CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SECTIONS 200.83 AND 230.496
EXHIBIT 10.1
September 13, 2001 (as amended September 17, 2001)
Xx. Xxxxxxx X. Xxxxx
[*]
[*]
RE: Resignation of Your Executive Duties; Implementation and Amendment of
the Employment Agreement between Xxxxxx'x, Inc. (the "Company") and
Xxxxxxx X. Spain ("you" or the "Executive") dated May 3, 2001 (the
"Employment Agreement") [Capitalized terms not otherwise defined herein
shall be defined as set forth in the Employment Agreement]
Dear Xxxxxxx:
This Letter Agreement (the "Letter Agreement") will confirm our
understandings with respect to (i) your resignation from executive duties
with the Company by mutual agreement, (ii) our respective rights and
obligations which shall remain in full force and effect as set forth in your
Employment Agreement, subject to the amendment and modifications provided
herein, (iii) the amendment and implementation of the Employment Agreement in
certain respects, and (iv) your continuing service as Chairman of the Board
of Directors of, and as a consultant employed by, the Company. Specifically,
we agree to the following:
1. RESIGNATION OF EXECUTIVE. Subject to the terms and conditions
hereof, as of September 13, 2001, you have resigned your duties as
an executive with the Company. While such resignation is pursuant
to mutual agreement between you and the Company, for purposes of
the Employment Agreement, except as set forth below, you will be
treated as though you had terminated your employment for Good
Reason pursuant to Section 7(d) of the Employment Agreement.
2. CONTINUING RELATIONSHIP. You will continue to serve as Chairman of
the Board of Directors until the first to occur of your termination
of service on the Board, due removal by the Board from such office
or death. You will continue to serve as a member of the Company's
Board of Directors until the first to occur of your resignation,
due removal or death. Your duties as Chairman of the Board shall
be to preside over meetings of the Company's Board of Directors and
stockholders and to perform such additional duties as the Board may
delegate to you from time to time. In addition you will continue
to be employed by the Company as a consultant to provide specific
editorial services for a period beginning on the date of this Letter
Agreement and continuing through October 10, 2002, performing such
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requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SECTIONS 200.83 AND 230.496
consulting and editorial duties as shall be reasonably requested by
the Company from time to time. Such duties may be performed by you
either in Austin, Texas or such other location as you shall
determine, and on such schedule as shall be consistent with your
other business and personal activities (and whether or not such
other activities are in behalf of the Company). Except to the
extent set forth above, you will not have any ongoing employment
duties or responsibilities to the Company.
3. COMPENSATION AND BENEFITS. You will be entitled to receive
compensation and benefits in accordance with Sections 7(h), 9(b)
and 5 of the Employment Agreement, and as set forth on EXHIBIT A
attached hereto. In the event that you die prior to receipt of
full payment or provision of any compensation or benefits due under
this Agreement or the Employment Agreement, the unpaid or unprovided
installments shall be paid to your wife, if living, and otherwise
to the executor or administrator of your estate. You understand
and agree that the Company will withhold federal, state and local
income taxes, if any, from the installment payments due hereunder,
as applicable, as well as any other amounts required by law.
4. STOCK OPTIONS. You have been eligible to participate in the
Company's stock option plans. The Company has granted you stock
options as detailed on EXHIBIT A to the Employment Agreement,
restated as EXHIBIT B hereto (collectively, the "Options"),
together with a grant of 50,000 options as of May 22, 2001, vesting
quarterly over four years, at an exercise price of $3.40 per share
(the "May 2001 Grant"). The terms and conditions of your Options
shall be as set forth in the respective stock option agreements
between you and the Company, as they may have been amended by the
Employment Agreement and this Letter Agreement. In consideration
of the compensation and benefits provided under this Letter
Agreement, you release all rights in the May 2001 Grant, and the
options granted thereby will be cancelled. The parties acknowledge
and agree that Executive's Option to acquire 100,000 shares granted
on December 21, 2000, vesting over a period of three (3) years at
an exercise price of $1.5625 per share, will be amended to provide
that any unvested portion of such option will fully vest as of the
date of this Letter Agreement. The parties acknowledge and agree
that Executive's Options to acquire 82,500 shares granted on May 9,
1997 at an exercise price of $3.67 per share and to acquire 75,000
shares granted on June 24, 1998 at an exercise price of $4.33 per
share, each of which are fully vested, are hereby amended to
provide that Executive will have a period equal to the lesser of
two years or the balance of time remaining prior to the expiration
of such Option in which to exercise such Option following the
termination of Executive's service as a member of the Company's
Board of Directors. The parties acknowledge and agree that
Executive's Options to acquire 9,750 shares granted to Executive on
October 28, 1992, 75,000 shares granted on February 3, 1993,
105,000 shares granted on June 27, 1995 (all at an
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[*] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SECTIONS 200.83 AND 230.496
exercise price of $1.00 per share) and Executive's Option to
acquire 40,950 shares granted on June 3, 1996 at an exercise price
of $2.00 per share (collectively, the "1992-1996 Options") each of
which are fully vested, are hereby amended to provide that
Executive will have a period equal to the lesser of two years
following the termination of Executive's service as a member of the
Company's Board of Directors, or the balance of time remaining
prior to the expiration of such Option in which to exercise such
Option. The Company acknowledges and agrees that all other options
are fully vested as of the date hereof, with the exception of the
May 2001 Grant that is being cancelled hereby. You will have the
right to exercise the Options as provided in the stock option
agreements and Exhibit B to this Letter Agreement. In the event of
any inconsistency between this Letter Agreement, the Employment
Agreement and the stock option agreement relating to any Option,
this Letter Agreement shall control and such stock option
agreements and the Employment Agreement are deemed amended. The
Company will execute amendments to the stock options agreements
representing Options that have been amended consistent with the
terms as set forth herein, such amendments to be executed prior to
September 28, 2001.
