employment hereunder may be terminated without Cause by the Company upon written
notice to the Executive, provided, however, that if the Company terminates the
Executive's employment without Cause, or the Executive terminates his employment
for Good Reason, as defined below, the Company shall pay or provide the
Executive with: (i) within thirty (30) days following the date of termination,
(A) unpaid Salary earned under this Agreement prior to the date of termination
and any accrued but unused vacation; (B) any unpaid bonus accrued with respect
to the fiscal year ending on or preceding the date of termination; (C) an amount
equal to the product of (1) the Executive's Minimum Bonus and (2) a fraction,
the numerator of which is the number of days from the commencement of the bonus
period or, if later, the commencement of the Executive's employment with the
Company, until the Executive's termination of employment and the denominator of
which is the total number of days in the bonus period; (D) reimbursement for any
unreimbursed business expenses incurred by the Executive through the date of
termination; (collectively, (A) through (D), "Accrued Obligations") and (E) a
lump sum cash payment equal to the product of (1) one twelfth (1/12th) of the
Executive's Salary (or, if improperly reduced, the Salary required to be in
effect) and (2) the number of months remaining in the Term or twelve (12)
months, whichever is greater; (ii) all stock option or equity grants held by the
Executive shall vest in full as of the date of termination so as to become fully
exercisable and shall remain exercisable for six (6) months (or the end of
scheduled term if sooner) following the date of termination; and (iii) the
Company shall provide medical and dental benefits for the Executive (and
eligible dependents) under COBRA upon the same terms and conditions in effect on
the date of termination for the eighteen (18) month period following the date of
termination, provided that, to the extent the Executive incurs tax that he would
not have incurred as an active employee as a result of the aforementioned
coverage or the benefits provided hereunder, the Executive shall receive from
the Company an additional payment in the amount necessary so that the Executive
will have no additional cost for receiving such items or any additional payment,
provided that in the event that the Executive's employment is terminated by the
Company without Cause or the Executive resigns for Good Reason during the
three-month period immediately following consummation of a Specified
Transaction, the Executive shall only be entitled to the Accrued Obligations and
shall not be entitled to any additional compensation or benefits or severance
payments or benefits hereunder. As a condition of receiving severance benefits
pursuant to this Agreement, the Executive shall execute and deliver to the
Company prior to his receipt of such benefits a general release substantially in
the form attached hereto as Exhibit B.
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(c) Termination by the Executive. The Executive may terminate
his employment hereunder upon one (1) month's written notice to the Company,
provided, however, that the Company may pay the Executive his Salary in lieu of
any part of such notice. The Executive may also terminate his employment
hereunder for "Good Reason," within ninety (90) days of the occurrence of any of
the following events, without the written consent of the Executive, (i) a
material breach of this Agreement by the Company, including, but not limited to,
any reduction of any part of the Executive's compensation (including Salary and
bonus opportunity) or benefits or any failure to timely pay any part of the
Executive's compensation (including Salary and bonus) or to provide the benefits
contemplated herein; (ii) a change in the Executive's reporting relationship so
that he no longer reports directly to the Board; (iii) any material reduction or
diminution (except temporarily during any period of physical or mental
impairment) in the Executive's titles, positions, authorities, duties or
responsibilities with the Company; (iv) the failure for any reason of the
Compensation Committee to grant the Stock Option on the terms set forth in this
Agreement; or (v) the failure of the Company to obtain and deliver to the
Executive a satisfactory written agreement from any successor to the Company to
assume and agree to perform this Agreement. The Executive shall give the Company
thirty (30) days, written notice and opportunity to cure prior to any
termination for Good Reason based on the grounds specified herein.
(d) Death. In the event of the Executive's death during the
Term of this Agreement, the Executive's employment hereunder shall immediately
and automatically terminate, and the Company shall have no further obligation or
duty to the Executive or his estate or beneficiaries other than the Accrued
Obligations.
