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EXHIBIT 10.1.2
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of June 15, 1998, by and between xxxxxxxxx.xxx
inc., a Delaware corporation, having an office address at 0000 Xxx Xxxxxx,
Xxxxxx, Xxxxx 00000 ("xxxxxxxxx.xxx" or the "Company") and the individual named
in Schedule 1 hereto, residing at the address listed in Schedule 1 (hereinafter
referred to as the "Executive").
W I T N E S S E T H:
WHEREAS, the Company desires to hire and retain the Executive as an
Executive to perform certain services for the Company.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and on the attached Schedule, and for other good and valuable
consideration the receipt of which is hereby acknowledged, the Company and the
Executive hereby agree as follows:
1. Employment of Executive.
(a) The Company hereby employs the Executive in the
capacity and for the position set forth on Schedule 1 attached hereto.
Executive hereby accepts such employment with the Company upon the terms and
conditions hereinafter set forth. Executive further agrees to serve as a
member of the Board of Directors of the Company (the "Board") during the term
of this Agreement.
(b) The duties of the Executive shall include the duties
and services described in Schedule 1, which duties and services shall at all
times be subject to the direction, approval and control of the Board and shall
include such other duties, as may be assigned by the Board commensurate with
the responsibilities normally associated with Executive's position.
2. Services to be Rendered.
(a) Executive shall perform such duties as are usually
performed by an Executive with the position set forth in Schedule 1 of a
business similar in size and scope as the Company and such other reasonable
additional duties as may be prescribed from time to time by the Company which
are reasonable and consistent with the Company's operations, taking into
account Executive's expertise and job responsibilities. During the term of
this Agreement, Executive agrees to devote his full time and attention to the
business and affairs of the Company to the extent necessary to discharge the
responsibilities assigned to Executive and to use reasonable efforts to perform
faithfully and efficiently such responsibilities. The Executive will use
Executive's best efforts to promote the interests of the Company.
(b) During this Agreement, it shall not be a violation of
this Agreement for Executive to (i) serve on corporate, civic or charitable
boards or committees; (ii) deliver lectures, fulfill speaking engagements or
teach at educational institutions; or (iii) manage personal
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investments or companies in which personal investments are made so long as such
activities do not significantly interfere with the performance of Executive's
responsibilities with the Company and which companies are not in direct
competition with the Company. Any income incurred by Executive outside the
scope of his employment and permitted pursuant to the provisions hereof, shall
inure to the benefit of Executive, and the Company shall not claim any
entitlement thereto; provided, however, that any income derived by Executive
related to the business of the Company, including, without limitation,
compensation for serving on boards of directors of companies in which the
Company has a significant investment, shall be paid over to the Company as and
when received.
(c) During the term of this Agreement, the Company shall
furnish, at Executive's principal place of employment, an office, furnishings,
secretary and such other facilities commensurate and suitable to his position
and adequate for the performance of his duties hereunder.
3. Term.
(a) Term of Employment. The term of this Agreement (the
"Term") shall commence effective as of the date hereof (the "Commencement
Date"), and shall continue until December 31, 2001, unless (i) extended by the
mutual agreement of the Company and the Executive or (ii) extended or
terminated as hereinafter provided.
(b) Termination of Employment by the Company for Cause.
The Company may terminate Executive's employment if such termination is for
"Cause" (as defined herein) and Cause is not cured by Executive within any
available cure period provided below. Such notice must set forth in reasonable
detail the facts underlying the claim of Cause. For the purposes of this
Agreement, "Cause" shall be defined as any of the following, which act or
omission is in bad faith by Executive without a reasonable belief that such act
or omission would benefit the Company:
(i) a default or breach by Executive of
any of the provisions of this Agreement materially detrimental to the
Company which is not cured within 15 days following written notice
thereof;
(ii) actions by Executive constituting
fraud, embezzlement or dishonesty which result in a conviction of a
criminal offense not yet overturned on appeal;
(iii) actions by Executive in
intentionally furnishing materially false, misleading, or omissive
information to the Company's Board of Directors that is materially
detrimental to the Company;
(iv) actions constituting a breach of the
Sections 7 or 8 of this Agreement which is materially detrimental to
the Company;
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(v) acts or omissions which constitute
willful failure to follow reasonable and lawful directives of the
Company's Board of Directors, which are consistent with Executive's
job responsibilities and performance which is not cured within 15
days following written notice thereof.
Upon termination for Cause, Executive shall immediately cease to have any power
of his position, but shall nevertheless be given a reasonable opportunity to
access his office with the Company for the purpose of retrieving his personal
goods and files. If any conviction pursuant to Section 3(b) above is
overturned on appeal, Executive will be deemed to have been terminated without
Cause as of the effective date of his earlier termination.
(c) Termination Without Cause. The Company has the right
to terminate this Agreement without Cause upon written notice, subject to
payment by the Company of the Deferred Compensation described in Section 4(c)
herein. In such event, Executive shall cease to have any power of his office
as of the effective date of the termination specified in such written notice.
