Exhibit 10.4(i)
EMPLOYMENT AGREEMENT
This Agreement is made as of this 17th day of April, 2000, by and
between Navigation Technologies Corporation, a Delaware corporation ("NavTech"),
and ▇▇▇▇▇▇ ▇▇▇▇▇, an individual residing in Orlando, Florida ("Green" or
"Executive").
1. Services of Green
▇. ▇▇▇▇▇ will serve as NavTech's Chief Executive Officer and President
and, as directed by the Board of Directors of NavTech (the "Board"), shall
perform the services that are consistent with such titles and duties.
b. Except as provided in Section 6.a., this Agreement, and Green's
employment hereunder, shall terminate on the earliest to occur of (i) the
expiration of four (4) years from the date of this Agreement, (ii) Green's death
or Disability (as defined below), and (iii) the termination of this Agreement by
NavTech or Green as evidenced by a written notice to that effect.
▇. ▇▇▇▇▇ agrees that:
(i) During the term of this Agreement and for a period of one
(1) year after the termination of this Agreement for any reason, Green will not,
acting alone or in conjunction with others, directly or indirectly, without the
consent in writing of the Board:
(A) Engage (either as an owner, partner, stockholder, employer,
employee, consultant or otherwise) in any business or activity related to
creating, managing, adapting, applying, distributing, selling or licensing
navigable street map databases and related database creation, updating,
accessing, routing, compiling or other application software, or any logical
extensions thereof, or any other business conducted during the term of this
Agreement by NavTech or any of its subsidiaries (the "NavTech Businesses"); it
being agreed, without limiting any of the foregoing, that Green will not
directly or indirectly provide software services to any competitor of NavTech in
the NavTech Businesses.
(B) Induce any customers of NavTech or any of its subsidiaries
to curtail or cancel their business with NavTech or any of its subsidiaries, or
induce any person or entity to do business with any competitor of NavTech
engaged in any of the NavTech Businesses.
(C) Solicit or canvass business in connection with the selling
or 1icensing of navigable street map databases or related software from any
person or entity who was a customer of NavTech or any of its subsidiaries during
the period in which Green's services are or were provided to NavTech or any of
its subsidiaries; or
(D) Induce, or attempt to influence, any employee of NavTech
or any of its subsidiaries to terminate his or her employment.
The provisions of each of clauses (A), (B), (C), and (D) above are separate and
distinct commitments independent of each of the other clauses. It is agreed that
the ownership of equity securities of NavTech or not more than five percent (5%)
of the equity securities of any company having securities listed on an exchange
or regularly traded in the over-the-counter market shall not, in itself, be
deemed inconsistent with subparagraphs 1.c.(i)(A).
If, at the time of enforcement of any of the provisions of this Section 1.c.(i),
a court holds that the restrictions stated herein are unreasonable under the
circumstances then existing, the parties hereto agree that the maximum period,
scope or geographical area reasonable under such circumstances shall be
substituted for the stated period, scope or area. The parties agree that the
covenants made in this Section 1.c.(i) shall be construed as an agreement
independent of any other provision of this Agreement and shall survive any order
of a court of competent jurisdiction terminating any other provision of this
Agreement.
(ii) Except in the course of providing services hereunder,
Green shall not, at any time, during the term of this Agreement or thereafter,
for any reason whatsoever, disclose, use, transfer or sell any confidential or
proprietary information of NavTech and its subsidiaries if such information has
not otherwise lawfully been disclosed or is not otherwise in the public domain,
except as required by law or pursuant to legal process.
(iii) Green agrees to cooperate with NavTech by being
available to testify on behalf of NavTech or any subsidiary or affiliate of
NavTech in any proceeding, whether civil, criminal, administrative or
investigative, and to assist NavTech, or any subsidiary or affiliate of NavTech,
in any such action, suit or proceeding, by providing information, and meeting
and consulting with the Board or its representatives or counsel, or
representatives or counsel of NavTech or any subsidiary or affiliate of NavTech,
at reasonably convenient times and places, as requested by such Board,
representatives or counsel. NavTech agrees to reimburse Green for all expenses
(including the reasonable fees and expenses of his counsel) and time reasonably
incurred in connection with his provision of such testimony or assistance after
the termination of Green's services under this Agreement.
2. Compensation
a. Compensation for Green's services shall consist of (i) the Base
Annual Compensation, (ii) the Senior Executive Bonus Plan, and (iii) such
customary health and welfare benefits as NavTech may provide to its executive
employees. NavTech shall reimburse Green for reasonable expenses incurred in
performing his duties to NavTech hereunder, subject to policies established by
the Board from time to time.
b. The Base Annual Compensation for Green's services shall be at the
annual rate of not less than $600,000, commencing on May 8, 2000. The Base
Annual Compensation shall be paid to Green by NavTech in twenty-six (26) equal
bi-weekly installments each year. The Board shall review the Base Annual
Compensation on an annual basis. The Board shall have the right, but not the
obligation, to increase Green's Base Annual Compensation from time to time, as
it sees fit.
▇. ▇▇▇▇▇ will also be eligible to participate in NavTech's Senior
Executive Bonus Plan during the term of this Agreement. Green's target bonus
each year will be 100 percent of his Base Annual Compensation. One half of
Green's target bonus will be subject to Green's achievement of applicable
milestones and objectives. Such milestones and objectives shall be established
annually by the Board and shall refer to financial and other data determinable
as of the end of each fiscal year of NavTech. The other half of Green's target
bonus will be subject to Green's achievement of personal objectives established
by the Board on an annual basis. For each year, Green's bonus, if any, will be
paid to Green in a lump sum on or before March 31 of the following year. A
determination as to whether the aforementioned milestones and objectives have
been met shall be made by the Board within ninety (90) days after the end of
each such fiscal year, and Green's bonus, if any, shall be deemed earned as of
the end of the fiscal year for which the objectives and milestones were set. For
the year 2000, Green's bonus will not be linked to any milestones or objectives
but will be 67 percent of his Base Annual Compensation and will be paid to Green
in a lump sum on or before March 31, 2001.
