EXHIBIT 10.12
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EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT, dated as of January 9, 2001 (the "Effective Date"),
is by and between XXXXXXXXX X. XXXX, residing at Xxxx, Xxxxxxxxxxx 00000 (the
"Executive") and Cyberian Outpost, Inc., a Delaware corporation with its
principal offices at 00 X. Xxxx Xxxxxx, Xxxx, Xxxxxxxxxxx 00000 (the "Company");
WHEREAS the Company wishes to continue to employ the services of the Executive
and to do so for the period and upon the terms and conditions hereinafter set
forth, and Executive desires to serve in such capacities upon the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, the Company and Executive hereby agree as follows:
1. Employment.
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(a) The Company will employ the Executive, and the Executive agrees to
be employed by the Company, as Chief Executive Officer and President of the
Company. Executive will have the responsibilities, duties and authority
commensurate with her position as Chief Executive Officer and President. In
connection with each annual meeting of stockholders of the Company during the
term of this Agreement, at which Executive's term as a director expires, the
Board of Directors of the Company will nominate Executive for election as a
member of the Board.
(b) Executive shall devote her full business time and energies to the
business and affairs of the Company; provided, however, that nothing contained
in this Paragraph 1(b) shall be deemed to prevent or limit her right to: (i)
own not more than one percent (1%) of the securities of a company that is
publicly traded on a securities exchange or over-the-counter market ( a "Public
Company"), provided that Executive does not otherwise have any relationship with
such company; (ii) make passive investments aggregating to not more than ten
percent (10%) of the securities of any entity that is not a Public Company and
is not engaged in a competing business with the Company and with respect to
which she is not obligated or required to, and which she does not in fact,
devote any substantial efforts which interfere with her fulfillment of her
duties hereunder; (iii) continue her passive investment in Xxxxxxxxx Xxxx, Ltd.,
provided she is not obligated to or required to, and she does not in fact,
devote any efforts to such entity which interfere with her fulfillment of her
duties hereunder and provided further that such entity does not provide services
to any entity which competes (as defined in paragraph 14(b) hereof) with the
Company; and (iv) subject to the prior approval of the Board of Directors of the
Company (the "Board"), to serve as a member on the Board of Directors, Board of
Trustees or other similar body of other corporations, trade associations,
professional associations or entities, provided that, in any event, Executive
may continue to serve as a member on boards of which she is currently a member,
consisting of the boards or advisory boards of Connecticut Innovation, Inc. and
Greenwood Consulting, Inc.
2. Term of Employment.
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(a) Executive's employment hereunder shall commence on the Effective
Date and continue until the second anniversary thereof, unless terminated
earlier in accordance with the terms hereof (the "Employment Term"), subject to
extension in accordance with the provisions of the following paragraph.
(b) On the two-year anniversary of the Effective Date, Executive's
employment hereunder shall be automatically extended for a period ending on the
second anniversary of such anniversary date, unless earlier terminated in
accordance with the terms hereof, and unless either Executive or the Company
shall have given written notice to the other of a desire that such automatic
extension not occur, which notice was given no later than thirty (30) days prior
to the second anniversary of the Effective Date. If either party gives such
notice and absent earlier termination in accordance with the terms hereof, the
Termination Date (as defined below) shall be the last day of the then current
Employment Term.
As used herein, "Termination Date" shall mean the last date of
Executive's employment, as determined in accordance with the terms of this
Agreement.
3. Compensation.
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(a) Base Salary. In consideration for Executive's services under this
Agreement and so long as Executive remains employed under this Agreement,
Executive will be paid (i) during the period commencing on the Effective Date
and ending on April 30, 2002, salary at an annual salary rate of Two Hundred
Twenty-five Thousand Dollars ($225,000.00) and (ii) during the twelve (12) month
period commencing May 1, 2002 and each twelve (12) month period commencing on
each May 1 thereafter during the Employment Term, at an annual salary rate as
determined by the Board or its Compensation Committee, but in any event at least
equal to the annual salary rate in effect immediately preceding the commencement
of the twelve (12) month period in question. Executive's annual salary rate in
effect from time to time is referred to herein as the "Base Salary."
Executive's Base Salary shall be paid in periodic installments at such times as
salaries are generally paid to other senior executives of the Company.
(b) Bonus Plans. In addition to Executive's Base Salary, Executive shall
be entitled to participate in any bonus plans which the Company provides or may
establish for the benefit of its senior executives pursuant to which she may be
paid any such discretionary bonus payments as the Board or its Compensation
Committee shall determine in recognition of Executive's and the Company's
performance. In accordance with this provision, the Executive may earn a bonus
of up to (i) $67,000 during the Company's fiscal year ended February 28, 2001,
and (ii) forty percent (40%) of the Base Salary during the Company's fiscal year
ended February 28, 2002, in each case payable as soon as possible after the
applicable fiscal year and to be tied to performance goals set, or to be set, by
the Compensation Committee, based on a proposal submitted, or to be submitted,
by management of the Company to the Compensation Committee.
4. Benefits and Reimbursement of Expenses.
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(a) Paid Time Off (PTO). Executive shall be entitled to twenty-five
(25) days of paid time off ("PTO") in the twelve (12) month period commencing on
the Effective Date and ending on the first anniversary thereof and each twelve
(12) month period thereafter during the Employment Term (an "Employment Year").
PTO shall be taken at such time or times reasonably calculated so as not to
interfere with the business of the Company. If Executive does not use her PTO
in any Employment Year, she may carry the unused days over from year to year on
a cumulative basis. Upon separation of employment for any reason, Executive
shall be paid for all accrued unused PTO time in her final paycheck.