(d) Termination by Executive. Executive may terminate
this Agreement upon 30 days' written notice after the occurrence of a material
default of this Agreement by the Company, which default is not cured within the
30-day notice period. Such notice shall set forth in reasonable detail the
acts underlying the default. If Executive terminates this Agreement under this
Section 3(d), Executive shall be entitled to the Deferred Compensation as
described in Section 4(c) herein.
(e) Termination by Executive Upon Change of Control.
Executive may terminate this Agreement upon 30 days' written notice at any time
within 6 months following the occurrence of a "Change of Control", but only
prior to Executive's receiving a notice of termination by the Company for
Cause. Upon such termination Executive shall be entitled to the Deferred
Compensation described in Section 4(c) herein. Change of Control is defined for
the purposes of this Agreement as any of the following acts:
(i) The acquisition by any person, entity
or "group" within the meaning of Section 13(d) or 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
other than a person, entity or "group" that includes either Executive
or Xxxx X. Xxxxxx, of beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) of (A) prior to the
consummation of a Qualified Public Offering, more than 50% of the
combined voting power of the then outstanding voting securities
entitled to vote generally in the election of the Board of Directors
or (B) after the consummation of a Qualified Public Offering, more
than 25% of the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of the Board of
Directors; or
(ii) If the individuals who serve on the
Board of Directors as of the Commencement Date (the "Incumbent Board")
cease for any reason to constitute at least a majority of the Board of
Directors; provided, however, any person who becomes a director
subsequent to the Commencement Date, whose election or nomination for
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election was approved by a vote of at least a majority of the
directors then constituting the Incumbent Board, shall for purposes of
this Agreement be considered a member of the Incumbent Board; or
(iii) Approval by the Company's equity
holders of (A) a merger, reorganization or consolidation whereby the
Company's equity holders immediately prior to such approval do not,
immediately after consummation of such reorganization, merger or
consolidation own more than 50% of the combined voting power of the
surviving entity's then outstanding voting securities entitled to vote
generally in the election of directors; or (B) liquidation or
dissolution of the Company; or (C) the sale of all or substantially
all of the assets of the Company.
(f) Termination by Executive for Good Reason. Executive
may terminate this Agreement upon 30 days' written notice if (i) Executive's
duties are materially diminished or altered in a manner contrary to Section 1
and 2 of this Agreement, (ii) Executive's title is altered in a material and
adverse manner, (iii) Executive's reporting relationship is materially and
adversely modified, (iv) Executive's Base Salary, as provided hereunder, is
diminished, (v) the methodology for calculating Executive's Bonus Compensation,
as provided hereunder, is adversely (from the Executive's point of view)
altered or (vi) the Company shall relocate its executive offices more than 40
miles from their current location (collectively "Good Reason"). Upon such
termination Executive shall be entitled to the Deferred Compensation described
in Section 4(c) herein.
(g) Termination by Executive Without Good Reason.
Executive may terminate this Agreement without Good Reason upon 30 days'
written notice. Upon the termination date specified in such written notice
(which date shall be not more than 30 days following the date of such notice)
Executive shall cease to have any power of his office.
(h) Automatic Extension. This Agreement shall be
automatically extended for successive one-year periods at the end of the
initial term and each extended term thereafter, unless either party provides
written notice of termination to the other party at least three months prior to
the expiration of the initial or such extended term, respectively. In the
event the Company terminates this Agreement or fails to renew this Agreement or
does not permit the automatic extension to occur at the end of any term hereof,
Executive shall be entitled to receive his Deferred Compensation under Section
4(c) hereof.
4. Compensation.
(a) Base Salary.
(i) Prior to the consummation of a Qualified
Public Offering (as defined below), the Executive shall receive a base
salary as set forth on Part I of Schedule 4(a) attached hereto.
Immediately following the consummation of a Qualified Public Offering,
the Executive shall receive a base salary as set forth on Part II of
Schedule 4(a). Such increase in base salary shall be effective as of
the date on which the Qualified Public Offering is consummated.
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(ii) Each January, commencing with January
1999, the Board of Directors of the Company shall review Executive's
performance and the Board of Directors may in its sole discretion
elect to increase the salary then paid to Executive above the amount
set forth on Schedule 4(a)(i), however, there shall be absolutely no
obligation to do so.
(iii) For the purposes of this Agreement,
Qualified Public Offering shall mean the effectiveness of a
registration statement under the Securities Act of 1933, as amended,
covering any of the issued and outstanding shares of capital stock of
the Company (the "Stock"), and the completion of a sale of such Stock
thereunder, if, as a result of such sale, (A) the Company becomes a
reporting company under Section 12(b) or 12(g) of the Exchange Act,
(B) such Stock is traded on the New York Stock Exchange or the
American Stock Exchange or quoted on the Nasdaq National Market and
(C) the Company raises gross proceeds of not less than $20 million at
a pre-money valuation of the Company of not less than $120 million.
(b) Bonus Compensation.
