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EXHIBIT 10.8C
EMPLOYMENT AGREEMENT
This Employment Agreement (the "AGREEMENT") is made and entered into
as of the ____ day of _____, 1999 (the "EFFECTIVE DATE"), by and between
XXX.XXX, Inc., a Delaware corporation (the "COMPANY"), and __________
("EXECUTIVE").
WHEREAS, Executive is currently the ______ of the Company; and
WHEREAS, Executive and the Company desire to enter into an agreement
to address certain terms of Executive's continued employment by the Company.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, it is hereby agreed by and between the parties hereto as
follows:
1. EMPLOYMENT; DUTIES. Subject to the terms and conditions set forth
herein, the Company agrees to employ Executive as its _____________ and
Executive hereby accepts such employment. Executive shall serve in an executive
capacity and shall perform such duties as are customarily associated with his
or her title, consistent with the Bylaws of the Company and as required by the
President or Board of Directors of the Company. During the term of his or her
employment with the Company, Executive will devote his or her best efforts and
substantially all of his or her business time and attention to the business of
the Company. This Agreement is for at-will employment.
2. SALARY AND BENEFITS
(a) BASE SALARY AND PERFORMANCE BONUS. Executive will receive for services
to be rendered hereunder an annualized base salary of _________ Dollars
($_______), payable on a bi-weekly basis, subject to adjustment in accordance
with the policies of the Company. Executive may receive such discretionary
performance bonuses as the Compensation Committee of the Board of Directors of
the Company, in its sole discretion and from time to time, deems appropriate.
All such payments are subject to ordinary withholdings for tax and social
security purposes.
(b) VACATION. Executive will accrue paid vacation time pursuant to the
Company's general vacation policy, which will not be less than the vacation
policy in effect on the date of this Agreement.
(c) BENEFITS. Executive will be entitled to participate in the Company's
standard Executive benefit programs, including medical and disability programs,
and in such additional benefit programs, as may in the future be made available
by the Company to the extent that he/she is eligible under the general
provisions thereof. In the case of any Sale of the Company, benefit programs
made available to Executive will be no less favorable benefit programs made
available to Executive in effect on the date of this Agreement.
(d) STOCK OPTIONS. Executive has received an incentive stock option to
purchase _____ (_______) shares of the Company's common stock at a price of
_____ ($____) per share (the
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"OPTIONS"). The Options will continue to vest according to their terms;
provided, however, that the Options will vest in full immediately prior to the
closing of a Sale of the Company.
(e) CELL PHONE. The Company will reimburse Executive's cell phone charges.
3. TERMINATION.
(a) MUTUAL AGREEMENT. This Agreement may be terminated at any time by the
mutual written agreement of the Company and Executive.
(b) TERMINATION OTHER THAN FOR CAUSE. If Executive is terminated by the
Company for any reason other than for Cause (as defined in Section 5 below),
and in exchange for Executive signing a waiver of claims against the Company as
of the termination date in a form acceptable to the Company, Executive will
receive the following such termination:
(i) all of Executive's stock options (including the Options) shall
be fully vested and may be exercised by Executive according to their terms;
(ii) The Company shall pay Executive all accrued compensation,
including payment for accrued but unused vacation days, unreimbursed expenses
to the date of termination as provided herein, as well as any expenses incurred
by the Executive with the Company's prior written approval, such as expenses
incurred in returning Company records; and
(iii) For twelve (12) full calendar months, pursuant to the
provisions of COBRA, the Company shall provide Executive and her family with
all group health benefits which the Company provided immediately prior to such
termination; provided, however, that such benefits will be terminated if
Executive subsequently joins or becomes employed by another organization which
provides Executive and her family with group health benefits comparable to
those provided by the Company under this paragraph. The Company shall be
responsible for paying all COBRA premiums for no more than twelve (12) months.
(c) FOR CAUSE. The Company may terminate this Agreement at any time for
Cause effective immediately upon written notice to Executive (except
termination for Cause which requires advance notice as set forth in the
definition of Cause set forth in Section 5 below). If the Company terminates
this Agreement for Cause, Executive shall not be entitled to any further
payments except (i) unreimbursed expenses to the date of termination and (ii)
any accrued compensation, including accrued benefits.