(e) Disability. The Company may terminate the Executive's
employment hereunder, upon written notice to the Executive, in the event that
the Executive becomes disabled during the Term through any condition of either a
physical or psychological nature and, as a result, is, with reasonable
accommodation, unable to perform the essential functions of the services
contemplated hereunder for (a) a period of ninety (90) consecutive days, or (b)
for shorter periods aggregating one hundred twenty (120) days during any twelve
(12) month period during the Term. Any such termination shall become effective
upon mailing or hand delivery of notice while Executive continues to be unable
to perform the essential functions of the services contemplated hereunder that
the Company has elected its right to terminate under this subsection 9(e), and
the Company shall have no further obligation or duty to the Executive other than
for the Accrued Obligations. For purposes of determining the Executive's
entitlement to the benefits provided for in this sub-Section only, the existence
or nonexistence of a disability shall be determined by a physician to be
selected by the Executive and the Company in good faith.
(f) Effect of Non-Renewal. In the event that the Company gives
notice of its election not to extend the Term of the Agreement for a Renewal
Period pursuant to Section 2 above, the Company (i) shall continue to pay the
Executive full compensation as defined in Section 3 of this Agreement from the
date the Executive receives such notice through the Expiration Date, (ii) shall
provide the Executive the Accrued Obligations, (iii) shall fully vest the
Executive in the Stock Option on the Expiration Date and the Stock Option shall
remain exercisable for a period of six months following the Expiration Date (or
the end of the scheduled term, if sooner) and (iv) shall have no other
obligations to the Executive.
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(g) No Mitigation/No Offset. The Executive shall not be
required to seek other employment or otherwise mitigate the value of any
severance benefits contemplated by this Agreement, nor shall any such benefits
be reduced by any earnings or benefits that Executive may receive from any other
source or by any damages claimed by the Company (other than for agreed-upon
debts or for damages arising out of embezzlement or similar malfeasance by the
Executive).
(h) Excise Tax. In the event that the Executive becomes
entitled to payments and/or benefits which would constitute "parachute payments"
within the meaning of Section 28OG(b)(2) of the Code, the provisions of Exhibit
A shall apply.
(i) Employee Benefits. Upon any termination of employment, the
Executive shall also be entitled to any payments or benefits due under any
Company benefit plans.
10. Choice of Law.
The Executive acknowledges that a substantial portion of the
Company's business is based out of and directed from the State of New York. The
Executive also acknowledges that during the course of the Executive's employment
with the Company the Executive will have substantial contacts with New York.
The validity, interpretation and performance of this Agreement
shall be governed by, and construed in accordance with, the internal law of New
York, without giving effect to conflict of law principles. Both parties agree
that the exclusive venue for any action, demand, claim or counterclaim relating
to the terms and provisions of Sections 4, 5, and 6 of this Agreement, or to
their breach, shall be in the state or federal courts located in the State and
City of New York and that such courts shall have personal jurisdiction over the
parties to this Agreement.
11. Miscellaneous.
(a) Assignment. The Executive acknowledges and agrees that the
rights and obligations of the Company under this Agreement may be assigned by
the Company to any successors in interest but not otherwise, provided such
successor in interest assumes all of the obligations hereunder of the Company in
a writing delivered to the Executive and otherwise complies with the provisions
hereof with regard to such assumption. The Executive further acknowledges and
agrees that this Agreement is personal to the Executive and that the Executive
may not assign any rights or obligations hereunder.
(b) Withholding. All amounts paid or benefits provided to the
Executive under this Agreement shall be subject to applicable withholding taxes.
(c) Entire Agreement. This Agreement and the Notice of Grant
of Stock Options set forth the entire agreement between the parties on the
subject matter contained herein and supersede any prior communications,
agreements and understandings, written or oral, with respect to the terms and
conditions of the Executive's employment.
-11-
(d) Amendments. Any attempted modification of this Agreement
will not be effective unless signed by an officer of the Company and the
Executive.
(e) Waiver of Breach. The Executive understands that a breach
of any provision of this Agreement may only be waived by an officer of the
Company. The waiver by either party of a breach by the other party of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach by such other party.
(f) Severability. If any provision of this Agreement should,
for any reason, be held invalid or unenforceable in any respect by a court of
competent jurisdiction, then the remainder of this Agreement, and the
application of such provision in circumstances other than those as to which it
is so declared invalid or unenforceable, shall not be affected thereby, and each
such provision of this Agreement shall be valid and enforceable to the fullest
extent permitted by law.