5. CONFIDENTIALITY AND PROPRIETARY INFORMATION. You acknowledge that
your obligations under Section 6 of the Employment Agreement shall
survive this Letter Agreement and the termination of your
employment by the Company. Such terms are incorporated herein by
reference and shall apply hereto as if fully rewritten herein.
6. NONCOMPETITION PROVISIONS. You acknowledge that Section 8 of the
Employment Agreement shall survive this Agreement. Section 8 of
the Employment Agreement is amended to provide that the
"Non-Compete Period" shall expire October 10, 2002. Such terms are
incorporated herein by reference and shall apply hereto as if fully
rewritten herein.
7. PUBLIC ANNOUNCEMENTS. You and the Company agree to the
distribution of a press release, as set forth in EXHIBIT C attached
hereto. Should it be deemed necessary by the Company to disclose
any information relating to this Letter Agreement pursuant to any
government regulations, the Company agrees that you will be
afforded the opportunity to review and comment upon any proposed
disclosure referring to you or this Letter Agreement as soon as
practicable prior to the date of such proposed disclosure. Except
as provided above, no press releases, of any nature relating to
your employment with the Company, shall be made by either party
hereto without approval of the other party.
8. INDEMNIFICATION. The Company confirms and agrees that, subject to
the terms therein set forth, you will be entitled to the continuing
benefits of indemnification by the Company for actions taken as a
Director and
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requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SECTIONS 200.83 AND 230.496
officer of the Company, as provided by Article 11.7 of the Company's
Amended and Restated Bylaws, and the limitation on your liability for
such actions as set forth in Article III, Section 14 of the Company's
Amended and Restated Certificate of Incorporation.
9. COMPANY RELEASE. In exchange for your undertakings in this Letter
Agreement, the Company on its own behalf, and on behalf of its
subsidiaries, affiliates, predecessors, successors and assigns, and
their respective shareholders, directors, officers, agents,
attorneys, employees, releases and forever discharges you, your
heirs, executors, dependents, beneficiaries, estate, successors and
assigns (collectively, "Executive's Releasees") of and from any and
all claims, demands, actions or causes of action, damages or suits
at law or equity, of whatsoever kind or nature, including, but not
limited to, all claims and/or demands relating to or arising out of
the Employment Agreement and/or your employment by the Company;
provided, however, that such release and discharge shall not apply
to, release or discharge, any of your obligations under this Letter
Agreement or your obligations under the Employment Agreement, as
amended by this Letter Agreement, to the extent your obligations
under the Employment Agreement are required to be performed or
observed after the date of this Letter Agreement.
