EXHIBIT 10.4
XXXXXXXXXX.XXX, INC.
XXXXXXXXX XXXXXXX EMPLOYMENT AGREEMENT
This Agreement is entered into as by and among XxxxXxxxxx.xxx, Inc. (the
"Company") and Xxxxxxxxx Xxxxxxx (the "Employee") this 4th day of November,
1999.
WHEREAS, the Company desires to retain Employee on a full-time basis in the
capacity of Chief Operating Officer of the Company, and Employee desires to
accept such employment; and
WHEREAS the parties desire and agree to enter into an employment
relationship by means of this Agreement;
NOW THEREFORE in consideration of the promises and mutual covenants herein
contained, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, it is mutually covenanted and
agreed by and among the parties as follows:
1. Term. Employee's employment with the Company pursuant to this
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Agreement shall commence on November 4, 1999 (the "Employment Commencement
Date"). This Agreement shall remain effective for 48 months from the Employment
Commencement Date.
2. Position and Duties. Employee shall be employed as Chief Operating
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Officer of the Company, reporting to the Chief Executive Officer and assuming
and discharging such responsibilities as are commensurate with Employee's
position. Employee shall perform her duties faithfully and to the best of her
ability and shall devote her full business time and effort to the performance of
her duties hereunder (except for any consulting for Bll Gross' idealab!).
3. Compensation.
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(a) Base Salary. While employed by the Company hereunder, Employee
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shall receive a minimum annual base salary of $150,000, payable in accordance
with the Company's normal payroll practices. Notwithstanding the foregoing, upon
the effectiveness of a fully underwritten initial public offering of the
Company's equity securities pursuant to a registration statement filed with the
Securities and Exchange Commission (an "IPO"), Employee's base salary shall be
increased to $187,500. A review of Employee's salary shall be given each year on
the anniversary of the Employment Commencement Date.
(b) Common Stock Option. On the Employment Commencement Date, the
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Company shall grant Employee options under the Company's 1998 Stock Plan to
purchase (i) up to 500,000 shares of the Company's Common Stock at an exercise
price per Share of $1.50 (the "Common Option" or "Common Shares") and (ii)
Employee shall be granted 25,000 options each quarter of the fiscal year
beginning on the Employment Commencement Date for four quarters (a total of
100,000 options) based on quarterly goals as reasonably determined by the Chief
Executive Officer of the Company (the "Subsequent Options"). Subject to
accelerated vesting as provided
elsewhere in this Agreement, the Common Shares (or restricted stock subject
thereto) shall be vested with respect to 25,000 Common Shares on the Employment
Commencement Date, shall vest as to an additional 50,000 Common Shares upon the
date that is six months following the Employment Commencement Date and shall
vest as to an additional 6.0714% of the Common Shares originally subject to the
Option each full three months thereafter, so as to be 100% vested on the date
that is four years after the Employment Commencement Date. In the event of an
IPO, the Common Option (or restricted stock subject thereto) shall accelerate
vesting as to 7.85% of the Common Shares originally subject to the Option, and
shall thereafter continue to vest at the same rate as prior to the IPO. The
Subsequent Options shall vest quarterly on a pro rata basis over a four year
period, except that the Subsequent Options shall be subject to accelerated
vesting as provided elsewhere in this Agreement. All vesting provided for in
this paragraph is subject to Employee remaining an employee, consultant or
member of the Board of the Company on each such vesting date. The Common Option
and Subsequent Options may be exercised prior to its vesting, including by means
of a promissory note bearing the lowest rate which will not subject Employee to
recognizing imputed taxable income, subject to Employee entering into the
Company's form of Restricted Stock Purchase Agreement which provides the Company
with the right to purchase unvested shares at the original exercise price in the
event of Employee's termination. The Common Option and Subsequent Options shall
be subject to the terms and conditions of the Company's 1998 Stock Plan and the
stock option agreements. To the extent the Common Option has not been exercised
prior to the IPO, following the IPO the Company agrees to promptly register the
exercise and potential resale of the shares subject to the Common Option on a
Form S-8 with the Securities and Exchange Commission, and to maintain the
effectiveness of such registration statement during the term of this Agreement
and for 12 months thereafter.