d. NavTech will grant to Green a stock option on and pursuant to the
terms of the Option Agreement attached hereto as Exhibit A.
e. If NavTech terminates Green's employment for Cause (as defined
below), or Green's employment terminates due to his death or Disability (as
defined below), or Green terminates his employment with NavTech other than as a
result of a NavTech Breach (as defined below), NavTech shall not be required to
pay any compensation for such termination, and Green shall not thereafter
continue to participate in any benefit plans of NavTech or its subsidiaries,
except to the extent required by law, provided that Green shall be entitled to
receive any bonus earned but unpaid as of the date of such termination, such
bonus to be received when such bonus would have been paid to Green had Green's
employment not been so terminated, and any death or disability benefit to which
Green may be entitled under the terms of the Company's benefit plans.
f. In the event that Green's employment is terminated by NavTech
without Cause or by Green as a result of a NavTech Breach, or in the event that
Green terminates his employment within 60 days of a Change of Control (as
defined below), NavTech will provide Green with the following:
(i) If such termination or Change of Control occurs within the
first two years of Green's employment, severance pay equal to one (1) year of
Base Annual Compensation and any earned and unpaid bonus as of the date of such
termination. If such termination or change of Control occurs during the third or
fourth year of Green's employment, severance pay equal to two (2) years of Base
Annual Compensation and target bonuses. If such termination or Change of Control
occurs after the fourth year of Green's employment, severance pay equal to (3)
years of Base Annual Compensation and target bonuses.
(ii) Continuation of Green's participation in NavTech's health
and welfare benefit plans for a period of one (1) year after the date of
termination, to the extent the terms of such plans so permit.
(iii) In the event that any payment made hereunder or pursuant
to the Stock Option Agreement attached hereto as Exhibit A (including the
vesting or exercise by Executive of any stock options or any restricted
stock) shall result in an excise tax being imposed on Green under Section 4999
of the Internal Revenue Code, the Company hereby agrees to make an additional
payment to Green to put Green in the same net after-tax position that Green
would have been in had no such excise tax and any interest and penalties been
incurred, including any payment made pursuant to the following sentence. In
calculating the amount of such payment, the fact that such payment itself may
also be subject to such excise tax and shall also be subject to federal and
state income tax shall be taken into account.
In the event of such a termination, the foregoing shall be Green's sole and
exclusive remedy and Green shall not be entitled to any other or further
payments, compensation or benefits from NavTech, except as provided in the Stock
Option Agreement attached hereto as Exhibit A.
g. For purposes of this Agreement, "Cause" shall mean (i) the material
breach by Green of any of his obligations under this Agreement (other than as a
result of Green's death or permanent disability and, with respect to a material
breach by Green of any of his obligations under Section 1.a. of this Agreement,
except where Green reasonably and in good faith believes the performance of such
obligations to be not in the best interests of NavTech and its subsidiaries or
the stockholders of NavTech) which is not remedied within 15 days after delivery
of written notice from NavTech to Green specifying such breach, (ii) Green's
commission of a criminal offense which is a felony, (iii) Green's commission of
any other act or omission involving dishonesty, disloyalty or fraud with respect
to NavTech or any of its operating subsidiaries or any of their business
relations, or (iv) the substantial and repeated failure of Green to perform
duties as reasonably directed by the Board consistent with this Agreement
(except where Green reasonably and in good faith believes the performance of
such duties to be not in the best interests of NavTech and its subsidiaries or
the stockholders of NavTech). A "NavTech Breach" shall mean a continued material
failure of NavTech to comply with the terms of this Agreement, and such failure
continues for a period of more than 15 days following notice of such failure by
Green to the Board. Any such notice shall specifically state the grounds which
Green alleges constitutes a NavTech Breach. "Disability" shall mean Green's
incapacity due to physical or mental illness as certified in writing by a
physician selected by Green and reasonably acceptable to NavTech (it being
understood that (i) such physician shall be deemed to be reasonably acceptable
to NavTech if, within a period of fifteen (15) days after Green notifies NavTech
of the name of such physician, NavTech does not object to the use of such
physician, and (ii) if Green fails to select a physician within fifteen (15)
days after a written request from NavTech to do so, NavTech shall have the right
to select the physician to examine Green).
h. For purposes of this Agreement, "Change of Control" means the sale
to an independent third party or group of independent third parties of (i) more
than 50 percent (50%) of the issued and outstanding equity securities of NavTech
and the voting power under normal circumstances to elect a majority of the
Company's Board of Directors (whether by merger, consolidation, sale or transfer
of NavTech's equity securities); or (ii) all or substantially all of the
Company's assets determined on a consolidated basis.
i. NavTech shall indemnify Green with respect to his performance of
services hereunder to the full extent allowed under the General Corporation Law
of the State of Delaware.
j. During the term of this Agreement, NavTech shall provide Green with
the following additional benefits:
(i) NavTech will reimburse Green for first-class
business-related travel anywhere within the United States, and for
business-class business-related travel to destinations outside of the United
States.
(ii) NavTech will pay Green a monthly allowance in the amount
of $3,000 for expenses related to an automobile, personal financial advice and
the membership fees and dues of a downtown Chicago luncheon/dinner club designed
primarily to serve meals in a business environment. Green shall otherwise bear
all expenses and liabilities relating to these items and activities.
k. During the term of this Agreement, Green will have the following
additional stock purchase rights:
(i) Upon execution of this Agreement by both Navtech and
Green, and for 90 days thereafter, Green shall have the right to purchase up to
$5 million ($5,000,000) in NavTech common stock at a price of $0.85 per share.
(ii) Upon the first occasion in which a third party or group
of third parties makes an investment for capital raising purposes in equity
securities of NavTech in an amount equal to or exceeding $25 million
($25,000,000), Green shall have the right to purchase up to $5 million
($5,000,000) in such equity securities at a price equal to the price paid for
such securities by such third party or group of third parties.