(g) Notices. Any notices, requests, demands and other
communications provided for by this Agreement shall be in writing and shall be
effective when delivered by private messenger, private overnight mail service,
or facsimile as follows (or to such other address as either party shall
designate by notice in writing to the other in accordance herewith):
If to the Company:
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel
Fax: (000) 000-0000
With a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxx
If to the Executive:
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
(h) Survival. The Executive and the Company agree that certain
provisions of this Agreement shall survive the expiration or termination of this
Agreement and the termination of the Executive's employment with the Company.
Such provisions shall be limited to those within this Agreement which, by their
express and implied terms, obligate either party to perform beyond the
termination of the Executive's employment or termination of this Agreement.
-12-
(i) Arbitration of Disputes. Any controversy or claim arising
out of this Agreement or any aspect of the Executive's relationship with the
Company including the cessation thereof (other than disputes with respect to
alleged violations of the covenants contained in Sections 4, 5, or 6 hereof,
which shall be resolved as set forth in Section 10 hereof) shall be resolved
exclusively by arbitration in accordance with the then existing National Rules
for the Resolution of Employment Disputes of the American Arbitration
Association, in New York, New York, and judgment upon the award rendered may be
entered in any court having jurisdiction thereof. The Company shall pay all
costs of the American Arbitration Association and the arbitrator. The parties
agree that the award of the arbitrator shall be final and binding.
(j) Legal Fees.
(i) The judge or arbitrator in any proceeding or
arbitration arising out of this Agreement may award the prevailing party such
party's reasonable legal fees and costs.
(ii) The Company shall pay the reasonable legal fees and
costs incurred by the Executive in connection with the negotiation and
preparation of this Agreement upon the presentation of invoices in appropriate
form in an amount not to exceed $10,000.
(k) Rights of Other Individuals. This Agreement confers rights
solely on the Executive and the Company. This Agreement is not a benefit plan
and confers no rights on any individual or entity other than the undersigned,
except as set forth in Section 9(d).
(l) Headings. The parties acknowledge that the headings in
this Agreement are for convenience of reference only and shall not control or
affect the meaning or construction of this Agreement.
(m) Advice of Counsel. The Executive and the Company hereby
acknowledge that each party has had adequate opportunity to review this
Agreement, to obtain the advice of counsel with respect to this Agreement, and
to reflect upon and consider the terms and conditions of this Agreement. The
parties further acknowledge that each party fully understands the terms of this
Agreement and has voluntarily executed this Agreement.
(n) Insurance. The Company will cover the Executive under
directors' and officers' liability insurance in the same amount and to the same
extent as the Company covers its other officers and directors.
-13-
IN WITNESS WHEREOF, the undersigned have duly executed this
Agreement as of the day and year set forth below.
EXECUTIVE XXXXXXXX.XXX, INC.
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxxx X. Xxxxx
-------------------------- ----------------------------
Title: Chairman
----------------------------
Dated: June 16, 2003 Dated: June 16, 2003
----------------- ----------------------------
-14-
EXHIBIT A
GOLDEN PARACHUTE PROVISIONS
(a) Anything in this Agreement to the contrary notwithstanding
and except as set forth below, in the event it shall be determined that any
Payment would be subject to the Excise Tax, then the Executive shall be entitled
to receive an additional payment (the "Gross-Up Payment") in an amount such
that, after payment by the Executive of all taxes (and any interest or penalties
imposed with respect to such taxes), including, without limitation, any income
taxes (and any interest and penalties imposed with respect thereto) and Excise
Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the
Gross-Up Payment equal to the Excise Tax imposed upon the Payments.
Notwithstanding the foregoing provisions of this paragraph (a), if it shall be
determined that the Executive is entitled to the Gross-Up Payment, but that the
Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount,
then no Gross-Up Payment shall be made to the Executive and the amounts payable
under this Agreement shall be reduced so that the Parachute Value of all
Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the
amounts payable hereunder, if applicable, shall be made by first reducing the
payments under Section 9(b)(i)(E) of this Agreement, unless an alternative
method of reduction is elected by the Executive, and in any event shall be made
in such a manner as to maximize the Value of all Payments actually made to the
Executive. For purposes of reducing the Payments to the Safe Harbor Amount, only
amounts payable under this Agreement (and no other Payments) shall be reduced.