(d) DISABILITY OR DEATH. The Company may terminate this Agreement upon the
death or disability of Executive. For purposes of this Agreement, Executive
shall be considered disabled if she is unable to perform his/her duties under
this Agreement as a result of injury, illness or other disability for a period
of one hundred eighty (180) consecutive days, or one hundred eighty (180) days
in a three hundred sixty-five (365) day period, and shall not have returned to
the performance of duties within thirty (30) days after receiving written
notice of termination. If the Company terminates this Agreement upon the death
or disability of Executive, the Company
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shall pay Executive or her estate a lump sum equal to all accrued compensation,
including accrued benefits, and unreimbursed expenses to the date of
termination as provided herein.
(e) DATE OF TERMINATION; PAYMENT. In each of the foregoing cases, except
those provisions where termination is automatic upon notice to Executive,
termination is the date of actual termination, not the date notice of
termination is given. All payments for unpaid monthly compensation shall be
made based upon the normal payroll processing schedule and all payments for
reimbursement shall be made within forty-five (45) days after the end of the
month following the month in which termination occurred.
4. MISCELLANEOUS.
(a) ASSIGNMENT. This Agreement may not be assigned by any party hereto;
provided, however, that the Company may assign this Agreement in connection
with a Sale of the Company (as defined below) so long as the assignee assumes
all of the Company's obligations thereunder.
(b) NOTICES. Any notices provided hereunder must be in writing and shall be
deemed effective upon the earlier of personal delivery (including personal
delivery by telex) or the third day after mailing by first class mail to the
recipient at the address indicated below:
To the Company:
XXX.XXX, Inc.
0000 Xxxxx Xxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Attention: President/Chief
Executive Officer
Phone: (000) 000-0000
Fax: (000) 000-0000
To Executive:
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or to such other address or to the attention of such other person as the
recipient party will have specified by prior written notice to the sending
party.
(c) WAIVER. A waiver by the Company or Executive of a breach of any
provision of this Agreement by the other party shall not operate or be
construed as a waiver of any subsequent breach by the other party.
(d) GOVERNING LAW. This Agreement shall be deemed a contract made under,
and for all purposes shall be construed in accordance with, the laws of the
State of Colorado.
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(e) SEVERABILITY. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason,
the remaining provisions or portions of this Agreement shall be unaffected
thereby and shall remain in full force and effect to the fullest extent
permitted by law.
(f) ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties with respect to the subject matter hereof. This Agreement may be
changed only by an agreement in writing signed by the parties.
(g) COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
5. DEFINITIONS. As used herein, the following terms shall have the
following meanings:
(a) "CAUSE" as used herein shall mean: (i) dishonesty which is not the
result of an inadvertent or innocent mistake of Executive with respect to the
Company or any of its subsidiaries; (ii) willful misfeasance or nonfeasance of
duty by Executive that materially injures the reputation, business or business
relationships of the Company or any of its subsidiaries or any of their
respective officers, directors or Executives; (iii) any conduct which would be
sufficient to criminally charge Executive with the commission of a crime
involving moral turpitude or a crime other than a vehicle offense which could
reflect in some material fashion unfavorably upon the business or business
relationships of the Company or any of its subsidiaries or any of their
respective officers, directors or Executives; (iv) willful or prolonged absence
from work by Executive (other than by reason of disability due to physical or
mental illness) or failure, neglect or refusal by Executive to perform his/her
duties and responsibilities without the same being corrected upon thirty (30)
days prior written notice; or (v) if Executive materially violates any term of
this Agreement or the Company's employment policies and procedures (including
but not limited to the Company's policies with respect to sexual harassment and
discrimination) and such action or failure is not remedied or reasonable steps
to effect such remedy are not commenced within thirty (30) days of written
notice.
(b) "SALE OF THE COMPANY" as used herein shall mean any change in control
of the Company, including any (i) a sale of all or substantially all of the
assets of the Company, (ii) a merger or consolidation in which the Company is
not the surviving corporation or (iii) a reverse merger in which the Company is
the surviving corporation but the shares of Common Stock outstanding
immediately preceding the merger are converted by virtue of the merger into
other property, whether in the form of securities, cash or otherwise.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
XXX.XXX, INC. EXECUTIVE
By:
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