4. Other Benefits. Employee shall be entitled to participate in the
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employee benefit plans and programs of the Company, if any, to the extent that
her position, tenure, salary, age, health and other qualifications make her
eligible to participate in such plans or programs, subject to the rules and
regulations applicable thereto, on the same terms as other senior executives of
the Company, including without limitation, any car program generally available
to senior executives. The Company reserves the right to cancel or change the
benefit plans and programs it offers to its employees at any time.
5. Expenses. The Company shall reimburse Employee for reasonable travel,
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entertainment or other expenses incurred by Employee in the furtherance of or in
connection with the performance of Employee's duties hereunder, in accordance
with the Company's expense reimbursement policy as in effect from time to time.
6. Confidential Information. Employee agrees to maintain the
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confidentiality of all confidential and proprietary information of the Company
and agrees to enter into the XxxxXxxxxx.xxx, Inc. Employment, Confidential
Information and Inventions Assignment Agreement.
7. Severance. Employee agrees that notwithstanding the term of this
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Agreement set forth in Section 1, her sole remedy for termination of employment
under this Agreement are the severance benefits and payments provided for in
this Section 7.
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(a) Upon Involuntary Termination Without Cause in Year 1. Subject to
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Section 8, in the event that Employee's employment is terminated by the Company
for reasons other than "Cause" (as defined in Section 9) prior to the first
anniversary of the Employment Commencement Date, then Employee shall be entitled
to receive the following benefits from the Company:
(i) Salary Continuation. Continuation of Employee's Base Salary
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(as defined in Section 9) for a period of nine (9) months following Employee's
termination of employment ("9 Months' Severance Pay"). All such severance
payments shall be paid in accordance with the Company's normal payroll
practices. Such continuation of Base Salary shall be in lieu of any and all
severance payments which Employee is entitled to receive on the date of
Employee's termination of employment pursuant to any Company severance and
benefit plans and practices or pursuant to other agreements with the Company.
(ii) Benefits. The Company shall pay Employee's premiums for
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continuation coverage under title X of the Consolidated Budget Reconciliation
Act of 1985 ("COBRA") for health, dental and vision insurance in the same
proportion as it pays group health, dental and vision insurance premiums for
active senior executives (i.e., the Company and the Employee shall pay the same
portion of the total premiums as if Employee was an active senior executive). If
such coverage included Employee's dependents immediately prior to Employee's
termination, such dependents shall also be covered. The Company shall pay such
premium amounts until the earlier of (i) nine (9) months following the date of
Employee's termination, or (ii) the date upon which Employee and her covered
dependents become covered under another employer's group health, dental and
vision insurance plans. For purposes of COBRA, the date of the qualifying event
for Employee and her dependents shall be the date of Employee's termination of
employment by the Company. The benefits specified under this paragraph are
referred to herein as "9 Months' COBRA Benefits."
(iii) Stock Option Vesting Acceleration. The Common Stock Option
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and Subsequent Options (or restricted stock subject thereto) shall have its
vesting accelerated so as to be vested as to 35% of the Common Shares originally
subject thereto.
(iv) Post-Termination Option Exercisability. The post-
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termination exercise period with respect to vested shares under the Common Stock
Option and Subsequent Options shall automatically be extended to 12 months
following the date of termination of employment (the "12-Month Post Termination
Exercisability Benefit").