(iii) In the event NavTech completes an initial sale in an
underwritten public offering registered under the Securities Act of 1933, as
amended, of shares of NavTech common stock having an aggregate offering value of
at least $25 million ("IPO"), Green shall have the right to purchase up to $5
million ($5,000,000) in shares of such stock at the IPO price to the public.
l. Except for issuances of capital stock as a split of, or dividend on,
the Company's outstanding capital stock, if NavTech during the term of this
Agreement (a) has more than 500,000,000 issued and outstanding shares of common
stock on a fully diluted basis, and (b) authorizes the issuance or sale of
additional shares of its common stock, NavTech shall grant to Green an option to
purchase 3.5% of such shares at the most favorable price and on the most
favorable terms as such stock are to be or were offered. However, NavTech's
obligation to grant any such option shall terminate on the first to occur of (i)
the consummation of an initial public offering, or (ii) a Change of Control as
defined herein.
m. All amounts payable to Green hereunder shall be subject to all
required withholding by NavTech.
3. Proprietary Information and Inventions
a. Subject to the exceptions identified in Section 3.c., the items
specified below in this Section 3.a. are hereinafter collectively called
"Proprietary Subject Matter," and Green's interest in them will be the exclusive
property of NavTech, its successors, assignees, or nominees:
(i) Any and all inventions, improvements and ideas (whether
or not patentable or copyrightable) which Green has made or conceived, or which
he may make or conceive, either solely or jointly with others, at any time
during the term of this Agreement, which relate to the NavTech Businesses (as
defined above) or contemplated businesses of which Green is aware, or logical
extensions thereof (and not to business management or leadership generally).
(ii) Any suggestion, proposal, writing, drawing and the like
of any sort whatsoever, including any interest in any copyright, which Green
creates or assists in creating during his engagement with or provision of
services to NavTech, which is related to the NavTech Businesses (as defined
above) or contemplated businesses of which Green is aware, or logical extensions
thereof (and not to business management or leadership generally).
Green shall fully and promptly disclose to NavTech all Proprietary Subject
Matter made or conceived during the term of Green's employment with NavTech.
Green shall not knowingly or intentionally assign or otherwise relinquish any
rights in such Proprietary Subject Matter to any third party without the prior
written consent of the Board.
b. At the request and expense of NavTech, but without further
compensation to Green beyond the provisions of this Agreement, Green shall
promptly consent to such acts and execute, acknowledge and deliver all such
papers, including without limitation patent and copyright applications, as may
be necessary or desirable in the sole discretion of NavTech, to obtain, to
protect, to maintain, or to vest in NavTech the entire right, title and interest
in and to Proprietary Subject Matter, and in and to any patent applications,
patents, copyright applications, copyrights, investors' certificates or other
proprietary rights of any kind relating thereto, in all countries of the world,
including rendering such assistance as NavTech may request in any future
contemplated or pending litigation, Patent Office proceeding or other
proceeding.
c. (i) The Board may from time to time except from the provisions of
Sections 3.a. and 3.b. hereof Green's rights in Proprietary Subject Matter upon
a determination by the Board that such would not adversely affect, or materially
contribute to an adverse effect on, the results of operations or the financial
condition or prospects of NavTech or any of its subsidiaries. Any such
determination of the Board shall be by majority vote not including Green or
directors who have been designated by or who are affiliated with Green.
(ii) The exception set forth in Section 3.c.(i)
notwithstanding, Green will not assert against NavTech any claim for
infringement or misappropriation of any excepted Proprietary Subject Matter.
▇. ▇▇▇▇▇ will not knowingly or negligently disclose, or cause others to
disclose to NavTech or any of its subsidiaries, or induce NavTech or any of its
subsidiaries to use, any
information or material which is the property of other individuals or companies
and which there is any reason to believe is of a proprietary or confidential
nature, except with the consent of the owners of such information or material.
e. Since the services that Green will render to NavTech will include,
and Green shall have access to, NavTech's knowledge and information of a private
or confidential or secret nature, Green shall not during or after the term of
this Agreement, except as reasonably required in the normal course of NavTech's
business or as authorized in writing by the Board, publish, disclose or make use
of, or authorize anyone else to publish, disclose or otherwise make use of, any
such knowledge or information, whether of a technical or of a non-technical
nature, which in any way relates to the design, construction, manufacture or
sale of NavTech's services or products.
f. All documents, written information and other terms, including but
not limited to notes, sketches, manuals, blueprints, notebooks, products, tools,
fixtures, records and information relating to the services or products of
NavTech or its subsidiaries, made or obtained by Green through Green's provision
of services to, or employment by, NavTech, will be the exclusive property of
NavTech and shall be delivered by Green to NavTech upon termination of this
Agreement (whether such termination is caused by an act of NavTech or by Green
or by any other act), or any other time as requested by NavTech. Subject to the
confidentiality provisions of Section 3.e. hereof, Green may retain copies of
such papers as necessary for the sole purpose of protecting his legal interests.
4. Authorization; Board of Directors
NavTech represents and warrants to Green that the execution, delivery
and performance by NavTech of this Agreement and the Option Agreement attached
hereto as Exhibit A (the "Option Agreement"): (i) have been duly authorized by
all necessary corporate action of NavTech; (ii) do not violate or conflict with
any provision of NavTech's Certificate of Incorporation or bylaws as currently
in effect, copies of which are attached as Exhibits B and C hereto,
respectively; and (iii) do not and will not constitute or result in a breach of
any of the terms, provisions, conditions of, or constitute a default under or an
event which, with notice or lapse of time or both, would constitute a default
under any agreement, contract or other instrument to which NavTech is a party or
by which it is bound.
NavTech confirms to Green that by action of its Board of Directors
taken on April 7, 2000, Green was elected to the Board of Directors of NavTech,
effective upon the commencement of Green's employment pursuant to this Agreement
on May 1, 2000. Green shall serve as a member of NavTech's Board of Directors
during the employment period and the failure of Green to be elected and continue
as a Director (other than as a result of his voluntary resignation) during such
period shall constitute a "NavTech Breach" under this Agreement. Upon
termination or expiration of Green's employment for any reason, Green shall
promptly resign as a Director of NavTech and its subsidiaries, as the case may
be.