(b) Employee Benefit Plans and Other Benefits. Executive shall also
be entitled to participate in any employee benefit plans which the Company from
time to time provides or may establish for the benefit of its senior executives
(including, without limitation, group life, medical, and other insurance,
retirement, pension, profit-sharing and similar plans), as such plans may be
amended from time to time.
(c) Reimbursement of Expenses. Executive shall be entitled to
reimbursement for all ordinary and reasonable out-of-pocket business expenses
which are reasonably incurred by her in furtherance of the Company's business in
accordance with reasonable policies adopted from time to time by the Company.
The Company will also provide Executive with a monthly allowance to partially
offset the cost of acquisition and maintenance of a first class automobile for
use by Executive primarily in connection with the performance by her of her
duties under this Agreement.
(d) Life Insurance. Subject to the Executive's being insurable at
standard rates, during the Employment Term, the Company will provide One Million
Dollars ($1,000,000.00) of term life insurance for Executive, with Executive's
designee as beneficiary.
(e) Financial Planning. Executive shall be entitled to reimbursement
for up to Five Thousand Dollars ($5,000.00) of expenses incurred for financial
planning services during each twelve (12) month period beginning on the
Effective Date of the Employment Term.
5. Termination upon Death or Disability.
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(a) Executive's employment by the Company shall terminate upon her
death, or upon fifteen (15) days prior written notice from the Company if, by
virtue of total and permanent disability (as hereinafter defined), Executive is
unable to perform her duties hereunder.
(b) Executive shall be considered to be totally and permanently
disabled hereunder if for reasons involving mental or physical illness or
physical injury Executive is unable to or fails to perform a substantial portion
of her duties hereunder for a period of one hundred eighty (180) consecutive
calendar days or more. The determination that, by virtue of total and permanent
disability, Executive is unable to perform a substantial portion of her duties
hereunder shall be made by an impartial physician chosen by the Company and
reasonably satisfactory to Executive (or her legal representative). The cost of
such examination shall be borne by the Company. Executive shall submit to such
examination upon the Company's request.
(c) For purposes of this Paragraph 5, the Termination Date in the
event of death shall be the date of death and in the event of total and
permanent disability shall be the date fifteen
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(15) days after the Company's written notice to Executive that the physician
referenced to above in Paragraph 5(b) has made a determination of Executive's
total and permanent disability in accordance with Paragraph 5(b) above.
6. Termination by the Executive. Executive's employment may be
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terminated by her, by giving a Notice of Termination, as follows: (a) at any
time by written notice of at least sixty (60) days to the Company and; (b) at
any time by written notice for a "Constructive Termination". The Termination
Date in the event of any such termination shall be the date set forth in the
Notice of Termination.
As used herein, a "Constructive Termination" shall mean: (i) a failure
of the Company to comply with any provision of this Agreement which failure, if
capable of remedy, has not been cured within thirty (30) days after notice of
such noncompliance has been given by the Executive to the Company, provided that
any notice of termination hereunder shall be given within ninety (90) days after
the end of such thirty (30) day period; or (ii) a material change by the Company
in Executive's title, authority, functions, duties or responsibilities which
materially adversely affects her position with the Company or causes it to
become of less responsibility, scope or importance, provided that such material
change is not in connection with a termination of Executive's employment
hereunder for Cause, disability (as defined herein) or pursuant to Section 6(a)
above; or (iii) a failure to elect Executive as Chief Executive Officer and
President of the Company or to nominate Executive as a member of the Board or
any removal of Executive as a member of the Board, provided that any such
failure or removal is not in connection with a termination of Executive's
employment hereunder for Cause, disability (as defined herein) or pursuant to
Section 6(a) above; or (iv) causing or requiring Executive to report to anyone
other than the Board or causing Executive to no longer be the most senior
operating officer of the Company, or (v) a proposal by the Company to relocate
the Executive's principal place of employment to a location which is outside of
the State of Connecticut or the greater New York City metropolitan area.
7. Termination by the Company.
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(a) Termination Events. Executive's employment may be terminated at
any time by the Company (i) with Cause (in accordance with Paragraph (b) below)
by a Notice of Termination to Executive, effective immediately unless a later
date is otherwise stated in such notice, which date shall be the Termination
Date therefor, (ii) without Cause at any time, by a Notice of Termination to
Executive, effective sixty (60) days after the date given, except as Executive
and the Company may otherwise agree, which date of effectiveness shall be the
Termination Date thereof, or (iii) for total and permanent disability in
accordance with Paragraph 5.
(b) Definition of "Cause". For purposes of this Agreement, the
Company shall have "Cause" to terminate Executive's employment hereunder upon:
(i) the continued and willful failure by Executive to substantially perform her
duties hereunder (other than any such failure resulting from her incapacity due
to physical or mental illness or any such actual or anticipated failure after
the issuance of a Notice of Termination by Executive for a Constructive
Termination); (ii) the willful engaging by Executive in misconduct which is
materially injurious to the Company's business or reputation, monetarily or
otherwise; (iii) the willful violation by Executive of any material provision of
this Agreement; or (iv) Executive's conviction of an act of fraud or
embezzlement against the Company. Executive shall not be deemed to have been
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terminated for Cause unless (1) reasonable notice has been delivered to her
setting forth the reasons for the Company's intention to terminate for Cause,
and (2) a period of twenty (20) days has elapsed since delivery of such notice
during which Executive was afforded an opportunity to cure, if capable of
remedy, the reasons for the Company's intention to terminate for Cause. No
action or failure to act by Executive shall be deemed willful under this
Paragraph if Executive believed in good faith that such conduct was in, or not
opposed to, the best interest of the Company.