10. EXECUTIVE RELEASE. In exchange for the undertakings of the Company
set forth in this Letter Agreement, you, for yourself and your
heirs, executors, dependents, beneficiaries, estate, successors,
and assigns, release and forever discharge the Company, its
subsidiaries, divisions, and affiliated businesses, if any,
together with its and their respective officers, directors,
shareholders, agents, employees, representatives, and attorneys
(collectively, "the Company Releasees") of and from any and all
claims, demands, actions or causes of action, damages or suits at
law or equity, of whatsoever kind or nature, including, but not
limited to, all claims and/or demands (i) relating to or arising
out of the Employment Agreement, your employment by the Company,
and/or the termination thereof; (ii) claims for compensation in the
nature of wages, salary, bonuses, commissions, director fees,
travel and car allowances, fringe benefits, vacation pay, severance
pay, back pay, business expense or rehire arising or accrued
through the date of this Letter Agreement (iii) claims and causes
of actions for age discrimination, claims under any federal, state
or local law, statute or regulation dealing with employment, breach
of contract, promissory estoppel, and demands for attorney's fees
and legal expenses, that you have or may have by reason of any
matter or thing arising out of, or any way connected with, directly
or indirectly, any act and/or omission that has occurred prior to
the date of this Letter Agreement; provided, however, that such
release and discharge shall not apply to, release or discharge (i)
any of the Company's obligations under this Letter Agreement, (ii)
any of the Company's obligations to indemnify, defend or
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[*] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SECTIONS 200.83 AND 230.496
hold you harmless to the extent such obligations exist under the
Company's Certificate of Incorporation, Bylaws, any other agreement
or as a matter of law, or (iii) any of the Company's obligations
under the Employment Agreement, as amended by this Letter
Agreement, to the extent the Company's obligations under the
Employment Agreement are required to be performed or observed after
the date of the Letter Agreement; and (iv) any of the Options
(and/or any agreements relating to the Options), as each of the
same may have been amended, to the extent the Company's obligations
under the Options (or related agreements) are required to be
performed and observed after the date of this Letter Agreement.
11. ADEA. You recognize and agree that, by executing this Letter
Agreement, you are releasing the Company Releasees from any and all
claims that you now have, or may have, under the federal Age
Discrimination in Employment Act of 1967, 29 U.S.C. 621, et seq. as
amended ("ADEA"), by reason of any matter or thing arising out of,
or in any way connected with, directly or indirectly, any acts or
omissions which have occurred prior to and including the date of
this Letter Agreement.
12. "CONSIDERATION PERIOD." The Company hereby notifies Executive of
his right to consult with his chosen legal counsel before signing
this Letter Agreement. The Company shall afford not less than
twenty-one (21) calendar days in which to consider this Letter
Agreement to insure that his execution of this Letter Agreement is
knowing and voluntary.
13. "REVOCATION PERIOD"; ADEA. Both you and the Company agree and
recognize that, for a period of twenty-eight (28) calendar days
following your execution of this Letter Agreement, you may revoke
this Letter Agreement as to your release of ADEA claims by
providing written notice revoking the same, within the twenty-eight
(28) day period, to General Counsel, Xxxxxx'x, Inc., 0000 Xxxxxxx
Xxxxxxxxx, Xxxxxx, Xxxxx 00000.
14. MUTUAL NONDISCLOSURE OF LETTER AGREEMENT. You and your heirs,
executors, successors, assigns, representatives, and attorneys and
the Company, its subsidiaries, affiliates, predecessors, successors
and assigns, and their respective shareholders, directors,
officers, agents, attorneys, employees shall hold the terms of this
Letter Agreement in strict confidence and shall not communicate,
reveal, or disclose the terms of this Letter Agreement to any other
persons except as required by law or regulation and to your
immediate family, legal counsel, tax consultants, prospective
lenders, and others with whom you do business and who may require
such information, and to those employees, directors, officers,
agents and attorneys of the Company who have reason to be aware of
the terms hereof for the purposes of executing certain of the
agreements
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[*] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SECTIONS 200.83 AND 230.496
contained herein, all of whom shall be instructed by you and/or the
Company similarly to hold the terms of this Letter Agreement in the
strictest confidence, and as otherwise required by law.
15. INVALIDITY. The parties to this Letter Agreement agree that the
invalidity or unenforceability of any one (1) provision or part of
this Letter Agreement shall not render any other provision(s) or
part(s) hereof invalid or unenforceable and that such other
provision(s) or part(s) shall remain in full force and effect.
16. COSTS AND ATTORNEY FEES. Each party shall be responsible for his
or its separate costs, expenses, attorneys' fees or otherwise.
17. APPLICABLE PROVISIONS OF EMPLOYMENT AGREEMENT; MODIFICATION. The
parties acknowledge that the terms of Sections 10
(Nontransferability), 11 (Waiver), 12 (Notice), 13 (Governing Law;
Forum for Disputes; Expenses), 15 (Modification), 16 (Binding
Effect), and 17 (Legal Consultation) of the Employment Agreement
shall apply hereto as if fully rewritten herein. The parties
further acknowledge that, except as may be specifically waived or
modified in this Letter Agreement, the Employment Agreement shall
remain in full force and effect in accordance with its terms.
18. ENTIRE AGREEMENT. This Letter Agreement, together with the
Employment Agreement as modified, implemented and continued by this
Letter Agreement, contain the entire agreement between the parties
hereto, and there are no understandings between the parties other
than those specifically and expressly set forth therein. Neither
this Letter Agreement nor the Employment Agreement shall be further
amended or modified in any manner except upon written agreement by
both parties.
