EXHIBIT 10.3
XXXXXXXXXX.XXX, INC.
XXXXXX XXXXXX EMPLOYMENT AGREEMENT
This Agreement is entered into as by and among XxxxXxxxxx.xxx, Inc. (the
"Company") and Xxxxxx Xxxxxx (the "Employee") this 8th day of November, 1999.
WHEREAS, the Company desires to retain Employee on a full-time basis in the
capacity of Chief Executive 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
----
Agreement shall commence on November 8, 1999 (the "Employment Commencement
Date"). This Agreement shall remain effective for 36 months from the Employment
Commencement Date.
2. Position and Duties. Employee shall be employed as Chief Executive
-------------------
Officer of the Company, reporting to the Company's Board of Directors (the
"Board") and assuming and discharging such responsibilities as are commensurate
with Employee's position. Employee shall perform his duties faithfully and to
the best of his ability and shall devote his full business time and effort to
the performance of his duties hereunder. Additionally, Employee will be
appointed as a member of the Board promptly following the Employment
Commencement Date.
3. Compensation.
------------
(a) Base Salary. While employed by the Company hereunder, Employee
-----------
shall receive a minimum annual base salary of $95,000, payable in accordance
with the Company's normal payroll practices; provided, that such annual base
salary shall be increased to $150,000 on and after the first anniversary of the
Employment Commencement Date. 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
$250,000.
(b) Sign On Bonus. Employee shall be entitled to receive a bonus of
-------------
$400,000, payable to Employee in one lump sum upon the signing of this agreement
by both parties hereto (the "Sign On Bonus").
(c) IPO Bonus. Employee shall be entitled to receive a bonus of
---------
$250,000 upon the IPO. Such bonus shall be paid to Employee in one lump sum upon
the date of the IPO.
(d) Bonus. While employed hereunder, Employee shall be eligible to
-----
receive an annual bonus that is targeted to be 60% of Employee's annual base
salary based upon the achievement of milestones established by the Board or its
compensation committee. Such bonus, if due, shall be paid within 90 days
following the end of the Company's fiscal year.
(e) Common Stock Option. On the Employment Commencement Date, the
-------------------
Company shall grant Employee an option under the Company's 1998 Stock Plan to
purchase up to 1,200,000 shares of the Company's Common Stock (the "Common
Shares"), at an exercise price per Share of $1.50 (the "Common Option"). Subject
to accelerated vesting as provided elsewhere in this Agreement, the Common
Option (or restricted stock subject thereto) shall be vested with respect to
60,000 Common Shares on the Employment Commencement Date, shall vest as to an
additional 120,000 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. Upon the first to occur (but not upon the second
to occur) of (i) an IPO, or (ii) a "Change of Control" (as such term is defined
herein), 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. 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 may be exercised prior to its vesting, including
by means of a fully recourse 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. If no IPO has occurred by
January 1, 2001, then Employee (or his heirs) shall have the right (until such
time as an IPO occurs) to sell to the Company vested shares of stock that he
purchased pursuant to the Common Option that he has owned for at least 6 months
at a price equal to 100% of the then fair market value of such shares, as
determined by the Board in good faith, up to a maximum dollar amount of $630,000
(the "Put Right"). The Put Right shall exist without regard as to whether or not
Employee is providing services to the Company. The Common Option shall be
subject to the terms and conditions of the Company's 1998 Stock Plan and the
stock option agreement evidencing the Common Option. 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.
(f) Preferred Stock Option. On the Employment Commencement Date, the
----------------------
Company shall grant Employee an option to purchase up to 200,000 shares of the
Company's Series D Preferred Stock (the "Preferred Shares"), at an exercise
price per Share of $15.76 (the "Preferred Option"). Subject to accelerated
vesting as provided elsewhere in this Agreement, the Preferred Option shall be
vested with respect to 10,000 Preferred Shares on the Employment Commencement
Date, shall vest as to an additional 20,000 Preferred Shares upon the date that
is six months
-2-
following the Employment Commencement Date and shall vest as to an additional
6.0714% of the Preferred 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. Upon the first to occur (but not upon the
second to occur) of (i) an IPO, or (ii) a "Change of Control" (as such term is
defined herein), the Preferred Option shall accelerate vesting as to 7.85% of
the Preferred Shares originally subject to the Option, and shall thereafter
continue to vest at the same rate as prior to the IPO. 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 Preferred
Option may not be exercised prior to its vesting. Otherwise, the Preferred
Option shall be subject to an agreement containing terms and conditions similar
to those governing stock options granted under the Company's 1998 Stock Plan.
Following the IPO, the Company agrees to promptly register the exercise and
potential resale of the shares subject to the Preferred 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
--------------
employee benefit plans and programs of the Company, if any, to the extent that
his position, tenure, salary, age, health and other qualifications make him
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,
--------
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
------------------------
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
---------
Agreement set forth in Section 1, his sole remedy for termination of employment
under this Agreement are the severance benefits and payments provided for in
this Section 7.
(a) Upon Involuntary Termination Without Cause in Year 1. Subject to
----------------------------------------------------
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 (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
-3-
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
--------
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 his 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 his or 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
---------------------------------
(or restricted stock subject thereto) and the Preferred Stock Option shall have
their vesting accelerated so as to be vested as to 35% of the Common Shares and
Preferred Shares originally subject thereto (i.e., assuming no stock splits or
similar changes in equity structure of the Company effected without the receipt
of consideration, the Common Stock Option will then be vested as to 420,000
shares, the Preferred Stock Option will be vested as to 70,000 shares and the
remaining 65% of the shares originally subject to each option shall be unvested
and shall revert to the Company).