8. Notice of Termination. Any termination of Executive's employment
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by the Company or by Executive (other than as a result of death) shall be
communicated by written notice of termination to the other party hereto in
accordance with Paragraph 16(a) (a "Notice of Termination").
9. Payments of Compensation Upon Termination or Expiration.
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(a) Without Cause, Expiration Occasioned by Company or Constructive
Termination. In the event Executive's employment hereunder is terminated by the
Company without Cause under Paragraph 7, or if Executive's employment is
terminated by Executive for a Constructive Termination, or if the Company gives
Executive written notice under Paragraph 2(b) above that the Employment Term
shall not be extended (except if such termination follows a Change of Control,
in which case paragraph 9(c) shall apply), Executive shall be entitled to a
lump-sum payment payable within thirty (30) days of the Termination Date equal
to (i) (A) the greater of the amount of Base Salary that, absent early
termination by the Company without Cause or by Executive for a Constructive
Termination, would have been paid from the Termination Date through the
remainder of the then current Employment Term, or one year of Base Salary, or
(B) in the event the Company gives Executive written notice under Paragraph 2(b)
above that the Employment Term shall not be extended, one year of Base Salary,
plus (ii) to the extent earned and not already paid, any bonus payable pursuant
to Paragraph 3 for the prior fiscal year. Furthermore, in such event, Executive
shall be entitled to the continuation of benefits set forth in Paragraph 11
below.
(b) For Cause, by Executive other than for Constructive Termination,
or upon Death or Total and Permanent Disability. In the event the Company shall
terminate Executive's employment for Cause, or Executive shall terminate her
employment for other than Constructive Termination, or Executive gives written
notice under Paragraph 2(b) of her desire to end the automatic extension of the
Employment Term, or in the event of the death or total and permanent disability
of Executive pursuant to Paragraph 5, then Executive shall be entitled as of the
Termination Date to no additional compensation under this Agreement, except as
provided in Paragraph 12 or as otherwise provided under the benefit plans of the
Company.
(c) Termination following a Change of Control. In the event that,
following a Change of Control (as defined below) of the Company, (i) Executive's
employment hereunder is terminated by the Company without Cause under Paragraph
7, or (ii) Executive's employment is terminated by Executive for a Constructive
Termination, or (iii) if the Company gives Executive written notice under
Paragraph 2(b) above that the Employment Term shall not be extended, Executive
shall be entitled to a lump-sum payment payable within thirty (30) days of the
expiration of the Employment Term equal to the sum of (i) three (3) times the
annual Base Salary rate in effect immediately prior to such Termination Date,
plus (ii) to the extent earned
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and not already paid, any bonus payable pursuant to Paragraph 3 for the prior
fiscal year. Furthermore, in such event, Executive shall be entitled to the
continuation of benefits set forth in Paragraph 11 below.
As used herein, a "Change of Control" shall be deemed to have occurred upon
the occurrence of any of the following:
(i) any sale, lease, exchange or other transfer (in one transaction or a
series of transactions) of all or substantially all of the assets of the
Company;
(ii) individuals who, as of the date hereof, constitute the entire Board
of Directors of the Company (the "Incumbent Directors") cease for any
reason to constitute at least a majority of the Board of Directors
(hereinafter referred to as a "Board Change"), provided that any individual
becoming a director subsequent to the date hereof whose election or
nomination for election was approved by a vote of at least a majority of
the then Incumbent Directors shall be, for purposes of this provision,
considered as though such individual were an Incumbent Director; or
(iii) any consolidation or merger of the Company (including, without
limitation, a triangular merger) where the shareholders of the Company,
immediately prior to the consolidation or merger, would not, immediately
after the consolidation or merger, beneficially own, directly or
indirectly, shares representing in the aggregate more than fifty percent
(50%) of the combined voting power of all the outstanding securities of the
corporation issuing cash or securities in the consolidation or merger (or
of its ultimate parent corporation, if any); or
(iv) any transaction of the type described in subsection (iii) above
where (A) the percentage referred to is more than 80% of the combined
voting power of all the outstanding securities and where (B) within three
(3) months of such transaction Executive is not serving as chief executive
officer of the combined company or group of companies and reporting only to
the Board of Directors of the parent company; or
(v) any "person," as such term is used in Section 13(d) of the
Securities Exchange Act of 1934, as amended (or any successor provision)
(the "Exchange Act") (other than the Company, any employee benefit plan of
the Company or any entity organized, appointed or established by the
Company for or pursuant to the terms of any such plan), together with all
"affiliates" and "associates" (as such terms are defined in Rule 12b-2
under the Exchange Act or any successor provision) of such person, shall
become the "beneficial owner" or "beneficial owners" (as defined in Rules
13d-3 and 13d-5 under the Exchange Act or any successor provision),
directly or indirectly, of securities of the Company representing in the
aggregate (A) in the event the Company is not a "Reporting Company"
(meaning a Company that is subject to the reporting requirements of the
Exchange Act and has registered shares of a class of equity securities
pursuant to Section 12(g) or 12(b) of the Exchange Act), fifty percent
(50%) or more or (B) in the event the Company is a Reporting Company,
twenty-five percent (25%) or more of either (1) the then outstanding shares
of common stock of the Company or (2) the combined voting power of all then
outstanding securities of the Company having the right under ordinary
circumstances to vote in an election of the Board of Directors of the
Company.