5. Governing Law; Arbitration; Injunctive and Other Relief
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware applicable to agreements made
and to be performed entirely in
Delaware. Each party hereby irrevocably consents to the exclusive jurisdiction
of the federal and state courts located in Chicago, Illinois with respect to any
actions which may arise in connection with this Agreement and are not required
by this Section 5 to be arbitrated. Except as provided in this Section 5, any
controversy or claim arising out of or relating to this Agreement, or the breach
thereof, shall be settled by arbitration administered by the American
Arbitration Association in accordance with its Commercial Arbitration Rules, and
judgment on the award rendered by the arbitrators may be entered in any court
having jurisdiction thereof.
Within fifteen (15) days after the commencement of arbitration, NavTech
and Green shall each select one person to act as arbitrator and the two selected
shall select a third arbitrator within ten (10) days of their appointment. If
the arbitrators so selected are unable or fail to agree upon the third
arbitrator, or if either party fails to appoint an arbitrator, such arbitrator
or arbitrators shall be selected by the American Arbitration Association.
Each of the parties to this Agreement acknowledges that a breach of
this Agreement may cause the other party irreparable harm which may not be
adequately compensated by money damages. Therefore, in the event of a breach or
threatened breach by a party, injunctive or other equitable relief will be
available to the other party, and any arbitrator acting pursuant to this
Agreement shall have the authority to provide such injunctive or other equitable
relief. Remedies provided herein are not exclusive, except as provided in
Section 2.f.
The arbitrators shall have the authority to award such remedies or
relief that a court of the State of Delaware could order or grant in an action
governed by Delaware law, including, without limitation, specific performance of
any obligation created under this Agreement, the issuance of an injunction, or
the imposition of sanctions for abuse or frustration of the arbitration process.
The arbitration proceedings shall be conducted in Chicago, Illinois.
Notwithstanding the foregoing, any party may bring and pursue an action
in any Federal or State court located in Chicago, Illinois seeking provisional
relief, including a temporary restraining order or preliminary injunction,
pending an arbitration proceeding. Any provisional relief obtained shall be
discontinued once the arbitrators have assumed jurisdiction and ordered such
discontinuance.
6. Miscellaneous
a. Survival. Notwithstanding anything in this Agreement to the
contrary, Sections 1.c., 2(e), 2(f), 2(i), 3, 5 and 6 shall survive any
termination of this Agreement.
b. Successors and Assigns. The provisions hereof shall inure to the
benefit of, and be binding upon, the successors, assigns, heirs, executors and
administrators of the parties hereto. However, nothing in this provision 6.b.
shall be construed to limit in any way Green's rights hereunder in the event of
a Change of Control as defined in Section 2.h. herein.
c. Entire Agreement; Effective Date; Amendment. This Agreement and the
Exhibits hereto together constitute the full and entire understanding and
agreement between the parties with regard to the subjects hereto and thereof.
None of this Agreement and the Exhibits hereto or any term hereof or thereof may
be amended, waived, discharged or terminated, except by a
written instrument signed by both of the parties hereto. This Agreement shall
become effective on May 1, 2000.
d. Notices, etc. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by certified or
registered mail, postage prepaid, delivered either by hand or by messenger, or
transmitted by electronic telecopy (fax) addressed:
If to NavTech, at:
Navigation Technologies Corporation
Attn: General Counsel
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If to Green, at:
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▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
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or at such other addresses as any party shall have furnished to the others in
writing. All such notices and other written communications shall be effective
(i) if mailed, seven (7) days after mailing (if mailed from outside the United
States, such mailing must be by airmail and said seven (7) days shall be
fourteen (14) days); (ii) if delivered, upon delivery; or (iii) if faxed, one
(1) business day after transmission and acknowledgment of receipt by telephone
or fax.
f. Delays or Omissions. No delay or omission to exercise any right,
power or remedy accruing to either party hereto upon any breach or default of
the other party under this Agreement shall impair any such right, power or
remedy of such party, nor shall it be construed to be a waiver of any such
breach or default, or an acquiescence therein, or any similar breach or default
thereafter occurring. No waiver of any single breach or default shall be deemed
a waiver of any other breach or default theretofore or thereafter occurring. Any
waiver, permit, consent or approval of any kind or character on the part of any
party hereto of any breach or default under this Agreement, or any waiver on the
part of any party hereto of any provisions or conditions of this Agreement, must
be made in writing and shall be effective only to the extent specifically set
forth in such writing. All remedies, either under this Agreement or by law or
otherwise afforded to any party, shall be cumulative and not alternative.
g. Separability. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Green and NavTech acknowledge that the restrictive covenants herein have been
negotiated in good faith and they believe that such restrictive covenants are
reasonable and are not more restrictive or broader than are necessary to protect
the interests of the parties hereto, and would not achieve their intended
purpose if they were on different terms or for periods of time shorter than the
periods of time provided herein or applied in more restrictive geographical
areas than are provided herein. Each party further acknowledges and agrees that
the NavTech Businesses are highly competitive, that NavTech would not enter into
this Agreement but for the covenants contained in Section 1.c., and that such
covenants are essential to protect the value of the NavTech Businesses. Green
and NavTech acknowledge and confirm that competition by Green would likely cause
irreparable injury to NavTech and its subsidiaries. If, however, it shall be
determined at any time by any arbitrator or court of competent jurisdiction that
this Agreement, as written, is unenforceable because the restrictions set forth
herein are unreasonable, the parties hereto agree that such portions as shall
have been determined to be unreasonably restrictive shall thereupon be deemed so
amended as to make such restrictions reasonable in the determination of such
arbitrator or court, and the said covenants, as so modified, shall be
enforceable between the parties to the same extent as if such amendments had
been made prior to the date of any alleged breach of said covenants.
h. Titles and Subtitles. The titles of the paragraphs of this Agreement
are for convenience of reference only and are not to be considered in construing
this Agreement.
i. Counterparts. This Agreement may be executed in counterparts, each
of which shall be an original, but all of which together shall constitute one
instrument. Each party may execute a separate counterpart which, taken together,
shall constitute as fully binding an agreement as if both executed the same
counterpart.
IN WITNESS WHEREOF, each of the parties has executed this Agreement as
of the date first above written.