(b) Other Termination During Year 1. If, during the period ending on
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the first anniversary of the Employment Commencement Date, Employee's employment
is terminated by the Company for Cause, or by Employee for any reason (except
during the one year period following a "Change of Control," as defined herein,
which is covered by Section 7(e) hereof), including death or disability, then
Employee shall not be entitled to receive severance or other benefits pursuant
to Section 7(a), but may be eligible for those benefits (if any) as may then be
established under the
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Company's severance and benefit plans and policies existing at the time of such
termination, or with respect to death or disability, as specified under Sections
10 and 11 hereof.
(c) Upon Involuntary Termination Without Cause After Year 1 (Except
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During the One Year Period Following a Change of Control). Subject to Section 8,
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in the event that Employee's employment is terminated by the Company for reasons
other than "Cause" (as defined herein) on or after the first anniversary of the
Employment Commencement Date (except during the one year period following a
"Change of Control," as such term is defined herein), then Employee shall be
entitled to receive (i) 9 Months' Severance Pay, (ii) 9 Months' COBRA Benefits,
(iii) the 12-Month Post-Termination Exercisability Benefit, and (iv) accelerated
vesting with respect to the shares (including restricted stock) covered by the
Common Option and Subsequent Options to the same extent as if Employee had
remained employed with the Company through the end of the quarter (with respect
to the Employment Commencement Date), and in no event shall it be vested on the
date of such termination of employment, in total, as to less than 35% of the
shares originally subject to such options.
(d) Other Termination Following Year 1 (Except During the One Year
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Period Following a Change of Control). If, following the first anniversary of
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the Employment Commencement Date and during the term of this Agreement (except
during the one year period following a Change of Control, which is covered in
Section 7(e) hereof), Employee's employment is terminated by the Company for
Cause, or by Employee for any reason, including death or disability, then
Employee shall not be entitled to receive severance or other benefits pursuant
to Section 7(c), but may be eligible for those benefits (if any) as may then be
established under the Company's severance and benefit plans and policies
existing at the time of such termination, or with respect to death or
disability, as specified under Sections 10 and 11 hereof.
(e) Within 1 Year Following a Change of Control, Upon Involuntary
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Termination Without Cause or a Voluntary Resignation Within 60 days of a
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Constructive Termination. Subject to Section 8, in the event that Employee's
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employment is terminated by the Company for reasons other than Cause or by
Employee within 60 days following the occurrence of a "Constructive Termination"
(as defined in Section 9) during the period commencing upon a Change of Control
and ending one year later, then Employee shall be entitled to receive (i) 9
Months' Severance Pay, (ii) 9 Months' COBRA Benefits, (iii) the 12-Month Post-
Termination Exercisability Benefit, and (iv) accelerated vesting with respect to
50% of the shares (including restricted stock) covered by the Common Option and
the Subsequent Options that are not vested on the date of termination of
employment.
(f) Other Termination During the One Year Period Following a Change
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of Control. If, during the one year period following a Change of Control,
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Employee's employment is terminated by the Company for Cause, or by Employee for
any reason, other than within 60 days following a Constructive Termination, or
by virtue of Employee's death or disability, then Employee shall not be entitled
to receive severance or other benefits pursuant to Section 7, but may be
eligible for those benefits (if any) as may then be established under the
Company's severance and benefit
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plans and policies existing at the time of such termination, or with respect to
death or disability, as specified under Sections 10 and 11 hereof.
(g) No Mitigation. Employee shall not be required to mitigate the
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value of any severance payments or benefits contemplated by Section 7 of this
Agreement, nor shall any such payments or benefits be reduced by any earnings or
benefits that the Employee may receive from any other source.
8. Covenant Not to Compete. In the event Employee breaches the provisions
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of this Section 8, the severance benefits under Section 7 above shall
immediately terminate and Employee shall cease to earn or be entitled to any
additional payments under this Agreement.
(a) Covenant Not to Compete. Until the end of the nine month period
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following the date of Employee's termination triggering the provision of
severance benefits under Section 7 above, Employee will not directly or
indirectly engage in (whether as an employee, consultant, proprietor, partner,
director or otherwise), or have any ownership interest in, or participate in the
financing, operation, management or control of, any person, firm, corporation or
business that engages or participates anywhere in the world in selling
automobiles on the Internet. Ownership of less than 3% of the outstanding voting
stock of a publicly traded corporation will not constitute a violation of this
provision.