(i) The Executive shall receive as "Bonus
Compensation" each year, the amount calculated in accordance with
Schedule 4(b) attached hereto.
(ii) If at anytime hereafter, the Company
shall adopt a bonus program, an option program or any other form of
equity participation for senior executive officers of the Company, the
Executive shall be eligible to participate in such bonus program,
option program or other form of equity participation in a manner and
capacity commensurate with his position and duties.
(c) Deferred Compensation.
(i) When Due. Executive (or his estate
as the case may be) shall be entitled to the Deferred Compensation as
calculated below, the initial installment of which is to be paid
within 30 days after the event giving rise to the payout (except as
provided below) in the event that Executive's employment is terminated
for any of the following reasons herein: (A) death of Executive; (B)
termination by the Company without cause pursuant to Section 3(c); (C)
termination by Executive upon default by the Company pursuant to
Section 3(d); (D) termination by Executive after a Change of Control
pursuant to Section 3(e); (E) termination by the Executive pursuant to
Section 3(f); (F) termination by the Company pursuant to Section 3(h);
or (G) termination by the Company pursuant to Section 7(a).
(ii) Amount. The Deferred Compensation
shall be the amount ("Base Deferred Compensation") which is calculated
as the greater of (A) the Base Salary payments Executive would have
received had his employment continued for the remaining term of this
Agreement (including yearly increases calculated at the maximum
increase for the prior two years); or (B) an amount equal to 150% of
the higher annual compensation earned by Executive in the past two
years (including both Base Salary and
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Bonus Compensation). In addition to the Base Deferred Compensation,
Executive shall be entitled to the following (which, together with the
Base Deferred Compensation and the Bonus Deferred Compensation (as
defined below) shall be collectively called the "Deferred
Compensation") all of the benefits and personal perquisites otherwise
provided in this Agreement (including automobile expenses) during that
period of time which is the greater of (X) the remaining term of this
Agreement, or (Y) one year (the "Deferral Period") and an amount equal
to the pro rata portion of the Bonus Compensation for the year in
which executive's employment is terminated determined on the basis of
the number of days elapsed in such year prior to such termination (the
"Bonus Deferred Compensation"). The Deferred Compensation herein
shall be deemed liquidated damages resulting from the Company's
termination of this Agreement and shall be Executive's sole and
exclusive remedy for any such termination. Deferred Compensation
shall not be diminished or offset by reason of any earnings by
Executive subsequent to the date of termination.
(d) Payment of Deferred Compensation. Except as provided
below, the Deferred Compensation shall be paid in monthly installments over the
12 months following the event giving rise to a Deferred Compensation. If such
termination is a result of the death of Executive, the initial Deferred
Compensation shall be made within 15 days after the personal representative of
Executive's estate notifies the Company that Letters of Administration have
been filed in the probate proceeding. The Company shall have the option at all
times during the term of this Agreement to maintain key man life insurance on
Executive's life to cover the cost of any Deferred Compensation due to
Executive. If such key man life insurance is maintained, and the Deferred
Compensation is due as a result of Executive's death, the Deferred Compensation
shall be paid 100% in cash upon Executive's death. The Bonus Deferred
Compensation shall be paid in a single lump sum within 90 days of the end of
the year in which Executive's employment is terminated.
5. Benefits.
(a) Executive shall be entitled to a minimum of 4 weeks
paid vacation during each 12-month period during the term of this Agreement.
In addition, Executive shall be entitled to paid time off for the same holidays
as other employees of the Company as established by the Board.
(b) Following the consummation of a Qualified Public
Offering, the Company shall provide Executive with the full and exclusive use
of a high-quality automobile; provided, however, that the Company shall not pay
more than $500 per month to provide such automobile to Executive. The Company
shall also pay all maintenance, insurance and gasoline expenses incidental to
such automobile. Executive shall have the right to receive a new automobile
every three years. In addition to the new automobile, Executive may purchase
the old automobile or assume the lease payments at the end of each three-year
period or in the event of termination for any reason. The purchase price shall
be the lower of the wholesale blue book value or the auction black book value.
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(c) Executive shall be entitled to participate (in a
manner and capacity commensurate with his position and duties), subject to
eligibility and other terms generally established by the Board, in any employee
benefit plan (including but not limited to life insurance plans, stock option
plans, group hospitalization, health, dental care (which health insurance shall
also cover Executive's dependents), profit sharing and pension, bonus and other
benefit plans), as may be adopted or amended by the Company from time to time.
(d) Following the consummation of a Qualified Public
Offering, the Company shall pay the premium on a "whole life" insurance policy
on the life of Executive in the initial face amount of three times Base Salary
during the term hereof. Executive shall have the right to designate the
beneficiaries of such policies. The Company shall pay timely all premiums on
such life insurance, and on demand provide Executive due proof of such payment.
The insurance companies issuing such policies shall be authorized to give
Executive, upon his request, any information regarding the status of any such
policy. Any dividend declared upon such policy shall be applied to the premium.