If the reduction of the amount payable under this Agreement would not result in
a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, no
amounts payable under the Agreement shall be reduced pursuant to this paragraph
(a). The Company's obligation to make Gross-Up Payments under this Exhibit A
shall not be conditioned upon the Executive's termination of employment.
(b) Subject to the provisions of paragraph (c), all
determinations required to be made under this Exhibit A, including whether and
when a Gross-Up Payment is required, the amount of such Gross-Up Payment and the
assumptions to be utilized in arriving at such determination, shall be made by
PricewaterhouseCoopers LLP, to the extent permitted by applicable law, or such
other nationally recognized certified public accounting firm as may be
designated by the Executive (the "Accounting Firm"). The Accounting Firm shall
provide detailed supporting calculations both to the Company and the Executive
within 15 business days of the receipt of notice from the Executive that there
has been a Payment or such earlier time as is requested by the Company. In the
event that the Accounting Firm is serving as accountant or auditor for the
individual, entity or group effecting the Change of Control, the Executive may
appoint another nationally recognized accounting firm to make the determinations
required hereunder (which accounting firm shall then be referred to as the
Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall
be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to
this Exhibit A, shall be paid by the Company to the Executive within 5 days of
the receipt of the Accounting Firm's determination. Any determination by the
Accounting Firm shall be binding upon the Company and the Executive. As a result
of the uncertainty in the application of Section 4999 of the Code at the time of
the initial determination by the Accounting Firm hereunder, it is possible that
Gross-Up Payments that will not have been made by the Company should have been
made (the "Underpayment"), consistent with the calculations required to be made
hereunder. In the event the Company exhausts its remedies pursuant to paragraph
(c) and the Executive thereafter is required to make a payment of any Excise
Tax, the Accounting Firm shall determine the amount of the Underpayment that has
occurred and any such Underpayment shall be promptly paid by the Company to or
for the benefit of the Executive.
A-1
(c) The Executive shall notify the Company in writing of any
claim by the Internal Revenue Service that, if successful, would require the
payment by the Company of the Gross-Up Payment. Such notification shall be given
as soon as practicable, but no later than 10 business days after the Executive
is informed in writing of such claim. The Executive shall apprise the Company of
the nature of such claim and the date on which such claim is requested to be
paid. The Executive shall not pay such claim prior to the expiration of the
30-day period following the date on which the Executive gives such notice to the
Company (or such shorter period ending on the date that any payment of taxes
with respect to such claim is due). If the Company notifies the Executive in
writing prior to the expiration of such period that the Company desires to
contest such claim, the Executive shall:
(i) give the Company any information reasonably requested
by the Company relating to such claim,
(ii) take such action in connection with contesting such
claim as the Company shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with respect to
such claim by an attorney reasonably selected by the Company,
(iii) cooperate with the Company in good faith in order
effectively to contest such claim, and
(iv) permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest, and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties) imposed as a result of such representation and payment of costs and
expenses. Without limitation on the foregoing provisions of this paragraph (c),
the Company shall control all proceedings taken in connection with such contest,
and, at its sole discretion, may pursue or forgo any and all administrative
appeals, proceedings, hearings and conferences with the applicable taxing
authority in respect of such claim and may, at its sole discretion, either pay
the tax claimed to the appropriate taxing authority on behalf of the Executive
and direct the Executive to xxx for a refund or contest the claim in any
permissible manner, and the Executive agrees to prosecute such contest to a
determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that, if the Company pays such claim and directs
the Executive to xxx for a refund, the Company shall indemnify and hold the
Executive harmless, on an after-tax basis, from any Excise Tax or income tax
(including interest or penalties) imposed with respect to such payment or with
respect to any imputed income in connection with such payment; and provided,
further, that any extension of the statute of limitations relating to payment of
taxes for the taxable year of the Executive with respect to which such contested
amount is claimed to be due is limited solely to such contested amount.