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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NAVIGATION TECHNOLOGIES
CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
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Title: Chairman
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EXHIBIT A
NAVIGATION TECHNOLOGIES CORPORATION
STOCK OPTION AGREEMENT
I. NOTICE OF STOCK OPTION GRANT
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You have been granted an option ("Option") to purchase Common
Stock of the Company, subject to the terms and conditions of this Stock Option
Agreement ("Option Agreement" or "Agreement"), as follows:
Vesting Commencement Date May 1, 2000
Exercise Price per Share $0.85
Total Number of Shares Granted 35,000,000
Total Exercise Price $29,750,000
Term/Expiration Date: May 1, 2010
Vesting Schedule:
This Option may be exercised, in whole or in part, in
accordance with the following schedule:
1/4 of the Shares subject to the Option shall vest on the
Vesting Commencement Date set forth above. Thereafter, 1/4 of the Shares subject
to the Option shall vest on each of the first, second and third anniversaries of
the Vesting Commencement Date, subject to your Continuous Status as an Employee
on such Dates.
Acceleration Of Vesting Upon Termination Without Cause Or For A NavTech Breach
If you are terminated for reasons other than discharge for
Cause (as defined in your Employment Agreement with NavTech dated as of April
17, 2000 ("Employment Agreement")) or if you terminate your employment as a
result of a NavTech Breach (as defined
in your Employment Agreement), that portion of your Option which has not yet
vested as of the date of such termination will immediately vest and become
exercisable as of the date of such termination.
Acceleration Of Vesting Upon A Change Of Control Of The Company
In the event of a Change of Control of the Company (as defined
in your Employment Agreement), subject to your Continuous Status as an Employee
until such Change of Control, that portion of your Option which has not yet
vested as of the date of such event will immediately vest and become exercisable
simultaneously with the consummation of the Change of Control, and any portion
of your Option which has not been exercised prior to or in connection with the
Change of Control will be forfeited unless exercised within 90 days of the
consummation of the Change of Control, unless otherwise extended by the Board.
Acceleration Of Vesting Upon An Initial Public Offering
Further, in the event NavTech completes an initial sale in an
underwritten public offering registered under the Securities Act of 1933, as
amended, of shares of the Company's common stock having an aggregate offering
value of at least $25 million ("IPO"), subject to your Continuous Status as an
Employee until such IPO, that portion of your Option which has not yet vested as
of the date of such IPO will immediately vest simultaneously with the completion
of the IPO. However, that portion of your Option which immediately vests upon
the completion of such IPO will not become exercisable until such portion would
have been exercisable had such IPO not occurred.
Termination Period:
Except as otherwise provided herein, this Option, to the
extent vested, may be exercised for three (3) months after termination of your
employment or consulting relationship. In the event that you have voluntarily
terminated your employment, this Option shall be exercisable for sixty (60) days
after termination of your Continuous Status as an Employee. In the event of your
death, this Option may be exercised for a period of eighteen (18) months after
your death, or in the event you have a Disability, this Option may be exercised
for a period of twelve (12) months after your disability. In no event may this
Option be exercised later than the Term/Expiration Date as provided above.
If, during the term of your Employment Agreement, you
voluntarily terminate your employment for reasons other than a NavTech Breach or
Change of Control (as both terms are defined in your Employment Agreement) on a
date other than an anniversary of your Vesting Commencement Date, then for each
month remaining before the next anniversary of your Vesting Commencement Date:
(i) 1/48 of the Shares subject to the vested but unexercised portion of your
Option shall revert to the Company; or (ii) if no such shares are available, the
Company may rescind the exercised portion of your Option as to 1/48 of the
Shares issued to you
upon returning to you (a) the exercise price for such Shares plus the value of
any tax deduction available to NavTech with respect to such Shares or, (b) if
you have sold any such Shares, recover from you the net proceeds from the sale
of such Shares less (i) such exercise price and plus (ii) the value of any tax
deduction available to NavTech with respect to such Shares and interest on such
difference at an annual rate of the then prime rate on commercial loans plus one
percent (1%) from the date of the sale of such Shares to the date such
difference is paid by you to the Company.
II. DEFINITIONS
As used herein, the following definitions shall apply:
(a) "Applicable Laws" means the legal requirements relating to
the administration of stock option plans and the issuance of Shares thereunder
pursuant to U. S. state corporate laws, U.S. federal and state securities laws,
the Code and the applicable laws of any foreign country or jurisdiction where
Options or Stock Purchase Rights are, or will be, granted under the Plan.
(b) "Board" means the Board of Directors of the Company.
(c) "Code" means the Internal Revenue Code of 1986, as
amended.
(d) "Common Stock" means the Common Stock of the Company.
(e) "Company" means Navigation Technologies Corporation, a
Delaware corporation.
(f) "Continuous Status as an Employee" means that the
employment or consulting relationship with the Company, any Parent, or
Subsidiary, is not interrupted or terminated. Continuous Status as an Employee
shall not be considered interrupted in the case of (i) any leave of absence
approved by the Company or (ii) transfers between locations of the Company or
between the Company, its Parent, any Subsidiary, or any successor. A leave of
absence approved by the Company shall include sick leave, military leave, or any
other personal leave approved by an authorized representative of the Company.
(g) "Disability" means total and permanent disability as
defined in Section 22(e)(3) of the Code.
(h) "Employee" means being employed by the Company or any
Parent or Subsidiary of the Company. Neither service as a Director nor payment
of a director's fee by the Company shall be sufficient to constitute
"employment" by the Company.
(i) "Fair Market Value" means, as of any date, the value of
Common Stock determined as follows:
(a) If the Common Stock is listed on any established
stock exchange or a national market system, including without limitation the
Nasdaq National Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market,
its Fair Market Value shall be the closing sales price for such stock (or the
closing bid, if no sales were reported) as quoted on such exchange or system for
the last market trading day prior to the time of determination, as reported in
The Wall Street Journal or such other source as the Board deems reliable;
(b) If the Common Stock is regularly quoted by a
recognized securities dealer but selling prices are not reported, the Fair
Market Value of a Share of Common Stock shall be the mean between the high bid
and low asked prices for the Common Stock on the last market trading day prior
to the day of determination, as reported in The Wall Street Journal or such
other source as the Board deems reliable;
(c) In the absence of an established market for the
Common Stock, the Fair Market Value shall be determined in good faith by the
Board.