(e) Following the consummation of a Qualified Public
Offering, the Company shall pay all initial membership fees and monthly dues on
behalf of Executive for Executive's membership in one business luncheon club,
and one airline club; provided that the aggregate initial membership fees and
the annual membership fees of such clubs in the aggregate do not exceed $1,000
and $500, respectively. Executive shall pay all expenses for such club use
that is not otherwise reimbursable as a Company business expense.
(f) The Company will reimburse Executive for the cost of
reasonable tax and financial preparation and planning, including services that
may be requested by Executive from time to time pertaining to this Agreement.
(g) Executive shall receive any such additional benefits
that any other executive officer may receive during the term of this Agreement
at the reasonable discretion of the Board.
6. Expenses.
The Company shall reimburse the Executive against appropriate
vouchers or other receipts for business expenses reasonably incurred by
Executive in the performance of Executive's duties pursuant to the terms
hereof. Executive is authorized to incur reasonable traveling and other
expenses in connection with the Company's business and in performance of his
duties under this Agreement. When engaging in business related air travel, the
executive shall fly coach on all domestic flights and shall fly business class
on all international flights. In addition, upon the submission of appropriate
vouchers or other receipts the Company shall reimburse Executive for tolls and
reasonable business car phone charges. Executive shall submit vouchers or
other receipts once per calendar month and shall be reimbursed by Company
within 30 days of submission.
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7. Disability.
(a) In the event of the death of the Executive during the
Term, the Executive's employment hereunder shall automatically terminate. In
the event that Executive shall become mentally or physically Disabled (as
hereinafter defined) so as to be unable to fully perform his duties herein,
Executive shall continue to receive his monthly salary for each of the first
nine months or any part thereof of any continuous Disability, less any amounts
received by him under any disability insurance paid for by the Company. If
upon the expiration of nine months of continuous Disability, Executive remains
incapacitated (hereinafter, "Permanent Disability"), the Company shall have the
right to immediately terminate this Agreement. Such "Permanent Disability"
shall be established by a written certification submitted by a medical doctor
agreed to by the Executive and the Company. In the absence of agreement, the
Company and the Executive shall each nominate a qualified medical doctor and
these two doctors shall select a third qualified medical doctor, which third
doctor shall make the determination as to total disability. After the
termination of these time periods, Executive will receive disability insurance
proceeds for the term of such disability.
(b) The Company shall reimburse Executive for the
premiums of all insurance policies covering the long and short-term disability
of Executive not to exceed $10,000 per annum (as adjusted for increases in the
Consumer Price Index) during the term hereof.
(c) Disability for the purposes of this Agreement shall
mean that the Executive is judged disabled pursuant to the Company's long term
disability policy.
8. Non-Competition, Non-Solicitation, and Non-Disparagement
During the Term and for a period of two years thereafter, except if
the Company breaches its obligations to pay the Deferred Compensation pursuant
to Section 4(c) hereof:
(a) Executive shall not, directly or indirectly, enter
into or participate (whether as owner, partner, shareholder, officer, director,
salesman, consultant, employee, principal or in any other relationship or
capacity) in any business operating or providing services in the United States
within any State in which the Company or its affiliates are operating or
providing services as of the date of termination which is, or owns, manages or
performs the following business activities and services: aggregating,
broadcasting or distributing audio or video programming over the Internet or
intranets, including without limitation as principal or on behalf of others and
the development or operation of any network to accomplish same (a "Competing
Entity").
(b) Company and Executive understand and agree that the
scope and duration of the covenants contained in this Section 8 are reasonable
both in time and geographical area and are fairly necessary to protect the
Company's legitimate business interests. Such covenants shall survive the
termination of Executive's employment except as otherwise provided herein. The
parties further agree that such covenants shall be regarded as divisible and
shall be operative as to time and geographical area to the extent that they may
be made so and, if any part of such covenants is declared invalid or
unenforceable, the validity and enforceability of the remainder shall not be
affected. Executive hereby warrants to Company that Executive's compliance
with
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each of the restrictive covenants set forth in this Agreement will not, upon
the termination, of Executive's employment with the Company for any reason
whatsoever, cause Executive to be unable to earn a living that is suitable and
acceptable to Executive.
(c) Executive understands and agrees that, due to the
highly competitive nature of the Company's industry, the breach of any
covenants set out in this Section 8 will cause irreparable injury to the
Company for which it will have no adequate remedy at law. Therefore, the
Company shall be entitled, in addition to such other remedies as it may have
hereunder, to a temporary restraining order and to preliminary and permanent
injunctive relief in state or federal court for any breach or threatened breach
of Section 8. Nothing herein, however, shall be construed as prohibiting the
Company from pursuing any other remedies available to it for such breach or
threatened breach, including the recovery of damages from Executive,
(d) Executive shall not, without the prior written
consent of the Company, directly or indirectly, (i) solicit, request, cause or
induce any person who is at the time, or 12 months prior thereto had been, an
employee of or a consultant of the Company to leave the employ of or terminate
such person's relationship with the Company or (ii) employ, hire, engage or be
associated with, or endeavor to entice away from the Company any such person,
or any customer of the Company or its affiliates or (iii) attempt to limit or
interfere with any business agreement or relationship existing between the
Company and/or its affiliates with a third party.