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10. Equity Compensation. On the date hereof, the Company shall grant to
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Executive an option (which shall, in the discretion of Executive, be either a
non-qualified option or an incentive option within the meaning of Section 422 of
the Internal Revenue Code ("Section 422") (or any combination thereof), provided
that any incentive option must comply with all applicable provisions of Section
422) to purchase three hundred thousand (300,000) shares of the common stock of
the Company pursuant to the Company's 1998 Employee, Director and Consultant
Stock Plan at a per share exercise price equal to the market price of the
Company's common stock as quoted on the NASDAQ National Market as of the close
of business on the day prior to the Effective Date. The option will have a term
of ten years. The option will become exercisable for thirty-three percent (33%)
of the shares as of the Effective Date and the remainder of the option will
become exercisable in twenty-four (24) equal monthly installments following the
Effective Date in accordance with the terms of the option agreement. In the
event of a Change of Control after the Effective Date, the option will become
fully exercisable. The form of the option agreement is attached hereto as
Exhibit A.
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11. Continuation of Benefits. In the event Executive's employment
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hereunder is terminated by Executive for a Constructive Termination or by the
Company without Cause or if the Company gives Executive written notice under
Paragraph 2(b) above that the Employment Term shall not be extended, then:
(a) should Executive properly elect and otherwise qualify for continuation
of medical coverage under the Consolidated Omnibus Budget Reconciliation Act of
1985, as amended and in effect on the date of the Executive's termination of
employment hereunder ("COBRA"), and make the payments required by COBRA, the
Company shall reimburse Executive, upon submission of reasonable documentation
of such payments, for the cost thereof for the applicable COBRA period but not
exceeding eighteen (18) months; and
(b) as to any other Benefit Plan or Benefit described under paragraph 4(b)
above, should Executive be eligible to continue group coverage or participation
under the terms of such plans or program, as in effect on the date of the
Executive's termination of employment, the Company shall bear the cost thereof
for a period of eighteen (18) months from the Termination Date, provided that,
should continuation under the Company's group plan not be available, the Company
shall purchase reasonably comparable individual coverage, if available, at its
expense, and provided further, that the Company under no circumstances shall be
liable to expend more than one hundred twenty percent (120%) of the cost of
providing coverage for Executive under such Benefit Plan or Benefit while she
was employed by the Company.
12. Accrued Compensation. In the event of any termination of Executive's
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employment for any reason, Executive (or her estate) shall be paid such portion
of Executive's Base Salary as has accrued by virtue of her employment during the
period prior to termination and has not yet been paid, together with any amounts
for accrued but unused vacation time and for expense reimbursement and similar
items which have been properly incurred in accordance with the provisions hereof
prior to termination and have not yet been paid. Such amounts shall be paid
within thirty (30) days of the Termination Date.
13. Confidential Information. The Executive shall not use for her own
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advantage or disclose any proprietary or confidential information relating to
the business operations or properties of the Company or any other entity
directly or indirectly controlled by the Company
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(each an "Affiliate") or any of their respective customers, suppliers,
servicers, licensors or licensees, unless such information has become public
through no fault of the Executive, and provided that such information may be
disclosed (i) as required pursuant to court order or other legal proceeding or
(ii) as Executive determines is reasonably necessary, to her legal and other
advisors. Upon termination of the Executive's employment, the Executive will
surrender and deliver to the Company all documents and information of every kind
relating to or connected with the Company or any Affiliate and their respective
businesses, customers, suppliers, servicers, landlords, licensors and licensees.
14. Non-compete.
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(a) During Executive's employment under this Agreement or otherwise and
for a period of one (1) year after the Termination Date, Executive will not,
without the express written consent of the Company, anywhere in the United
States or any territory or possession thereof or in any foreign country in which
the Company was active as of the Termination Date: (i) compete (as defined
below) with the Company or any Affiliate; or (ii) otherwise interfere with,
disrupt or attempt to interfere with or disrupt the relationship between the
Company or an Affiliate and any person or business that was a customer,
supplier, lessor, licensor, contractor or employee of the Company or such
Affiliate on the Termination Date or within two (2) years prior to the
Termination Date. In addition, for a period of one (1) year after the
Termination Date, Executive will not, directly or indirectly, solicit or
endeavor to entice away from the Company any of its employees.
(b) The term "compete" as used in this Paragraph 14 means directly or
indirectly, or by association with any entity or business, either as a
proprietor, partner, employee, agent, consultant, director, officer, shareholder
or in any other capacity or manner to solicit for hire, hire, sell to, rent
from, or otherwise conduct (i) any business related to the Internet-based retail
sale of computer hardware, software or peripherals or (ii) any other material
business actively engaged in by the Company at the Termination Date or (iii) any
other material business which the Company has made, and is then continuing to
make, substantial plans to conduct at the Termination Date and which the Company
is actively engaged in within three (3) months following the Termination Date;
provided, however, that (ii) and (iii) above shall not include any business
conducted by the Company solely through an entity with which the Company entered
into a transaction that constituted a Change of Control (as defined in Paragraph
9 hereof) within three (3) months of the Termination Date).
(c) The foregoing shall not prohibit Executive from owning not more than
one percent (1%) of the securities of a company that is publicly traded on a
securities exchange or over-the-counter market, provided that Executive does not
otherwise have any relationship with such company.
15. Indemnification; Insurance. During the period of Executive's
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employment hereunder and thereafter, the Company agrees to indemnify Executive
in her capacity as an officer and director of the Company to the maximum extent
permitted under applicable state law, and, without limiting the foregoing, the
Company will pay all expenses incurred by Executive in accordance with Section
145(e) of the Delaware General Corporation Law; this provision will survive the
termination of this Agreement. Further, if available upon payment of a
reasonable
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premium as determined by the Board, the Company will secure standard Director
and Officer Liability Insurance covering Executive in her capacity as an officer
and director of the Company to the extent such insurance is secured for other
senior executives of the Company.
