EXHIBIT 10.29
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FIRST AMENDMENT TO
EMPLOYMENT AGREEMENT
THIS FIRST AMENDMENT TO EMPLOYMENT AGREEMENT ("Amendment"), dated as
of July 29, 2004, is made by and between COOLSAVINGS, INC., a Delaware
corporation (the "Company"), and XXXXXXX XXXX ("Moog").
RECITALS:
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A. The Company's predecessor, xxxxxxxxxxx.xxx inc., and Moog
entered into an Employment Agreement (the "Employment Agreement") dated as
of July 30, 2001 (the "Effective Date").
B. The Company and Moog desire to amend the Employment Agreement
on the terms set forth herein to, among other things, extend the term of
Moog's employment and adjust the base salary paid to Moog.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Company
and Moog hereby agree as follows:
1. All references in the Employment Agreement to "xxxxxxxxxxx.xxx
inc., a Michigan corporation" shall be deemed to mean "CoolSavings, Inc., a
Delaware corporation".
2. All references in the Employment Agreement to "Articles of
Incorporation" and "Articles" shall be deemed to mean "Certificate of
Incorporation" and "Charter", respectively.
3. Section 2 of the Employment Agreement is hereby AMENDED and
RESTATED in its entirety as follows:
"2. TERM AND LOCATION OF EMPLOYMENT.
Subject to the provisions for termination provided below,
(i) the initial term of Moog's employment under this Agreement
shall commence on the Effective Date and shall continue until
July 29, 2006; and (ii) on each anniversary of the Effective
Date, the term of Moog's employment under this Agreement shall
be automatically extended by one (1) additional year (so that
upon extension the term of employment shall be a period of
three (3) years from the most recent anniversary), unless at
least forty-five (45) days prior to any such anniversary Moog
or the Company notifies the other party in writing that he or
it does not desire the term of employment to extend
automatically (the term of Moog's employment under this
Agreement at any given time is the "Agreement Term", and the
last day of the Agreement Term is the "Expiration Date").
Throughout the Agreement Term, Moog's employment shall be
within the immediate vicinity of Chicago, Illinois."
4. Section 4.b of the Employment Agreement is hereby AMENDED and
RESTATED in its entirety as follows:
"b. BASE COMPENSATION. As compensation for the services to
be performed hereunder, the Company shall pay to Moog, for each
calendar year of this Agreement, a base salary (the "Base
Salary"), payable in twenty-four (24) equal semi-monthly
payments. The Base Salary shall be Three Hundred Fifty-Three
Thousand Six Hundred Twenty-Five Dollars ($353,625)."
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5. Section 7.c of the Employment Agreement is hereby DELETED.
Moog hereby acknowledges and agrees that the award made to him effective as
of Janaury 1, 2003 under the Company's Long Term Incentive Plan was, among
other things, in consideration of the cancellation of the Company's
obligation to grant him the options referenced in Section 7.c of the
Employment Agreement.
6. Section 8.a of the Employment Agreement is hereby AMENDED and
RESTATED in its entirety as follows:
"a. Moog's employment under this Agreement may be terminated
prior to the Expiration Date under the following circumstances
ONLY:
(1) BY THE COMPANY, at any time other than during a
Disability Period under Section 4e, for any reason whatsoever
or for no reason, upon not less than ninety (90) calendar days
written notice to Moog;
(2) BY THE COMPANY, at any time for "cause" as defined
below, but only after written notice to Moog, and Moog's
failure to cure within thirty (30) calendar days of receipt of
such notice;
(3) BY MOOG, at any time for any reason whatsoever or
for no reason, upon not less than ninety (90) calendar days
written notice to the Company;
(4) BY MOOG, upon the occurrence of: (i) a failure to
pay to Moog any monies, when due under the terms of this
Agreement, within five (5) business days after Moog has
provided written notice of such failure to pay; or (ii) a
material breach of this Agreement by the Company that is not
cured within thirty (30) calendar days after Moog has provided
written notice that a breach has occurred;
(5) BY THE COMPANY, upon Moog's "permanent disability"
as defined in Section 8c below, without prior notice; and
(6) AUTOMATICALLY, upon Moog's death."