(e) Executive shall not disparage the business reputation
of the Company (or its management team) or take any actions that are harmful to
the Company's goodwill with its customers, content providers, bandwidth or
other network infrastructure providers, vendors, employees, the media or the
public. Executive recognizes that such actions would cause irreparable harm
for which there is no adequate remedy at law and that the Company may seek in
state or federal court, and is entitled to a temporary restraining order and to
preliminary and permanent injunctive relief in state or federal court to stop
any such conduct or statements for any breach or threatened breach of this
Section 8(e) during the term of this Agreement and for a period of two years
thereafter.
(f) Company spends considerable amounts of time, money
and effort in developing and maintaining good will in its industry. Executive
agrees the covenants contained within this Section 8: (i) are reasonable and
necessary in all respects to protect the goodwill, trade secrets, confidential
information, and business interests of Company; (ii) are not oppressive to
Executive; and (iii) do not impose any greater restraint on Executive than is
reasonably necessary to protect the goodwill, trade secrets, confidential
information and legitimate business interests of Company.
(g) Executive acknowledges and agrees that promises made
by the Company in this Agreement such as (i) the establishment of a term of
employment (rather than employment at will) and (ii) the commitment to provide
severance compensation in the event of the termination of Executive's
employment for reasons other than Cause (subject to certain requirements on the
part of Executive), constitute one form of consideration for Executive's
agreement to and compliance with the restrictive covenants in this Agreement.
Executive
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acknowledges and agrees that Company's agreement to provide Executive with
access to Company's confidential and proprietary information is a separate form
of consideration supporting the restrictive covenants in this Agreement.
Executive acknowledges and agrees that the Company's agreement to permit the
use of the Company's goodwill with the Company's customers, investors and
content providers is a separate form of consideration supporting the
restrictive covenants in this Agreement. Executive acknowledges and agrees
that the Company's commitment to providing Executive with unique skill
development and training is a separate form of consideration supporting the
restrictive covenants in this Agreement.
9. Non-Disclosure of Confidential Information.
(a) The Executive acknowledges that as a result of
Executive's employment by the Company, the Executive, both during and after the
Term, will obtain secret and confidential information concerning the business
of the Company and its affiliates, including, without limitation, financial
information, trade secrets, information concerning the operations, sales,
personnel, suppliers, customers, costs, profits and pricing policies, "know
how" and certain business methodologies (the "Confidential Information").
(b) During the Term and thereafter, the Executive shall
exercise all due and diligent precautions to protect the integrity of the
customer lists, mailing lists and sources thereof, statistical data and
compilations, agreements, contracts, manuals, memoranda, notes, records,
reports or other documents and any and all other materials embodying any
Confidential Information (the "Confidential Materials") and, upon the Company's
request in writing, Executive shall immediately return to the Company all such
Confidential Materials (and copies thereof) then in Executive's possession or
control.
(c) Executive shall not at any time, either during the
Term of this Agreement or thereafter, divulge to any person or entity any
Confidential Information or deliver or permit any person or entity to obtain
any Confidential Materials except (i) when required in the course of performing
Executive's duties hereunder, (ii) with the Company's express written consent,
(iii) where required to be disclosed by court order, subpoena or other
government process or (iv) the Executive shall have no responsibility for the
divulgence of any information which is in the public domain. If the Executive
shall be required to make disclosure pursuant to the provisions of clause (iii)
of the preceding sentence, the Executive promptly, but in no event more than 48
hours after learning of such subpoena, court order or other governmental
process, shall notify, by personal delivery or by electronic means, confirmed
by mail, the Company and, at the Company's expense, Executive shall (x) take
all reasonably necessary steps required by the Company to defend against the
enforcement of such subpoena, court order or other government process and (y)
permit the Company to intervene and participate with counsel of its choice in
any proceeding relating to the enforcement thereof.
(d) Upon termination of Executive's employment with the
Company, the Executive shall promptly deliver to the Company all Confidential
Materials relating to the Company and its affiliates, which Executive may then
possess or have under Executive's control; provided, however, that Executive
shall be entitled to retain copies of such documents reasonably
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necessary to document Executive's financial relationship (both past and future)
with the Company.
(e) The Executive acknowledges that (i) any breach of the
provisions of these Sections 8 and 9 may cause substantial and irreparable harm
to the Company for which the Company would have no adequate remedy at law and
(ii) the provisions of this Agreement are reasonable and necessary for the
protection of the business of the Company and its affiliates.