16. General.
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(a) Notices. All notices, requests, consents and other communications
hereunder shall be in writing, shall be addressed to the receiving party's
address set forth below or to such other address as a party may designate by
notice hereunder, and shall be either (i) delivered by hand, (ii) made by
telecopy, (iii) sent by overnight courier, or (iv) sent by registered or
certified mail, return receipt requested, postage prepaid.
If to the Company: Cyberian Outpost, Inc.
00 X. Xxxx Xxxxxx
Xxxx, Xxxxxxxxxxx 00000
Attn: Corporate Counsel
If to Executive: Xxxxxxxxx X. Xxxx
Address on file at the Company
All notices, requests, consents and other communications hereunder shall be
deemed to have been given either (i) if by hand, at the time of the delivery
thereof to the receiving party at the address of such party set forth above,
(ii) if made by telecopy, at the time that receipt thereof has been acknowledged
by electronic confirmation or otherwise, (iii) if sent by overnight courier, on
the next business day following the day such notice is delivered to the courier
service, or (iv) if sent by registered or certified mail, on the fifth business
day following the day such mailing is made.
(b) Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior oral or written agreements and understandings
relating to the subject matter hereof, including, without limitation, (i) the
Employment Agreement dated June 2, 1998, and (ii) the Employment Agreement dated
June 16, 1999, as amended by a Letter Agreement dated November 16, 2000.
Notwithstanding the foregoing, paragraph 10(b) of the Employment Agreement dated
June 2, 1998 (and the definitions related thereto) shall survive the execution
of this Agreement and shall remain in full force and effect. No statement,
representation, warranty, covenant or agreement of any kind not expressly set
forth in this Agreement shall affect, or be used to interpret, change or
restrict, the express terms and provisions of this Agreement.
(c) Modifications and Amendments. The terms and provisions of this
Agreement may be modified or amended only by written agreement executed by the
parties hereto.
(d) Waivers and Consents. The terms and provisions of this Agreement may
be waived, or consent for the departure therefrom granted, only by written
document executed by the party entitled to the benefits of such terms or
provisions. No such waiver or consent shall be deemed to be or shall constitute
a waiver or consent with respect to any other terms or provisions of this
Agreement, whether or not similar. Each such waiver or consent shall be
effective only in
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the specific instance and for the purpose for which it was given, and shall not
constitute a continuing waiver or consent.
(e) Parties. This Agreement is personal and shall in no way be subject to
assignment by Executive. This Agreement shall be binding upon and shall inure
to the benefit of the Company and its successors and assigns either by merger,
operation of law, consolidation, assignment, purchase or other acquisition of a
controlling interest in the business of the Company, and shall be binding upon
and shall inure to the benefit of Executive, her heirs, executors,
administrators, personal and legal representatives, distributees, devisees,
legatees, successors and permitted assigns. As used in this Agreement, "the
Company" shall mean the Company as hereinbefore defined and any successor as
aforesaid.
(f) Governing Law. This Agreement and the rights and obligations of the
parties hereunder shall be construed in accordance with and governed by the law
of the State of Delaware, without giving effect to the conflict of law
principles thereof.
(g) Jurisdiction and Service of Process. Any legal action or proceeding
with respect to this Agreement shall be brought in the courts of the State of
Connecticut or of the United States of America for the District of Connecticut.
By execution and delivery of this Agreement, each of the parties hereto accepts
for itself and in respect of its property, generally and unconditionally, the
jurisdiction of the aforesaid courts. Each of the parties hereto irrevocably
consents to the service of process of any of the aforementioned courts in any
such action or proceeding by the mailing of copies thereof by certified mail,
postage prepaid, to the party at its address set forth in Paragraph 16(a)
hereof.
(h) Severability. The parties intend this Agreement to be enforced as
written. However, if any portion or provision of this Agreement shall to any
extent be declared illegal or unenforceable by a duly authorized court having
jurisdiction, then the remainder of this Agreement, or the application of such
portion or provision in circumstances other than those as to which it is so
declared illegal or unenforceable, shall not be affected thereby, and each
portion and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
(i) Headings and Captions. The headings and captions of the various
subdivisions of this Agreement are for convenience of reference only and shall
in no way modify, or affect the meaning or construction of any of the terms or
provisions hereof.
(j) No Waiver of Rights, Powers and Remedies. No failure or delay by a
party hereto in exercising any right, power or remedy under this Agreement, and
no course of dealing between the parties hereto, shall operate as a waiver of
any such right, power or remedy of the party. No single or partial exercise of
any right, power or remedy under this Agreement by a party hereto, nor any
abandonment or discontinuance of steps to enforce any such right, power or
remedy, shall preclude such party from any other or further exercise thereof or
the exercise of any other right, power or remedy hereunder. The election of any
remedy by a party hereto shall not constitute a waiver of the right of such
party to pursue other available remedies. No notice to or demand on a party not
expressly required under this Agreement shall entitle the party receiving such
notice or demand to any other or further notice or demand in similar or other
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circumstances or constitute a waiver of the rights of the party giving such
notice or demand to any other or further action in any circumstances without
such notice or demand.
(k) Expenses. The Company will reimburse the Executive for her reasonable
legal fees in connection with the negotiation of this Agreement.
(l) Counterparts. This Agreement may be executed in one or more
counterparts, and by different parties hereto on separate counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement as
of the day and year first above written.
CYBERIAN OUTPOST, INC.
By: /s/ Xxxx Xxxxxxxx
------------------------
Title: CFO
/s/ Xxxxxxxxx X. Xxxx
------------------------
Xxxxxxxxx X. Xxxx
-11-
Exhibit A
NON-QUALIFIED STOCK OPTION AGREEMENT
CYBERIAN OUTPOST, INC.