(iv) Post-Termination Option Exercisability. The post-
--------------------------------------
termination exercise period with respect to vested shares under the Common Stock
Option and Preferred Stock Option 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
-------------------------------
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 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
--------------------------------------------------------------
During the One Year Period Following a Change of Control). Subject to Section 8,
---------------------------------------------------------
in the event that Employee's employment is terminated by the Company for reasons
other than "Cause" (as
-4-
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 the
Preferred Option to the same extent as if Employee had remained employed with
the Company through the end of the next fiscal quarter of the Company, and in no
event shall they 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
--------------------------------------------------------------
Period Following a Change of Control). If, following the first anniversary of
-------------------------------------
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 disability or
death, as specified under Sections 10 and 11 hereof.
(e) Within 1 Year Following a Change of Control, Upon Involuntary
-------------------------------------------------------------
Termination Without Cause or a Voluntary Resignation Within 60 days of a
------------------------------------------------------------------------
Constructive Termination. Subject to Section 8, in the event that Employee's
------------------------
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 Preferred Option that are not vested on the date of termination of
employment.
(f) Other Termination During the One Year Period Following a Change of
------------------------------------------------------------------
Control. If, during the one year period following a Change of Control,
-------
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 plans and policies existing at the time of such
termination, or with respect to disability or death, as specified under Sections
10 and 11 hereof.
(g) No Mitigation. Employee shall not be required to mitigate the
-------------
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.
-5-
8. Covenant Not to Compete. In the event Employee breaches the provisions
-----------------------
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
-----------------------
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
---------------
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
-----------
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 he (i) is
---------------------------
familiar with the covenants not to compete, and (ii) is fully aware of his
obligations hereunder, including, without limitation, the reasonableness of the
length of time, scope and geographic coverage of these covenants.
9. Definitions.
-----------
(a) Base Salary. "Base Salary" shall mean Employee's annual Company
-----------
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
-----
fraud or embezzlement upon the Company; (ii) Employee's being convicted of or
pleading guilty or 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 his duties; provided, however, that
with respect to clause (iii), such failure shall not constitute Cause if it is
cured by Employee within thirty (30)
-6-
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
-----------------
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; (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); or (iv) Xxxx Xxxxx' idealab!, Inc. or, in the
aggregate, its affiliates, ceasing to be the largest holder of voting stock of
the Company.
(d) Constructive Termination. "Constructive Termination" shall mean
------------------------
(i) the assignment to Employee of duties not commensurate with his status as
Chief Executive 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 Executive
Officer of the division of and is not made Chief Executive Officer of the
Acquirer and does not sit on the board of directors of the acquirer shall not by
itself constitute a "Constructive Termination" unless, notwithstanding the title
of divisional Chief Executive 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 a
reduction in the Annual Bonus formula, 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 written explanation specifying the basis for the Employee's beliefs with
respect to such Constructive Termination events.
10. Total Disability of Employee. Upon Employee's becoming permanently and
----------------------------
totally disabled (as defined below) during the term of this Agreement,
employment hereunder shall
-7-
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 Preferred Options and restricted stock
shall immediately cease; provided, however, that upon the date of such
termination of employment the Common and Preferred 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 his 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 his legal representative (such
agreement as to acceptability not be withheld unreasonably).
11. Death of Employee. If Employee dies while employed by the Company
-----------------
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 his estate) and all vesting of the Employee's
Stock Options and Restricted Stock shall immediately cease. As soon as
practicable following the Employment Commencement Date and while Employee
remains employed pursuant to this Agreement, the Company agrees to pay the
premiums on a $1 million term life insurance policy covering the Employee for
the benefit such beneficiaries as are selected in writing by Employee under the
policy.
12. Arbitration.
-----------
(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 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
-8-
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
--------------------------
right to consult with counsel and is fully aware of his rights and obligations
under this Agreement.
14. Successors.
----------
(a) Company's Successors. Any successor to the Company (whether
--------------------
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
---------------------
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.
15. Notice Clause. All notices, requests, demands and other communications
-------------
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
-------------
accordance with the internal substantive laws, but not the choice of law rules,
of the state of California.
-9-
17. Severability. The invalidity or unenforceability of any provision of
------------
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
-----------
Preferred Option agreement 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
-----
to withholding of applicable income and employment taxes; provided, however,
that the Sign On Bonus shall not be subject to federal employment tax
withholding.
20. Legal Fee Reimbursement. The Company agrees to directly pay Employee"s
-----------------------
reasonable legal fees associated with entering into this Agreement up to $15,000
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.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Title: Chairman of the Board
----------------------------------
EMPLOYEE:
/s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx Xxxxxx
-10-
[LETTERHEAD OF XXXXXXXXXX.XXX]
November 12, 1999
Xxxxxx Xxxxxx
00000 Xxxxxxxxx Xxxx.
Xxxxxx Xxxx, XX 00000
Dear Xx. Xxxxxx:
The purpose of this letter is to amend the terms of your Employment
Agreement dated November 8, 1999 (the "Agreement") to provide: (i) The Company
hereby agrees to pay your $400,000 in accordance with Section 3(b) of the
Agreement (the "Sign On Bonus") on April 3, 2000; and (ii) Section 19 of the
Agreement shall be amended to provide that applicable federal taxes shall be
withheld from your Sign On Bonus.
Sincerely,
/s/ XXXXXXXXX XXXXX
Xxxxxxxxx Xxxxx
Chief Financial Officer
XxxxXxxxxx.xxx, Inc.
Agreed & Accepted:
/s/ XXXXXX X. XXXXXX
--------------------------------
Xxxxxx X. Xxxxxx, Employee