10. Remedies.
(a) If Executive commits a breach, or threatens to commit
a breach, of any of the provisions of Sections 8 or 9, the Company shall have
the right and remedy:
(i) to have the provisions of this
Agreement specifically enforced by any court having equity
jurisdiction or through arbitration as provided herein; and
(ii) to require Executive to account for
and to pay over the Company all damages suffered by the Company
(including consequential and incidental damages) as the result of any
transactions constituting a breach of any of the provisions of
Sections 8 and 9, and Executive hereby agrees to account for and pay
over such damages to the Company;
(b) The Executive acknowledges that the services being
rendered hereunder to the Company are of a special, unique and extraordinary
character and that any such breach or threatened breach may cause substantial
and irreparable injury to the Company and that money damages will not provide
an adequate remedy to the Company. In any equitable proceeding to enforce the
provisions hereof, the Company shall not have to prove irreparable harm.
(However, in a suit for damages Company shall be required to prove the amount
of damages actually sustained.)
(c) Each of the rights and remedies enumerated in Section
10 (a) shall be independent of the other, and shall be severally enforceable,
and such rights and remedies shall be in addition to, and not in lieu of any
other rights and remedies available to the Company under law or equity.
(d) If any provision of Section 8 or 9 is held to be
unenforceable because of the scope, duration or area of its applicability, the
court making such determination shall have the power to modify such scope,
duration, or area, or all of them, and such provision or provisions shall then
be enforceable in such modified form.
(e) The Company and Executive agree that any dispute or
controversy arising between any of the parties to this Agreement, or any person
or entity in privity therewith, out of the transactions effected and
relationships created in connection herewith, including any dispute or
controversy involving the formation, terms or construction of this Agreement,
regardless of kind or character, will be resolved through binding arbitration
held in Dallas County, Texas. The
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only disputes not subject to mandatory, binding arbitration are requests for
injunctive relief. With respect to the arbitration of any dispute or
controversy, each party understands that:
(i) arbitration is final and binding on
the parties;
(ii) each party is waiving its right to
seek certain remedies in court, including to right to a jury trial;
(iii) discovery in arbitration is
different and more limited than discovery in litigation; and
(iv) an arbitrator's award need not
include factual findings or legal reasoning, and any party's right to
appeal or to seek modification of a ruling by the arbitrator is
strictly limited.
Each party to this Agreement will submit any dispute or controversy to
arbitration before the American Arbitration Association ("AAA") within five
days after receiving a written request to do so from the other party. If any
party fails to submit a dispute or controversy to arbitration as requested,
then the requesting party may commence the arbitration proceeding. The Federal
Arbitration Act will govern the proceeding and all issues raised by this
Agreement to be arbitrated. Each party to this Agreement will be bound by the
determination of any arbitrator or arbitration panel empaneled by the AAA to
adjudicate the dispute. Judgment on any arbitration award may be entered in
any court of competent jurisdiction.
Any party to this Agreement may bring an action including a summary or
expedited proceeding, to counsel arbitration of any such dispute or controversy
in a court of competent jurisdiction and, further, may seek provision or
ancillary remedies, including temporary or injunctive relief in connection with
such dispute or controversy in a court of competent jurisdiction, provided that
the dispute or controversy is ultimately resolved through binding arbitration
conducted in accordance with the terms and conditions of Section 10(e). If any
party institutes legal proceedings in an effort to resist arbitration and is
unsuccessful in doing so, the prevailing party is entitled to recover, from the
losing party, its legal fees and out-of-pocket expenses incurred in connection
with the defense of such legal proceedings.
11. Indemnification.
(a) To the full extent allowed by law, the Company shall
hold harmless and indemnify the Executive, his executors, administrators or
assigns, against any and all judgments, penalties (including excise and similar
taxes), fines, settlements and reasonable expenses (including attorneys' fees)
actually incurred by the Executive (net of any related insurance proceeds or
other amounts received by the Executive or paid by or on behalf of the Company
on the Executive's behalf in compensation of such judgments, penalties, fines,
settlements or expenses) in connection with any threatened, actual or completed
action, suit or proceeding, whether civil, criminal, arbitral, administrative
or investigative, or any appeal in such action, suit or proceeding, to which
the Executive was, is or is threatened to be made a named defendant or
respondent (a "Proceeding"), because such person is or was a director or
officer of the Company,
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or is or was serving at the request of the Company as a director, officer,
partner, venturer, proprietor, trustee, employee, agent or similar functionary
(an "Affiliate Executive") of another corporation, partnership, joint venture,
sole proprietorship, trust, employee benefit plan or other enterprise (each, a
"Company Affiliate"). Upon authorization of indemnification of the Executive
by the Board of Directors in accordance with the applicable provisions of the
Delaware General Corporation Law (the "DGCL"), the Executive shall be presumed
to be entitled to such indemnification under this Agreement upon submission of
a Claim (as hereinafter defined). Thereafter, the Company shall have the
burden of proof to overcome the presumption that the Executive is so entitled.