AGREEMENT made as of the 9th day of January 2001, between Cyberian Outpost,
Inc. (the "Company"), a Delaware corporation having a principal place of
business in Kent, Connecticut, and Xxxxxxxxx X. Xxxx of Xxxx, Connecticut (the
"Participant").
WHEREAS, the Company desires to grant to the Participant an Option to
purchase shares of its common stock, $.01 par value per share (the "Shares"),
under and for the purposes set forth in the Company's 1998 Employee, Director
and Consultant Stock Plan (the "Plan");
WHEREAS, the Company and the Participant understand and agree that any
terms used and not defined herein have the same meanings as in the Plan; and
WHEREAS, the Company and the Participant each intend that the Option
granted herein shall be a Non-Qualified Option.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth and for other good and valuable consideration, the parties hereto agree as
follows:
1. GRANT OF OPTION.
---------------
The Company hereby grants to the Participant the right and option to
purchase all or any part of an aggregate of three hundred thousand (300,000)
Shares, on the terms and conditions and subject to all the limitations set forth
herein and in the Plan, which is incorporated herein by reference. The
Participant acknowledges receipt of a copy of the Plan.
2. PURCHASE PRICE.
--------------
The purchase price of the Shares covered by the Option shall be One Dollar
and 25/100, ($1.25) per Share, subject to adjustment, as provided in the Plan,
in the event of a stock split, reverse stock split or other events affecting the
holders of Shares. Payment shall be made in accordance with Paragraph 8 of the
Plan.
3. EXERCISABILITY OF OPTION.
------------------------
Subject to the terms and conditions set forth in this Agreement and the
Plan, the Option granted hereby shall become cumulatively exercisable as
follows:
The Date Hereof 100,000 Shares
Thereafter, Monthly for 24 8,333.33 Shares/month
months
Notwithstanding the foregoing, if the Participant's employment is terminated by
the Company without Cause (as defined in the Participant's Employment Agreement
dated as of the date hereof by and between the Participant and the Company (the
"Employment Agreement")) or by the Participant by reason of a Constructive
Termination (as defined in the Employment Agreement) on or prior to January 9,
2002 , an additional thirty percent (30%) of the then unvested portion of this
Option shall accelerate and become fully vested and exercisable as of the
Termination Date (as defined in the Employment Agreement), and if the
Participant's employment is terminated by the Company without Cause or by the
Participant by reason of Constructive Termination subsequent to January 9, 2002,
an additional twenty percent (20%) of the then unvested portion of this Option
shall accelerate and become fully vested and exercisable as of the Termination
Date. In addition, in the event of a Change of Control (as defined in the
Employment Agreement), this Option will become fully exercisable as of the
Change of Control and, without limitation, for purposes of the Change of
Control.
The foregoing rights are cumulative and are subject to the other terms and
conditions of this Agreement and the Plan.
4. TERM OF OPTION.
--------------
The Option shall terminate ten (10) years from the date of this Agreement,
but shall be subject to earlier termination as provided herein or in the Plan.
If the Participant's employment with the Company is terminated for any
reason other than for cause (as defined in the Employment Agreement) the Option
may be exercised to the extent it was exercisable as of the Termination Date (as
defined in the Employment Agreement ) at any time within twenty-four (24) months
following the Termination Date, but no later than the remaining term of the
Option.
In the event the Participant's employment is terminated by the Company for
cause, the Participant's right to exercise any unexercised portion of this
Option shall cease as of the termination date, and this Option shall thereupon
terminate. Notwithstanding anything herein to the contrary, if subsequent to
the Termination Date, but prior to the exercise of the Option, the Board of
Directors of the Company determines that, either prior or subsequent to the
Termination Date, the Participant engaged in conduct which would constitute
Cause, then the Participant shall immediately cease to have any right to
exercise the Option and this Option shall thereupon terminate.
5. METHOD OF EXERCISING OPTION.
---------------------------
Subject to the terms and conditions of this Agreement, the Option may be
exercised by written notice to the Company at its principal executive office, in
substantially the form of Exhibit A attached hereto. Such notice shall state
---------
the number of Shares with respect to which the Option is being exercised and
shall be signed by the person exercising the Option. Payment of the purchase
price for such Shares shall be made in accordance with Paragraph 8 of the Plan.
Payment of the purchase price for the Shares as to which such Option is being
exercised shall be made (a) in United States dollars in cash or by check, or (b)
to the extent that there will be no resulting charge to the Company's earnings
statement, through delivery of shares of Common Stock having a Fair Market Value
equal as of the date of the exercise to the cash exercise price
1
of the Option, or (c) to the extent that there will be no resulting charge to
the Company's earnings statement, by having the Company retain from the shares
otherwise issuable upon exercise of the Option, a number of shares having a Fair
Market Value equal as of the date of exercise to the exercise price of the
Option, or (d) by delivery of the grantee's personal recourse note bearing
interest payable not less than annually at no less than 100% of the applicable
Federal rate, as defined in Section 1274(d) of the Code, or (e) in accordance
with a cashless exercise program established with a securities brokerage firm,
and approved by the Administrator, or (f) by any combination of (a), (b), (c),
(d) and (e) above. The Company shall deliver a certificate or certificates
representing such Shares as soon as practicable after the notice shall be
received, provided, however, that the Company may delay issuance of such Shares
until completion of any action or obtaining of any consent, which the Company
deems necessary under any applicable law (including, without limitation, state
securities or "blue sky" laws). The certificate or certificates for the Shares
as to which the Option shall have been so exercised shall be registered in the
name of the person or persons so exercising the Option (or, if the Option shall
be exercised by the Participant and if the Participant shall so request in the
notice exercising the Option, shall be registered in the name of the Participant
and another person jointly, with right of survivorship) and shall be delivered
as provided above to or upon the written order of the person or persons
exercising the Option. In the event the Option shall be exercised, pursuant to
this Section 5, by any person or persons other than the Participant, such notice
shall be accompanied by appropriate proof of the right of such person or persons
to exercise the Option. All Shares that shall be purchased upon the exercise of
the Option as provided herein shall be fully paid and nonassessable.