(j) "Notice of Grant" means the written notice above
evidencing certain terms and conditions of the Option granted herein. The Notice
of Grant is part of this Option Agreement.
(k) "Parent" means a "parent corporation", whether now or
hereafter existing, as defined in Section 424(e) of the Code.
(l) "Share" means a share of Common Stock.
(m) "Subsidiary" means a "subsidiary corporation", whether now
or hereafter existing, as defined in Section 424(f) of the Code.
III. AGREEMENT
1. Grant of Option. NavTech hereby grants to Green
("Optionee") an option (the "Option") to purchase the number of Shares, as set
forth in the Notice of Grant in Part I above, at the exercise price per share
set forth in the Notice of Grant (the "Exercise Price"), subject to the terms
and conditions of this Agreement. This Option is not intended to qualify as an
Incentive Stock Option under section 422 of the Code.
2. Exercise of Option.
(a) Right to Exercise. This Option is exercisable during
its term in accordance with the Vesting Schedule set out in the Notice of Grant
and the applicable provisions of this Option Agreement. In the event of
Optionee's death, Disability or other
termination of Optionee's employment, the exercisability of the Option is
governed by the applicable provisions of the Notice of Grant and this Option
Agreement.
(b) Method of Exercise. This Option is exercisable by
delivery of an exercise notice, in the form attached as Exhibit A (the "Exercise
Notice"), which shall state the election to exercise the Option, the number of
Shares in respect of which the Option is being exercised (the "Exercised
Shares"), and such other representations and agreements as may be required by
the Company. The Exercise Notice shall be signed by the Optionee and shall be
delivered in person or by certified mail to the Secretary of the Company. The
Exercise Notice shall be accompanied by payment of the aggregate Exercise Price
as to all Exercised Shares. This Option shall be deemed to be exercised upon
receipt by the Company of such fully executed Exercise Notice accompanied by
such aggregate Exercise Price.
No Shares shall be issued pursuant to the exercise of this
Option unless such issuance and exercise complies with all relevant provisions
of law and the requirements of any stock exchange or quotation service upon
which the Shares are then listed. Assuming such compliance, for income tax
purposes the Exercised Shares shall be considered transferred to the Optionee on
the date the Option is exercised with respect to such Exercised Shares.
3. Method of Payment. Payment of the aggregate Exercise Price
shall be by any of the following, or a combination thereof, at the election of
the Optionee:
(a) cash; or
(b) check; or
(c) delivery of a properly executed notice together with
such other documentation as the Company and the broker, if applicable, shall
require to effect an exercise of the Option and delivery to the Company of the
sale or loan proceeds required to pay the exercise price; or
(d) surrender of other Shares which have been owned by
the Optionee for more than six (6) months on the date of surrender, and have a
Fair Market Value on the date of surrender equal to the aggregate Exercise Price
of the Exercised Shares.
4. Non-Transferability of Option. This Option may not be
transferred in any manner otherwise than by will or by the laws of descent or
distribution or by transfer to Optionees spouse and descendants (whether natural
or adopted) and any entity in which you, your spouse and/or descendants
collectively own a 100% direct or indirect beneficial interest ("Permitted
Transferees"), provided that such Permitted Transferees have agreed in writing
to be bound by the provisions of this Agreement, and may be exercised during the
lifetime of Optionee only by the Optionee or Permitted Transferees. The terms of
this Option Agreement shall be binding upon the executors, administrators,
heirs, successors and assigns of both the Optionee and the Permitted
Transferees.
5. Term of Option. This Option may be exercised only within
the term set out in the Notice of Grant, and may be exercised during such term
only in accordance with the terms of this Option Agreement.
6. Lock-Up Period. Optionee hereby agrees that in connection
with any registration of the offering of any securities of the Company under the
Securities Act of 1933, as amended (the "Securities Act"), Optionee shall not
sell or otherwise transfer any of the Shares during the 180-day period (or such
longer or shorter period as may be requested in writing by the Managing
Underwriter and agreed to in writing by the Company) (the "Market Standoff
Period") following the effective date of a registration statement of the Company
filed under the Securities Act. The Company may impose stop-transfer
instructions with respect to securities subject to the foregoing restrictions
until the end of such Market Standoff Period.
7. Optionee's Representations. In the event the Shares have
not been registered under the Securities Act of 1933, as amended, at the time
this Option is exercised, the Optionee shall, if required by the Company,
concurrently with the exercise of all or any portion of this Option, deliver to
the Company his or her Investment Representation Statement in the form attached
hereto as Exhibit B.
8. Restrictions on Exercise. This Option may not be exercised
if the issuance of such Shares upon such exercise or the method of payment of
consideration for such shares would constitute a violation of any Applicable
Law. Optionee represents that when he exercises his Option, he will be
purchasing Option Shares for his own account and not on behalf of others.
Optionee understands and acknowledges that federal and state securities laws
govern and restrict his right to offer, sell or otherwise dispose of Shares
issued upon exercise of this Option unless unless such offer, sale or other
disposition thereof is registered under the Securities Act and state securities
laws, or in the opinion of the Company's counsel, such offer, sale or other
disposition is exempt from registration or qualification thereunder. Optionee
agrees that he will not offer, sell or otherwise dispose of any Shares in any
manner which would: (i) require the Company to file any registration statement
with the Securities and Exchange Commission (or any similar filing under state
law) or to amend or supplement any such filing or (ii) violate or cause the
Company to violate the Securities Act, the rules and regulations promulgated
thereunder or any other state or federal law, or (iii) violate any agreement
between yourself and the Company, including this letter. Optionee further
understands that the certificates for any Shares purchased will bear such
legends as the Company deems necessary or desirable in connection with the
Securities Act or other rules, regulations or laws.