Such presumption shall only be overcome by a judgment or other final
adjudication, after all appeals and all time for appeals have expired ("Final
Determination"), adverse to the Executive establishing that such
indemnification is not permitted hereunder or by law. An actual determination
by the Company (including its Board of Directors, legal counsel, or its
stockholders) that the Executive has not met the applicable standard of conduct
for indemnification shall not be a defense to the action or create a
presumption that the Executive has not met the applicable standard of conduct.
The purchase, establishment or maintenance of any Indemnification Arrangement
shall not in any way diminish, restrict, limit or affect the rights and
obligations of the Company or of the Executive under this Agreement except as
expressly provided herein, and the execution and delivery of this Agreement by
the Company and the Executive shall not in any way diminish, restrict, limit or
affect the Executive's right to indemnification from the Company or any other
party or parties under any other indemnification arrangement, the Certificate
of Incorporation or Bylaws of the Company, or the DGCL.
(b) Subject only to the provisions of this Section 11(b),
as long as the Executive shall continue to serve as a director and/or officer
of the Company (or shall continue at the request of the Company to serve as an
Affiliate Executive) and, thereafter, as long as the Executive shall be subject
to any possible Proceeding by reason of the fact that the Executive was or is a
director and/or officer of the Company (or served in any of said other
capacities), the Company shall, unless no such policies are available in any
market, purchase and maintain in effect for the benefit of the Executive one or
more valid, binding and enforceable policies (the "Insurance Policies") of
directors' and officers' liability insurance ("D&O Insurance") providing
adequate liability coverage for the Executive's acts as a director and/or
officer of the Company or as an Affiliate Executive. The Company shall
promptly notify the Executive of any lapse, amendment or failure to renew said
policy or policies or any provision thereof relating to the extent or nature of
coverage provided thereunder. In the event the Company does not purchase and
maintain in effect said policy or policies of D&O Insurance pursuant to the
provisions of this Section 11(b), the Company shall, to the full extent
permitted by law, in addition to and not in limitation of the other rights
granted the Executive under this Agreement, hold harmless and indemnify the
Executive to the full extent of coverage which would otherwise have been
provided for the benefit of the Executive pursuant to the Insurance Policies.
(c) The Executive shall have the right to receive from
the Company on demand, or at his option to have the Company pay promptly on his
behalf, in advance of a Final Determination of a Proceeding all expenses
payable by the Company pursuant to the terms of this Agreement as corresponding
amounts are expended or incurred by the Executive in
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connection with such Proceeding or otherwise expended or incurred by the
Executive (such amounts so expended or incurred being referred to as "Advanced
Amounts"). In making any claim for payment by the Company of any expenses,
including any Advanced Amount, pursuant to this Agreement, the Executive shall
submit to the Company a written request for payment (a "Claim"), which includes
a schedule setting forth in reasonable detail the dollar amount expended (or
incurred or expected to be expended or incurred). Each item on such schedule
shall be supported by the xxxx, agreement or other documentation relating
thereto, a copy of which shall be appended to the schedule as an exhibit.
Where the Executive is requesting Advanced Amounts, the
Executive must also provide (i) written affirmation of such Executive's good
faith belief that he has met the standard of conduct required by law for
indemnification, and (ii) a written undertaking to repay such Advanced Amounts
if a Final Determination is made that the Executive is not entitled to
indemnification hereunder.
(d) The Company shall not be liable under this Agreement
to make any payment in connection with any claim made against the Executive for
an accounting of profits made from the purchase or sale by the Executive of
securities of the Company within the meaning of Section 16(b) of the Exchange
Act or similar provisions of any state statutory law or common law.
(e) All agreements and obligations of the Company
contained herein shall continue during the period the Executive is a director
and/or officer of the Company (or is serving at the request of the Company as
an Affiliate Executive) and shall continue thereafter so long as the Executive
shall be subject to any possible Proceeding by reason of the fact that the
Executive was a director or officer of the Company or was serving as such an
Affiliate Executive.
(f) Promptly after receipt by the Executive of notice of
the commencement of any Proceeding, the Executive shall, if a claim in respect
thereof is to be made against the Company under this Agreement, notify the
Company of the commencement thereof, but failure to so notify the Company will
not relieve the Company from any liability which it may have to the Executive.
With respect to any such Proceeding:
(i) The Company shall be entitled to
participate therein at its own expense;
(ii) Except with prior written consent of
the Executive, the Company shall not be entitled to assume the defense
of any Proceeding; and
(iii) The Company shall not settle any
Proceeding in any manner which would impose any penalty or limitation
on the Executive without the Executive's prior written consent.
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The Executive shall not settle any Proceeding with respect to
which the Executive has received indemnified amounts or Advanced Amounts
without the Company's prior written consent, nor will the Executive
unreasonably withhold consent to any proposed settlement.
12. Notice.
Any notice required hereunder shall (a) be delivered by hand
or (b) sent by registered or certified mail addressed to the other party hereto
at its address set forth above for Company and on Item 1 of the Schedule for
Executive or at such other address as notice thereof shall have been given in
accordance with the provisions of this Section 12. Any such notice shall
become effective (i) if mailed, on the date indicated on the receipt or if not
accepted, the date indicated that delivery was attempted, and (ii) in the case
of delivery by hand, upon delivery or attempted delivery as shown on the
records of the deliveries.