Furthermore, the Company's control of the contest shall be limited to issues
with respect to which the Gross-Up Payment would be payable hereunder, and the
Executive shall be entitled to settle or contest, as the case may be, any other
issue raised by the Internal Revenue Service or any other taxing authority.
A-2
(d) If, after the receipt by the Executive of a Gross-Up
Payment or payment by the Company of an amount on the Executive's behalf
pursuant to paragraph (c), the Executive becomes entitled to receive any refund
with respect to the Excise Tax to which such Gross-Up Payment relates or with
respect to such claim, the Executive shall (subject to the Company's complying
with the requirements of paragraph (c), if applicable) promptly pay to the
Company the amount of such refund (together with any interest paid or credited
thereon after taxes applicable thereto). If a determination is made that the
Executive shall not be entitled to any refund with respect to payment by the
Company of an amount on the Executive's behalf pursuant to paragraph (c) and the
Company does not notify the Executive in writing of its intent to contest such
denial of refund prior to the expiration of 30 days after such determination,
then the amount of such payment by the Company of the amount on the Executive's
behalf shall offset, to the extent thereof, the amount of Gross-Up Payment
required to be paid.
(e) Notwithstanding any other provision of this Exhibit A, the
Company may, in its sole discretion, withhold and pay over to the Internal
Revenue Service or any other applicable taxing authority, for the benefit of the
Executive, all or any portion of any Gross-Up Payment, and the Executive hereby
consents to such withholding.
(f) Definitions. The following terms shall have the following
meanings for purposes of this Exhibit A.
1. "Excise Tax" shall mean the excise tax imposed by Section
4999 of the Code, together with any interest or penalties imposed with respect
to such excise tax.
2. "Parachute Value" of a Payment shall mean the present value
as of the date of the change of control for purposes of Section 280G of the Code
of the portion of such Payment that constitutes a "parachute payment" under
Section 280G(b)(2), as determined by the Accounting Firm for purposes of
determining whether and to what extent the Excise Tax will apply to such
Payment.
3. A "Payment" shall mean any payment or distribution in the
nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to
or for the benefit of the Executive, whether paid or payable pursuant to this
Agreement or otherwise.
4. The "Safe Harbor Amount" means 2.99 times the Executive's
"base amount," within the meaning of Section 280G(b)(3) of the Code.
5. "Value" of a Payment shall mean the economic present value
of a Payment as of the date of the change of control for purposes of Section
280G of the Code, as determined by the Accounting Firm using the discount rate
required by Section 280G(d)(4) of the Code.
A-3
EXHIBIT B
SEPARATION AGREEMENT
AND GENERAL RELEASE
This Separation Agreement and General Release ("Agreement") is
made and entered into this _____ day of _____, _____, by and between [COMPANY
NAME] (hereinafter the "Company" or "Employer") and [EMPLOYEE NAME] ("Employee")
(hereinafter collectively referred to as the "Parties"), and is made and entered
into with reference to the following facts.
RECITALS
WHEREAS, Employee was hired by the Company on or about
__________, as a __________; and
WHEREAS, the Company and Employee have agreed to terminate
their employment relationship effective _____, _____; and
WHEREAS, the Parties each desire to resolve any potential
disputes which exist or may exist arising out of Employee's employment with the
Company and/or the termination thereof.
NOW THEREFORE, in consideration of the covenants and promises
contained herein, the Parties hereto agree as follows:
AGREEMENT
1. Agreement By the Company. In exchange for Employee's
agreement to be bound by the terms of this entire Agreement, including but not
limited to the Release of Claims in paragraph 3, the Company agrees to provide
Employee with [INSERT CONSIDERATION AS PROVIDED FOR IN PARAGRAPH 9 OF THE
EMPLOYMENT AGREEMENT].
Employee acknowledges that, absent this Agreement, s/he has no
legal, contractual or other entitlement to the consideration set forth in this
paragraph and that the amount set forth in this paragraph constitute valid and
sufficient consideration for Employee's release of claims and other obligations
set forth herein.