9. Withholding of Taxes. The Company shall be entitled, if
necessary or desirable, to withhold from you from any amounts due and payable by
the Company to you (or secure payment from you in lieu of withholding) the
amount of any withholding or other tax due from the Company with respect to any
Shares issued pursuant to this Agreement, and the Company may defer such
issuance unless indemnified by you to its satisfaction.
10. Adjustments. In the event of a reorganization,
recapitalization, stock dividend or stock split, or combination or other change
in the shares of Common Stock, the Board will, in order to prevent the dilution
or enlargement of rights under your Option, make such adjustments in the number
and type of Shares covered by your Option and the Exercise Price specified
herein as may be reasonably determined by the Board to be appropriate and
equitable. The issuance by the Company of shares of stock of any class, or
options or securities exercisable or convertible into shares of stock of any
class, for cash or property, or for labor or services either upon direct sale,
or upon the exercise of rights or warrants to subscribe therefor, or upon
exercise or conversion of other securities, shall not affect, and no adjustment
by reason thereof shall be made with respect to, the number or price of Shares
of Common Stock subject to this Option.
11. Entire Agreement; Governing Law. The Notice of Grant and
this Option Agreement constitute the entire agreement of the parties with
respect to the subject matter hereof and supersede in their entirety all prior
undertakings and agreements of the Company and Optionee with respect to the
subject matter hereof, and may not be modified adversely to the Optionee's
interest except by means of a writing signed by the Company and Optionee. This
Agreement is governed by Delaware law, except for that body of law pertaining to
conflict of laws. Each party hereby irrevocably consents to the exclusive
jurisdiction of the federal and state courts located in Chicago, Illinois with
respect to any actions which may arise in connection with this Agreement and are
not required by Section 12 below to be arbitrated.
12. Arbitration. Except as provided in this Section 12, any
controversy or claim arising out of or relating to this Agreement, or the breach
thereof, shall be settled by arbitration administered by the American
Arbitration Association in accordance with its Commercial Arbitration Rules, and
judgment on the award rendered by the arbitrators may be entered in any court
having jurisdiction thereof.
Within fifteen (15) days after the commencement of
arbitration, NavTech and Green shall each select one person to act as arbitrator
and the two selected shall select a third arbitrator within ten (10) days of
their appointment. If the arbitrators so selected are unable or fail to agree
upon the third arbitrator, or if either party fails to appoint an arbitrator,
such arbitrator or arbitrators shall be selected by the American Arbitration
Association.
Each of the parties to this Agreement acknowledges that a
breach of this Agreement may cause the other party irreparable harm which may
not be adequately compensated by money damages. Therefore, in the event of a
breach or threatened breach by a party, injunctive or other equitable relief
will be available to the other party, and any arbitrator acting pursuant to this
Agreement shall have the authority to provide such injunctive or other equitable
relief.
The arbitrators shall have the authority to award such
remedies or relief that a court of the State of Delaware could order or grant in
an action governed by Delaware law,
including, without limitation, specific performance of any obligation created
under this Agreement, the issuance of an injunction, or the imposition of
sanctions for abuse or frustration of the arbitration process. The arbitration
proceedings shall be conducted in Chicago, Illinois.
Notwithstanding the foregoing, any party may bring and pursue
an action in any Federal or State court located in Chicago, Illinois seeking
provisional relief, including a temporary restraining order or preliminary
injunction, pending an arbitration proceeding. Any provisional relief obtained
shall be discontinued once the arbitrators have assumed jurisdiction and ordered
such discontinuance.
13. NO GUARANTEE OF EMPLOYMENT. OPTIONEE ACKNOWLEDGES AND
AGREES THAT THE VESTING OF SHARES PURSUANT TO THE VESTING SCHEDULE HEREOF IS
EARNED ONLY BY CONTINUING SERVICE AS AN EMPLOYEE AT THE WILL OF THE COMPANY (AND
NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED AN OPTION OR PURCHASING SHARES
HEREUNDER). OPTIONEE FURTHER ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT, THE
TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO
NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS AN
EMPLOYEE OR CONSULTANT FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND
SHALL NOT INTERFERE WITH OPTIONEE'S RIGHT OR THE COMPANY'S RIGHT TO TERMINATE
OPTIONEE'S EMPLOYMENT OR CONSULTING RELATIONSHIP AT ANY TIME, WITH OR WITHOUT
CAUSE.
OPTIONEE HAS READ AND UNDERSTANDS SECTION 12, WHICH DISCUSSES ARBITRATION.
OPTIONEE UNDERSTANDS THAT BY SIGNING THIS AGREEMENT, OPTIONEE AGREES TO SUBMIT
ANY CLAIMS ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT TO
BINDING ARBITRATION, AND THAT THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER OF
OPTIONEE'S RIGHT TO A JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES
RELATING TO ALL ASPECTS OF THIS RELATIONSHIP.
By your signature and the signature of the Company's representative below, you
and the Company agree that this Option is granted under and governed by the
terms of this Option Agreement. Optionee has reviewed this Option Agreement in
its entirety, has had an opportunity to obtain the advice of counsel prior to
executing this Option Agreement and fully understands all provisions of this
Option Agreement. Optionee further agrees to notify the Company upon any change
in the residence address indicated below.
OPTIONEE: NAVIGATION TECHNOLOGIES
CORPORATION
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Signature By
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Print Name Title
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Residence Address
CONSENT OF SPOUSE
The undersigned spouse of Optionee has read and hereby
approves the terms and conditions of this Option Agreement. In consideration of
the Company's granting his or her spouse the right to purchase Shares as set
forth in this Option Agreement, the undersigned hereby agrees to be irrevocably
bound by the terms and conditions of this Option Agreement and further agrees
that any community property interest shall be similarly bound. The undersigned
hereby appoints the undersigned's spouse as attorney-in-fact for the undersigned
with respect to any amendment or exercise of rights under this Option Agreement.
------------------------------
Spouse of Optionee
EXHIBIT A
NAVIGATION TECHNOLOGIES CORPORATION
EXERCISE NOTICE
Navigation Technologies Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
1. Exercise of Option. Effective as of today, ___________, 20__, the
undersigned ("Optionee") hereby elects to purchase _________ shares (the
"Shares") of the Common Stock of Navigation Technologies Corporation (the
"Company") under and pursuant to the Stock Option Agreement dated ___________
(the "Option Agreement"). The purchase price for the Shares shall be
$__________, as required by the Option Agreement.