6. PARTIAL EXERCISE.
----------------
Exercise of this Option to the extent above stated may be made in part at
any time and from time to time within the above limits, except that no
fractional share shall be issued pursuant to this Option.
7. NON-ASSIGNABILITY.
-----------------
The Option shall not be transferable by the Participant otherwise than by
will or by the laws of descent and distribution or pursuant to a qualified
domestic relations order as defined by the Code or Title I of the Employee
Retirement Income Security Act or the rules thereunder. Except as provided in
the previous sentence, the Option shall be exercisable, during the Participant's
lifetime, only by the Participant (or, in the event of legal incapacity or
incompetency, by the Participant's guardian or representative) and shall not be
assigned, pledged or hypothecated in any way (whether by operation of law or
otherwise) and shall not be subject to execution, attachment or similar process.
Any attempted transfer, assignment, pledge, hypothecation or other disposition
of the Option or of any rights granted hereunder contrary to the provisions of
this Section 7, or the levy of any attachment or similar process upon the Option
shall be null and void. Notwithstanding the foregoing, the Option may be
transferred, in whole or in part but without consideration;
(A) to any person who is a "family member" of the Participant,
as such term is used in the instructions to Form S-8 as of the
grant date (collectively, "Immediate Family Members"),
2
(B) to a trust solely for the benefit of the Participant and
Immediate Family Members;
(C) to a partnership or limited liability company whose only
partners or shareholders are the Participant and Immediate Family
Members; or
(D) to such other transferee, including without limitation, to a
charitable trust or other charitable institution established by
or designated by the Participant, as may be approved by the
Board, which approval shall not be unreasonably withheld;
(each transferee described in clauses (A), (B), (C) and (D) being a
"Permitted Transferee"); provided that the Participant gives the Committee
advance written notice describing the terms and conditions of the transfer
and that the Committee does not promptly thereafter give written notice to
the Participant, based on written notice from outside counsel, that such
transfer violates the terms of this Agreement.
The terms of the Option shall apply to any Permitted Transferee and any
reference herein to the Participant shall be deemed to the extent of the
transfer, to refer to the Permitted Transferee, except that (a) no
Permitted Transferee shall be entitled to transfer any portion of the
Option other than by will or the laws of descent and distribution and (b)
the consequences of a Change of Control, and of termination of the
Participant's employment with the Company, as provided in Sections 3 and 4
shall continue to apply.
8. NO RIGHTS AS STOCKHOLDER UNTIL EXERCISE.
---------------------------------------
The Participant shall have no rights as a stockholder with respect to
Shares subject to this Agreement until registration of the Shares in the
Company's share register in the name of the Participant. Except as is expressly
provided in the Plan with respect to certain changes in the capitalization of
the Company, no adjustment shall be made for dividends or similar rights for
which the record date is prior to the date of such registration.
9. CAPITAL CHANGES AND BUSINESS SUCCESSIONS.
----------------------------------------
The Plan contains provisions covering the treatment of Options in a number
of contingencies such as stock splits and mergers. Provisions in the Plan for
adjustment with respect to stock subject to Options and the related provisions
with respect to successors to the business of the Company are hereby made
applicable hereunder and are incorporated herein by reference; provided,
however, that notwithstanding the foregoing, in the event of an "Acquisition" of
the Company (as defined in Section 23B of the Plan) which also constitutes a
Change of Control (as defined in the Employment Agreement) the Option shall
become fully exercisable as of the Acquisition and for purposes of the
Acquisition. The Company agrees that the adjustments with respect to stock
subject to Options provided for in the Plan will be made automatically and are
not discretionary with respect to the Participant.
3
10. TAXES.
-----
The Participant acknowledges that upon exercise of the Option the
Participant will be deemed to have taxable income measured by the difference
between the then fair market value of the Shares received upon exercise and the
price paid for such Shares pursuant to this Agreement. The Participant
acknowledges that any income or other taxes due from him or her with respect to
this Option or the Shares issuable pursuant to this Option shall be the
Participant's responsibility.
The Participant agrees that the Company may withhold from the Participant's
remuneration, if any, the appropriate amount of federal, state and local
withholding taxes attributable to such amount that is considered compensation
includable in such person's gross income. At the Participant's discretion, but
only to the extent that there will be no resulting charge to the Company's
earnings statement, the amount required to be withheld may be withheld in cash
from such remuneration, or in kind from the Shares otherwise deliverable to the
Participant on exercise of the Option. The Participant further agrees that, if
the Company does not withhold an amount from the Participant's remuneration
sufficient to satisfy the Company's income tax withholding obligation, the
Participant will reimburse the Company on demand, in cash, for the amount under-
withheld.
11. PURCHASE FOR INVESTMENT.
-----------------------
As of the grant date, the Shares to be issued upon exercise of the Option
are duly registered on Form S-8 or otherwise and the Company shall use all
reasonable efforts to ensure that during any period that its Common Stock is
publicly traded all such Shares are, and shall remain, registered for issuance
on exercise of the Option.