13. Agreement: Amendment.
This Agreement supersedes any prior agreements or
understandings, oral or written, between the parties hereto and represents
their entire understanding and agreement with respect to the subject matter
hereof. This Agreement can be amended, supplemented or changed, and any
provision hereof can be waived, only by written instrument making specific
reference to this Agreement which is executed by both parties to this
Agreement. Any waiver of any breach of this Agreement shall not be construed
to be a continuing waiver or consent to any subsequent breach by any party
hereto.
14. Severability.
In the event of the invalidity or unenforceability of any one
or more provisions of this Agreement, such illegality or unenforceability shall
not affect the validity or enforceability of the other provisions hereof and
such other provisions shall be deemed to remain in full force and effect.
15. Assignment: Binding Effect.
This Agreement is not assignable by Executive or the Company
without the prior written consent of the other party. This Agreement shall be
binding upon and shall inure to the benefit of the Executive and the Company
and their successors and assigns. It is agreed that in the event of the
termination under this Agreement for any reason, except as expressly provided
in this Agreement, all salary and benefits shall cease as of the date of
termination provided that all accrued salary, bonus and expenses shall be paid
to Executive or Executive's successors, assigns, estate or legal representative
as the case may be.
16. Section Headings.
The Section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
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17. Governing Law; Venue.
This Agreement shall be construed and governed in accordance
with the laws of the State of Texas. The parties hereto agree that any actions
or proceedings instituted to enforce rights hereunder shall be initiated in
Dallas County, Texas.
18. Execution in Counterparts.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all of which together
shall constitute one and the same instruments.
19. Section 280G Protection.
The Company shall make a cash payment to the Executive at the time set
forth below equal to the amount of excise taxes (i.e., the "excise tax gross
payments") which Executive would be required to pay pursuant to Section 4999 of
the Internal Revenue Code of 1986, as amended ("Code"), as a result of any
payments (or any other transfer or deemed transfer of property including any
acceleration of stock options or similar instruments) made by or on behalf of
the Company or any successor thereto resulting in an "excess parachute payment"
within the meaning of Section 280G(b) of the Code. In addition to the
foregoing, the cash payment due to the Executive under this Section 19 shall be
increased by the aggregate of the amount of federal, state and local income and
excise taxes for which the Executive will be liable on account of the cash
payments to be made under this Section 19, such that the Executive will receive
the excise tax gross-up payment net of all income and excise taxes. The
computation of this payment shall be determined, at the expense of the Company,
by an independent accounting, actuarial or consulting firm selected by the
Company. Payment of the cash amount set forth above shall be made at such time
as the Company shall determine, in its sole discretion, but in no event later
than the date five business days before the due date, without regard to any
extension, for filing the Executive's federal income tax return for the
calendar year which includes the date as of which the aforementioned "excess
parachute payments" are determined. In the event that the Executive is
ultimately assessed with excise taxes under Section 4999 of the Code as a
result of payments made by the Company or any successor thereto which exceed
the amount of excise taxes used in computing the Executive's payment under this
Section 19, the Company or its successor shall indemnify the Executive for such
additional excise taxes plus any additional excise taxes, income taxes,
interest and penalties resulting from the additional excise taxes and the
indemnity hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
"Company"
xxxxxxxxx.xxx inc.
By: /s/ XXXX XXXXX
------------------------------
Name: Xxxx Xxxxx
Title: CFO
"Executive"
/s/ XXXX XXXXX
----------------------------------
Name: Xxxx Xxxxx
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SCHEDULE 1
EMPLOYMENT CONTRACT
1. Executive Xxxx Xxxxx
2. Position (i) President
(ii) Chairman of the Board of
Directors
3. Duties Management, operations and
administration as appropriate for
the President and Chairman of the
Board of Directors of the Company as
further described in the Bylaws of
the Company.
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SCHEDULE 4(a)(i)
PART I
BASE SALARY-PRE QUALIFIED PUBLIC OFFERING
Year Base Salary
---- -----------
1998 $150,000
1999 $175,000
1999 $200,000
2001 $200,000
PART II
BASE SALARY-POST QUALIFIED PUBLIC OFFERING
Year Base Salary
---- -----------
1998 $225,000
1999 $250,000
2000 $275,000
2001 $275,000
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SCHEDULE 4(b)
BONUS
Executive shall be paid a bonus in each of the following years during
the term of this Agreement in an amount equal to 1.5% of the Company's
consolidated pre-tax income as determined in accordance with generally accepted
accounting principles by the Company's independent auditors in excess of:
Threshold
Year Pre-tax Income
---- --------------
1998 $1,500,000
1999 $1,750,000
2000 $2,000,000
2001 $2,000,000
In addition, upon completion of a Qualified Public Offering, Executive
shall be paid a one time bonus of $50,000.