2. Release of Claims. Employee hereby expressly waives,
releases, acquits and forever discharges the Company and its divisions,
subsidiaries, affiliates, parents, related entities, partners, officers,
directors, shareholders, investors, executives, managers, employees, agents,
attorneys, representatives, successors and assigns (hereinafter collectively
referred to as "Releasees"), from any and all claims, demands, and causes of
action which Employee has or claims to have, whether known or unknown, of
whatever nature, which exist or may exist on Employee's behalf from the
beginning of time up to and including the date of this Agreement. As used in
this paragraph, "claims," "demands," and "causes of action" include, but are not
limited to, claims based on contract, whether express or implied, fraud, stock
fraud, defamation, wrongful termination, estoppel, equity, tort, retaliation,
intellectual property, personal injury, spoliation of evidence, emotional
distress, public policy, wage and hour law, statute or common law, claims for
severance pay, claims related to stock options and/or fringe benefits, claims
for attorneys' fees, vacation pay, debts, accounts, compensatory damages,
punitive or exemplary damages, liquidated damages, and any and all claims
arising under any federal, state, or local statute, law, or ordinance
prohibiting discrimination on account of race, color, sex, age, religion, sexual
orientation, disability or national origin, including but not limited to, the
New York State Human Rights Law, the Age Discrimination in Employment Act, Title
VII of the Civil Rights Act of 1964 as amended, the Americans with Disabilities
Act, the Family and Medical Leave Act or the Employee Retirement Income Security
Act. This release shall not be effective as to any claims, demands or causes of
action arising out of acts or omissions occurring after the date of execution of
this Agreement or based on any indemnification rights of the Executive under the
Company's certificate of incorporation, by-laws or under applicable law.
B-1
3. Acceptance of Agreement/[Revocation]. This Agreement was
received by Employee on _____, _____. Employee may accept this Agreement by
returning a signed original to the Company. This Agreement shall be withdrawn if
not accepted in the above manner on or before _____. [7 days to revoke/21 day to
consider/consult with attorney]*
4. New York Law Applies. This Agreement, in all respects,
shall be interpreted, enforced and governed by and under the laws of the State
of New York. Any and all actions relating to this Agreement shall be filed and
maintained in the federal and/or state courts located in the State and County of
New York, and the parties consent to the jurisdiction of such courts. In any
action arising out of this Agreement, or involving claims barred by this
Agreement, the prevailing party shall be entitled to recover all costs of suit,
including reasonable attorneys' fees.
5. Voluntary Agreement. EMPLOYEE UNDERSTANDS AND AGREES THAT
S/HE MAY BE WAIVING SIGNIFICANT LEGAL RIGHTS BY SIGNING THIS AGREEMENT, AND
REPRESENTS THAT S/HE HAS ENTERED INTO THIS AGREEMENT KNOWINGLY AND VOLUNTARILY,
WITH A FULL UNDERSTANDING OF AND IN AGREEMENT WITH ALL OF ITS TERMS.
6. Non Disparagement. Employee agrees that Employee will not
make any public statement that is disparaging about the Company, or any of its
officers or directors, including, but not limited to, any statement that
disparages the products, services, finances, financial condition, capabilities
or other aspect of the business of the Company. The Company's directors and
senior executive officers shall not make any public statement that is
disparaging about the Executive. Nothing in this Agreement shall prohibit any
person from making truthful statements when required by order of a court or
other body having jurisdiction, or as otherwise may be required by law or under
an agreement entered into in connection with pending or threatened litigation
pursuant to which the party receiving such information agrees to keep such
information confidential.
* If Executive subject to ADEA.
B-2
IN WITNESS WHEREOF, the Parties hereto have executed this
Agreement on the dates provided below.
DATED: ____________________, _____ [COMPANY NAME]
By:
-----------------------------
Its:
-----------------------------
DATED: ____________________, _____ [EMPLOYEE NAME]
B-3
SCHEDULE A
DEFINITION OF EBIT
"EBIT" means, for any period, "income (loss) from operations" as reported in the
Company's Consolidated Statement of Operations determined in accordance with
GAAP, plus amortization of non-cash compensation expense, plus other costs and
less other gains which in the sole judgment of the Compensation Committee were
incurred or earned in connection with matters not related to the normal business
operations of the Company but which, under GAAP, are included within "income
(loss) from operations."