(b) Representations. The parties intend that the covenant contained
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in Section 8(a) shall be construed as a series of separate covenants, one for
each county, city and state (or analogous entity) and country of the world. If,
in any judicial proceeding, a court shall refuse to enforce any of the separate
covenants, or any part thereof, then such unenforceable covenant, or such part
thereof, shall be deemed eliminated from this Agreement for the purpose of those
proceedings to the extent necessary to permit the remaining separate covenants,
or portions thereof, to be enforced.
(c) Reformation. In the event that the provisions of this Section 8
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should ever be deemed to exceed the time or geographic limitations, or scope of
this covenant, permitted by applicable law, then such provisions shall be
reformed to the maximum time or geographic limitations, as the case may be,
permitted by applicable laws.
(d) Reasonableness of Covenants. Employee represents that she (i) is
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familiar with the covenants not to compete, and (ii) is fully aware of her
obligations hereunder, including, without limitation, the reasonableness of the
length of time, scope and geographic coverage of these covenants.
9. Definitions.
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(a) Base Salary. "Base Salary" shall mean Employee's annual Company
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salary at the rate in effect immediately preceding Employee's date of
termination with the Company.
(b) Cause. "Cause" shall mean (i) Employee's commission of an act of
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fraud or embezzlement upon the Company; (ii) Employee's being convicted of or
pleading guilty or
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nolo contendere to a felony involving fraud, dishonesty or moral turpitude,
(iii) Employee's willful and continued failure to perform substantially
Employee's material duties with the Company (other than failure resulting from
incapacity due to physical or mental illness) which is not remedied in a
reasonable period of time after written demand for substantial performance is
delivered to Employee by the Board of Directors which specifically identifies
the manner in which the Board of Directors believes Employee has not
substantially performed her duties; provided, however, that with respect to
clause (iii), such failure shall not constitute Cause if it is cured by Employee
within thirty (30) days following delivery to Employee of a written explanation
specifying the basis for the Company's beliefs with respect to such clause.
(c) Change of Control. "Change of Control" shall mean (i) the
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consummation of a merger or consolidation of the Company with any other
corporation, other than a merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) at least fifty percent (50%) of
the total voting power represented by the voting securities of the Company or
such surviving entity outstanding immediately after such merger or
consolidation; (ii) the consummation of the sale or disposition by the Company
of all or substantially all the Company's assets; or (iii) a change in the
composition of the Board occurring within a two-year period, as a result of
which fewer than a majority of the directors are Incumbent Directors. "Incumbent
Directors""shall mean directors who either (A) are directors of the Company as
of the date upon which this Agreement was entered into, or (B) are elected, or
nominated for election, to the Board with the affirmative votes of at least a
majority of those directors whose election or nomination was not in connection
with any transaction described in subsections (i) or (ii) above, or in
connection with an actual or threatened proxy contest relating to the election
of directors to the Company
(d) Constructive Termination. "Constructive Termination" shall mean
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(i) the assignment to Employee of duties not commensurate with her status as
Chief Operating Officer, or any material reduction of the Employee's duties,
authority or responsibilities or any reduction, whether material or not, in
Employee's title, relative to the Employee's duties, authority, responsibilities
or title as in effect immediately prior to such reduction, except if agreed to
in writing by the Employee; provided, however, that a reduction in duties,
title, authority or responsibilities solely by virtue of the consummation of a
"Change of Control," (for example, if the Company becomes a division of the
acquiring company in a Change of Control and Employee remains Chief Operating
Officer of the division of and is not made Chief Operating Officer of the
Acquirer shall not by itself constitute a "Constructive Termination" unless,
notwithstanding the title of divisional Chief Operating Officer, there is a
material reduction of Employee's duties, authority or responsibilities with
respect to the division, whether material or not, relative to Employees duties,
authority and responsibilities as in effect prior to such reduction), (ii) any
breach by the Company of the terms of this Agreement, (iii) any reduction in
Employee's compensation, including, without limitation, a reduction in Base
Salary, or (iv) the relocation of the Employee to a facility or a location more
than fifty (50) miles from the Employee's then present location, without the
Employee's written consent; provided, however, that such actions shall not
constitute Constructive Termination if they are cured by the Company within
thirty (30) days following delivery to the Company of a
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written explanation specifying the basis for the Employee's beliefs with respect
to such Constructive Termination events.