2. Delivery of Payment. Optionee herewith delivers to the Company the
full purchase price for the Shares.
3. Representations of Optionee. Optionee acknowledges that Optionee has
received, read and understood the Option Agreement and agrees to abide by and be
bound by its terms and conditions.
4. Rights as Shareholder. Until the stock certificate evidencing such
Shares is issued (as evidenced by the appropriate entry on the books of the
Company or of a duly authorized transfer agent of the Company), no right to vote
or receive dividends or any other rights as a shareholder shall exist with
respect to the Optioned Stock, notwithstanding the exercise of the Option. A
share certificate for the number of Shares so acquired shall be issued to the
Optionee as soon as practicable after exercise of the Option.
5. Tax Consultation. Optionee understands that Optionee may suffer
adverse tax consequences as a result of Optionee's purchase or disposition of
the Shares. Optionee represents that Optionee has consulted with any tax
consultants Optionee deems advisable in connection with the purchase or
disposition of the Shares and that Optionee is not relying on the Company for
any tax advice.
6. Entire Agreement; Governing Law. The Option Agreement is
incorporated herein by reference. This Agreement and the Option Agreement
constitute the entire agreement of the parties and supersede in their entirety
all prior undertakings and agreements of the Company and
Optionee with respect
to the subject matter hereof, and such agreement is governed by the laws of
Delaware except for that body of laws pertaining to conflict of laws. Should any
provision of this Agreement be determined by a court of law to be illegal or
unenforceable, the other provisions shall nevertheless remain effective and
shall remain enforceable.
Submitted by: Accepted by:
OPTIONEE: NAVIGATION TECHNOLOGIES
CORPORATION
Signature By
Print Name Title
Address Date Accepted
EXHIBIT B
INVESTMENT REPRESENTATION STATEMENT
OPTIONEE:
COMPANY: NAVIGATION TECHNOLOGIES CORPORATION
SECURITY: COMMON STOCK
AMOUNT:
DATE:
In connection with the purchase of the above-listed Securities, the
undersigned Optionee represents to the Company the following:
a. Optionee is aware of the Company's business affairs and financial
condition and has acquired sufficient information about the Company to reach an
informed and knowledgeable decision to acquire the Securities. Optionee is
acquiring these Securities for investment for Optionee's own account only and
not with a view to, or for resale in connection with, any "distribution" thereof
within the meaning of the Securities Act of 1933, as amended (the "Securities
Act").
b. Optionee acknowledges and understands that the Securities constitute
"restricted securities" under the Securities Act and have not been registered
under the Securities Act in reliance upon a specific exemption therefrom, which
exemption depends upon, among other things, the bona fide nature of Optionee's
investment intent as expressed herein. In this connection, Optionee understands
that, in the view of the Securities and Exchange Commission, the statutory basis
for such exemption may be unavailable if Optionee's representation was
predicated solely upon a present intention to hold these Securities for the
minimum capital gains period specified under tax statutes, for a deferred sale,
for or until and increase or decrease in the market price of the Securities, or
for a period of one year or any other fixed period in the future. Optionee
further understands that the Securities must be held indefinitely unless they
are subsequently registered under the securities Act that the Company is under
no obligation to register the Securities. Optionee understands that the
certificate evidencing the Securities will be imprinted with a legend which
prohibits the transfer of the Securities unless they are registered or such
registration is not required in the opinion of counsel satisfactory to the
Company, a legend prohibiting their transfer without the consent of the
Commissioner of Corporations of the State of California and any other legend
required under applicable state securities laws.
c. Optionee is familiar with the provisions of Rule 701 and Rule 144,
each promulgated under the Securities Act, which in substance, permit limited
public resale of
"restricted securities" acquired, directly or indirectly from the issuer
thereof, in a non-public offering subject to the satisfaction of certain
conditions. Rule 701 provides that if the issuer qualifies under rule 701 at the
time of the grant of the Option to the Optionee, the exercise will be exempt
from registration under the Securities Act. In the event the Company becomes
subject to the reporting requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, ninety (90) days thereafter (or such longer period as any
market stand-off agreement may require) the Securities exempt under Rule 701 may
be resold, subject to the satisfaction of certain of the conditions specified by
Rule 144, including: (1) the resale being made through a broker in an
unsolicited "broker's transaction" or in transactions directly with a market
maker (as said term is defined under the Securities Exchange act of 1934); and,
in the case of an affiliate, (2) the availability of certain public information
about the Company, (3) the amount of Securities being sold during any three
month period not exceeding the limitations specified in rule 144(e), and (4) the
timely filing of a Form 144, if applicable.
In the event that the Company does not qualify under Rule 701 at the
time of grant of the Option, then the Securities may be resold in certain
limited circumstances subject to the provisions of rule 144, which requires the
resale to occur not less than one year after the later of the date the
requirements were sold by the Company or the date the Securities were sold by an
affiliate of the Company, within the meaning of rule 144; and, in the case of
acquisition of the Securities by an affiliate, or by a non-affiliate who
subsequently holds the Securities less than two years, the satisfaction of the
conditions set forth in sections (1), (2), (3) and (4) of the paragraph
immediately above.
d. Optionee further understands that in the event all of the applicable
requirements of Rule 701 or 144 are not satisfied, registration under the
Securities Act, compliance with Regulation A, or some other registration
exemption will be required; and that, notwithstanding the fact that Rules 144
and 701 are not exclusive, the Staff of the Securities and Exchange Commission
has expressed its opinion that persons proposing to sell private placement
securities other than in a registered offering and otherwise than pursuant to
Rules 144 or 701 will have a substantial burden of proof in establishing that an
exemption from registration is available for such offers or sales, and that such
persons and their respective brokers who participate in such transactions do so
at their own risk. Optionee understands that no assurances can be given that any
such other registration exemption will be available in such event.
Signature of Optionee:
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Date: ,
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