7. Section 9.a of the Employment Agreement is hereby AMENDED and
RESTATED in its entirety as follows:
"a. In the event that the Company terminates Moog's
employment pursuant to Section 8a(1) hereof, or if Moog
terminates his employment pursuant to Section 8a(4), the
Company shall promptly pay Moog the sum of: (i) all accrued
compensation (including vacation time) and bonus earned through
the effective date of termination and (ii) an amount equal to
the greater of the present value (determined as of the
effective date of termination using a 7% discount rate) of the
compensation owed Moog for the remainder of the Agreement Term
or the present value (determined as of the effective date of
termination using a 7% discount rate) of Moog's Base Salary
then in effect. Additionally, the Company shall continue to
pay and provide Moog all other benefits under this Agreement
for the remainder of the Agreement Term or one (1) year after
the effective date of termination, whichever is later;
provided, however, with respect to any benefit in which Moog is
no longer eligible to participate or which otherwise reasonably
cannot be continued for him, the Company, in its sole
discretion, shall either provide a substantially equivalent
form of benefit to Moog, or pay to Moog an amount equal to the
present value (determined as prescribed above with respect to
compensation) of the Company's cost of providing the benefit
(at the applicable cost in effect immediately prior to
termination of the benefit and including, in the case of any
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amounts relating to life insurance and disability insurance
under Sections 5(a) and 5(d), the applicable taxes thereon
resulting from any such payments) for the remainder of the
Agreement Term or one (1) year after the effective date of
termination, whichever is later. If Moog accepts alternative
employment at or after the effective date of termination, the
Company shall be relieved of any obligation to provide benefits
to Moog to the extent that the benefits are duplicative of
benefits provided to Moog by his new employer; provided,
notwithstanding the foregoing, if comparable health insurance
coverage for Moog and his qualified beneficiaries is not
provided by a new employer, Moog shall have the right to
convert his health insurance benefits to individual coverage
pursuant to COBRA. Should Moog so elect, the Company shall pay
for such COBRA coverage for 18 months (but in no event later
than the first anniversary of the Expiration Date) of health
care coverage beginning with the month contiguous with the last
effective date of Moog's health care coverage by the Company."
8. Section 15 of the Employment Agreement is hereby AMENDED and
RESTATED in its entirety as follows:
"15. NOTICES. All notices, requests, consents and other
communications required or permitted to be given under this
Agreement shall be given in writing and shall be deemed
sufficiently given, served and received for all purposes upon
the first to occur of actual receipt, delivery by generally
recognized overnight courier service, or three (3) days after
deposit in the United States mail, postage prepaid, registered
or certified, return receipt requested, addressed to the
address set forth below (or such other address as a party may
hereafter specify for that purpose by notice to the other
party):
If to the Company:
CoolSavings, Inc.
000 X. Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
with copies to:
Xxxxxxx X. Xxxxx
X.X. Xxx 0000
Xxxx, XX 00000-0000
Landmark Ventures VII, LLC
c/o Xxx X. Xxxxxxxx, III, Esquire
000 X. Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
If to Moog:
Xxxxxxx Xxxx
9. Except as modified by the provisions of this Amendment, all of
the terms of the Employment Agreement shall remain in full force and
effect.
10. This Amendment may be executed in any number of counterparts
and by each party on a separate counterpart, each of which, when so
executed and delivered, shall be deemed to be an original and all of which
taken together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment
as of the day and year first above written.
COMPANY:
COOLSAVINGS, INC., a Delaware corporation
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Title: SVP of Operations & CFO
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MOOG:
/s/ Xxxxxxx Xxxx
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Xxxxxxx Xxxx
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