10. (a) Total Disability of Employee. Upon Employee's becoming
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permanently and totally disabled (as defined below) during the term of this
Agreement, employment hereunder shall automatically terminate, all payments of
compensation by the Company to Employee hereunder shall immediately terminate
(except as to amounts already earned) and all vesting of the Employee's Common
and Subsequent Options and restricted stock shall immediately cease; provided,
however, that upon the date of such termination of employment the Common and
Subsequent Options shall have their vesting accelerated to the same extent as
they would have vested had Employee remained employed by the Company through the
date of the next anniversary of the Employment Commencement Date, and in no
event shall they be vested on the date of termination of employment, in total,
as to less than 35% of the shares originally subject to such options. Moreover,
the Company agrees, at its own expense, to maintain a disability policy covering
all executives. Such policy will include a differentiated "top tier" coverage
feature which will provide for a higher payment level for the Employee than for
other executives in the Company. For the purposes of this Agreement, disability
shall mean the absence of Employee from her duties with the Company on a full-
time basis for a period of six months as a result of incapacity due to mental or
physical illness which is determined to be total and permanent by a physician
selected by the Company or its insurers and acceptable to Employee or her legal
representative (such agreement as to acceptability not be withheld
unreasonably).
(b) Temporary Disability of Employee. In the event that Employee
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becomes temporarily disabled, Employee's salary and benefits and vesting shall
continue for a period of nine weeks, if after such nine week period Employee
remains temporarily disabled, the Board of Directors shall determine whether
Employee has become totally disabled and subject to Section 10 hereof.
11. Death of Employee. If Employee dies while employed by the Company
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pursuant to this Agreement, all payments of compensation by the Company to
Employee hereunder shall immediately terminate (except as to amounts already
earned, which shall be paid to her estate) and all vesting of the Employee's
Stock Options and Restricted Stock shall immediately cease. Employee shall be
reimbursed for premiums paid on a life insurance policy for $1.75 million
dollars payable to beneficiaries as designated by Employee.
12. Arbitration.
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(a) Employee agrees that any dispute or controversy arising out of,
relating to, or in connection with this Agreement, or the interpretation,
validity, construction, performance, breach, or termination thereof, shall be
settled by expedited, binding arbitration to be held in Los Angeles, California
in accordance with the National Rules for the Resolution of Employment Disputes
then in effect of the American Arbitration Association (the "Rules"). The
arbitrator may grant injunctions or other relief in such dispute or controversy.
The decision of the arbitrator shall be final, conclusive and binding on the
parties to the arbitration. Judgment may be entered on the arbitrator's decision
in
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any court having jurisdiction. The Company agrees to advance Employee all costs,
including attorney's fees, relating to such arbitration. Employee agrees to
reimburse the Company for such costs in the event the arbitrator determines that
the Company has not breached this Agreement in such a manner as to give rise to
financial damages to the Employee in an amount greater than $5,000.
(b) The arbitrator(s) shall apply California law to the merits of any
dispute or claim, without reference to rules of conflicts of law. The
arbitration proceedings shall be governed by federal arbitration law and by the
Rules, without reference to state arbitration law. The Employee hereby consents
to the personal jurisdiction of the state and federal courts located in
California for any action or proceeding arising from or relating to this
Agreement or relating to any arbitration in which the parties are participants.