Unless the offering and sale of the Shares to be issued upon the particular
exercise of the Option shall have been effectively registered under the
Securities Act of 1933, as now in force or hereafter amended (the "1933 Act"),
the Company shall be under no obligation to issue the Shares covered by such
exercise unless and until the following conditions have been fulfilled:
(a) The person(s) who exercise the Option shall warrant to the Company, at
the time of such exercise, that such person(s) are acquiring such
Shares for their own respective accounts, for investment, and not with
a view to, or for sale in connection with, the distribution of any
such Shares, in which event the person(s) acquiring such Shares shall
be bound by the provisions of the following legend which shall be
endorsed upon the certificate(s) evidencing the Shares issued pursuant
to such exercise:
"The shares represented by this certificate have been taken for
investment and they may not be sold or otherwise transferred by
any person, including a pledgee, unless (1) either (a) a
Registration Statement with respect to such shares shall be
effective under the Securities Act of 1933, as amended, or (b)
the Company shall have received an opinion of counsel
satisfactory to it that an exemption from registration under such
Act is then available, and (2) there shall have been compliance
with all applicable state securities laws;" and
4
(b) If the Company so requires, the Company shall have received an opinion
of its counsel that the Shares may be issued upon such particular
exercise in compliance with the 1933 Act without registration
thereunder. Without limiting the generality of the foregoing, the
Company may delay issuance of the Shares until completion of any
action or obtaining of any consent, which the Company deems necessary
under any applicable law (including without limitation state
securities or "blue sky" laws).
12. NO OBLIGATION TO MAINTAIN RELATIONSHIP.
--------------------------------------
The Company is not by the Plan or this Option obligated to continue the
Participant as an employee, director or consultant of the Company.
13. NOTICES.
-------
Any notices required or permitted by the terms of this Agreement or the
Plan shall be given by recognized courier service, facsimile, registered or
certified mail, return receipt requested, addressed as follows:
If to the Company:
Cyberian Outpost, Inc.
Director of Human Resources
XX Xxx 000
00 Xxxxx Xxxx Xxxxxx
Xxxx, Xxxxxxxxxxx 00000
If to the Participant:
Xxxxxxxxx X. Xxxx
00 Xxxxxxxx Xxxx
Xxxx, Xxxxxxxxxxx 00000
or to such other address or addresses of which notice in the same manner has
previously been given. Any such notice shall be deemed to have been given upon
the earlier of receipt, one business day following delivery to a recognized
courier service or three business days following mailing by registered or
certified mail.
14. GOVERNING LAW.
-------------
This Agreement shall be construed and enforced in accordance with the law
of the State of Delaware, without giving effect to the conflict of law
principles thereof.
15. BENEFIT OF AGREEMENT.
--------------------
Subject to the provisions of the Plan and the other provisions hereof, this
Agreement shall be for the benefit of and shall be binding upon the heirs,
executors, administrators, successors and assigns of the parties hereto.
5
16. ENTIRE AGREEMENT.
----------------
This Agreement, together with the Plan, embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior oral or written agreements and understandings
relating to the subject matter hereof. No statement, representation, warranty,
covenant or agreement not expressly set forth in this Agreement shall affect or
be used to interpret, change or restrict, the express terms and provisions of
this Agreement, provided, however, in any event, this Agreement shall be subject
to and governed by the Plan.
17. MODIFICATIONS AND AMENDMENTS.
----------------------------
The terms and provisions of this Agreement may be modified or amended as
provided in the Plan.
18. WAIVERS AND CONSENTS.
--------------------
Except as provided in the Plan, the terms and provisions of this Agreement
may be waived, or consent for the departure therefrom granted, only by written
document executed by the party entitled to the benefits of such terms or
provisions. No such waiver or consent shall be deemed to be or shall constitute
a waiver or consent with respect to any other terms or provisions of this
Agreement, whether or not similar. Each such waiver or consent shall be
effective only in the specific instance and for the purpose for which it was
given, and shall not constitute a continuing waiver or consent.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
its duly authorized officer, and the Participant has hereunto set his or her
hand, all as of the day and year first above written.
Cyberian Outpost, Inc.
By: _______________________________________
_______________________________________
Xxxxxxxxx X. Xxxx
6
Exhibit A
---------
NOTICE OF EXERCISE OF NON-QUALIFIED STOCK OPTION
[Form For Registered Shares]
TO: Cyberian Outpost, Inc.
IMPORTANT NOTICE: This form of Notice of Exercise may only be used at such time
as the Company has filed a Registration Statement with the Securities and
Exchange Commission under which the issuance of the Shares for which this
exercise is being made is registered and such Registration Statement remains
effective.
Ladies and Gentlemen:
I hereby exercise my Non-Qualified Stock Option to purchase _________
shares (the "Shares") of the common stock, $.01 par value, of Cyberian Outpost,
Inc. (the "Company"), at the exercise price of $________ per share, pursuant to
and subject to the terms of that certain Non-Qualified Stock Option Agreement
between the undersigned and the Company dated _______________, 2000.
I understand the nature of the investment I am making and the financial
risks thereof. I am aware that it is my responsibility to have consulted with
competent tax and legal advisors about the relevant national, state and local
income tax and securities laws affecting the exercise of the Option and the
purchase and subsequent sale of the Shares.
I am paying the option exercise price for the Shares as follows:
__________________________________
Please issue the stock certificate for the Shares (check one):
[_] to me; or
[_} to me and ____________________________, as joint tenants with right of
survivorship,
and mail the certificate to me at the following address:
________________________________________________
________________________________________________
________________________________________________
7
My mailing address for shareholder communications, if different from the
address listed above, is:
________________________________________________
________________________________________________
________________________________________________
Very truly yours,
__________________________________________
Participant (signature)
__________________________________________
Print Name
__________________________________________
Date
__________________________________________
Social Security Number
8