(c) EMPLOYEE HAS READ AND UNDERSTANDS THIS SECTION, WHICH DISCUSSES
ARBITRATION. EMPLOYEE UNDERSTANDS THAT BY SIGNING THIS AGREEMENT, EMPLOYEE
AGREES TO SUBMIT ANY CLAIMS ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH
THIS AGREEMENT, OR THE INTERPRETATION, VALIDITY, CONSTRUCTION, PERFORMANCE,
BREACH OR TERMINATION THEREOF TO BINDING ARBITRATION, AND THAT THIS ARBITRATION
CLAUSE CONSTITUTES A WAIVER OF EMPLOYEE'S RIGHT TO A JURY TRIAL AND RELATES TO
THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS OF THE EMPLOYER/EMPLOYEE
RELATIONSHIP, INCLUDING BUT NOT LIMITED TO, DISCRIMINATION CLAIMS.
13. Right to Advice of Counsel. Employee acknowledges that he has had the
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right to consult with counsel and is fully aware of her rights and obligations
under this Agreement.
14. Successors.
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(a) Company's Successors. Any successor to the Company (whether
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direct or indirect and whether by purchase, lease, merger, consolidation,
liquidation or otherwise) to all or substantially all of the Company's business
and/or assets shall assume the obligations under this Agreement and agree
expressly to perform the obligations under this Agreement in the same manner and
to the same extent as the Company would be required to perform such obligations
in the absence of a succession. For all purposes under this Agreement, the term
"Company," as applicable, shall include any successor to the Company's business
and/or assets which executes and delivers the assumption agreement described in
this subsection (a) or which becomes bound by the terms of this Agreement by
operation of law.
(b) Employee's Successors. Without the written consent of the
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Company, Employee shall not assign or transfer this Agreement or any right or
obligation under this Agreement to any other person or entity. Notwithstanding
the foregoing, the terms of this Agreement and all rights of Employee hereunder
shall inure to the benefit of, and be enforceable by, Employee's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
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15. Notice Clause. All notices, requests, demands and other communications
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called for hereunder shall be in writing and shall be deemed given if (i)
delivered personally or by facsimile, (ii) one (1) day after being sent by
Federal Express or a similar commercial overnight service, or (iii) three (3)
days after being mailed by registered or certified mail, return receipt
requested, prepaid and addressed to the parties or their successors in interest.
16. Governing Law. This Agreement shall be governed by and construed in
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accordance with the internal substantive laws, but not the choice of law rules,
of the state of California.
17. Severability. The invalidity or unenforceability of any provision of
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this Agreement, or any terms hereof, shall not affect the validity or
enforceability of any other provision or term of this Agreement.
18. Integration. This Agreement, the Common Option agreement, the
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Subsequent Option agreements and the Employment, Confidential Information and
Inventions Assignment Agreement represent the entire agreement and understanding
between the parties as to the subject matter herein and supersedes all prior or
contemporaneous agreements whether written or oral. No waiver, alteration, or
modification of any of the provisions of this Agreement shall be binding unless
in writing and signed by duly authorized representatives of the parties hereto.
19. Taxes. All payments made pursuant to this Agreement shall be subject
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to withholding of applicable income and employment taxes.
20. Legal Fee Reimbursement. The Company agrees to directly pay Employees
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legal fees associated with reasonable entering into this Agreement up to $5,000
upon receiving invoices for such services.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the
case of the Company by its duly authorized officers, as of the day and year
first above written.
XXXXXXXXXX.XXX, INC.
/s/ Xxxxxx X. Xxxxxx
__________________________________
Xxxxxx Xxxxxx
Chief Executive Officer
EMPLOYEE:
/s/ Xxxxxxxxx Xxxxxxx
__________________________________
Xxxxxxxxx Xxxxxxx
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