Very truly yours,
Xxxxxx'x, Inc.
By: ______/s/___________
Xxxx Xxx,
Vice President and
General Counsel
Acknowledged and Accepted:
EXECUTIVE
_________/s/_________
Xxxxxxx X. Spain
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[*] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SECTIONS 200.83 AND 230.496
EXHIBIT A
COMPENSATION AND BENEFITS
1. PAYMENTS. Promptly following execution of this Letter Agreement,
Executive will be paid all salary accrued under the Employment Agreement
through the date of this Letter Agreement. The parties agree that, in full
satisfaction of its obligations under Section 7(h)(i) and Section 5 of the
Employment Agreement, the Company will pay to Executive the sum of $325,000 in
the following installments twice per month over the thirteen (13) month period
beginning September 11, 2001 and ending October 10, 2002: $11,500
attributable to the severance obligation in Section 7(h)(i); and (ii) $1,000
attributable to Executive's employment as a consultant to the Company, as
described in Section 2 above.
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2. OPTIONS LOANS. In consideration of the extension of the period in which
Executive is provided to exercise the 1992-1996 Options as provided in Section
4, Executive will hereby forfeit any and all rights to receive loans to
exercise the 1992-1996 Options provided pursuant to Section 9(b)b of the
Employment Agreement, effective as of the execution of the Letter Agreement.
--------------------------------------------------------------------------------
3. BENEFITS. Promptly following execution of this Letter Agreement, the
Company will pay Executive for any currently unreimbursed expenses and accrued
vacation, and will continue medical, dental, disability and life insurance
coverage through October 10, 2002 (or pay the costs of continuing coverage
under COBRA if Executive becomes ineligible to participate during this
period), unless Executive receives these benefits from a subsequent employer
in the interim, all in accordance with the Employment Agreement.
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[*] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SECTIONS 200.83 AND 230.496
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8. [*]
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[*] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SECTIONS 200.83 AND 230.496
EXHIBIT B
OPTION HOLDINGS
----------------------------------------------------------------------------------
Grant Date Number Exercise Price Percent Time to
Vested as of Exercise
9/11/01
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10/28/92 9,750 $1.00 100% (1)
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02/03/93 75,000 $1.00 100% (1)
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06/27/95 105,000 $1.00 100% (1)
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06/03/96 40,950 $2.00 100% (1)
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05/09/97 82,500 $3.67 100% (2)
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06/24/98 75,000 $4.33 100% (2)
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06/08/99 112,500 $14.00 100% (3)
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06/05/00 100,000 $7.4375 100% (3)
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12/21/00 100,000 $1.5625 25%* (4)
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5/22/01** 50,000 $3.40 6.25%
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ALL OPTIONS EXPIRE TEN (10) YEARS FROM THE DATE OF GRANT.
(1) Following amendment as provided in Section 4 set forth herein, Options
must be exercised within the lesser of two (2) years following
Executive's ceasing to serve as a member of the Company's Board of
Directors; or the expiration of such Option(s).
(2) Following amendment as provided in Section 4 set forth herein, Options
must be exercised within two years of Executive's ceasing to serve as
a member of the Company's Board of Directors.
(3) Options must be exercised within two (2) years of Executive's ceasing
to serve as a member of the Company's Board of Directors.
(4) Options must be exercised within ninety (90) days of Executive's
ceasing to serve as a member of the Company's Board of Directors.
* Options will be accelerated to vest 100% upon execution of this letter
agreement, as set forth in Section 4.
**Options being cancelled pursuant to this letter agreement.
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[*] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SECTIONS 200.83 AND 230.496
EXHIBIT C
PUBLIC COMMUNICATIONS
XXXXXX'X ANNOUNCES RESULTS OF 2001 ANNUAL SHAREHOLDERS' MEETING
AOL TIME WARNER'S BUSINESS 2.0 PRESIDENT XXX XXXXXXX ELECTED TO XXXXXX'X
BOARD OF DIRECTORS
FOR IMMEDIATE RELEASE
AUSTIN, TEXAS - September 14, 2001 - Xxxxxx'x, Inc. (Nasdaq: HOOV), a leading
provider of online business information, tools, and content integration
technology, today announced results of its annual shareholders meeting, held
on September 11. Xxxxxx X. (Xxx) Xxxxxxx was elected by Xxxxxx'x shareholders
to serve as a new member of the board of directors, and Xxxxxx X. Xxxxxxx and
Xxxxxxx X. Xxxx were re-elected as board members, each within Class I of the
company's board of directors. In addition, Xxxxxxx X. Xxxxx has been
re-elected by the board as its chairman. Mr. Spain has served as chairman of
the board since 1994. Mr. Spain also announced that he is resigning from his
operational role as full time executive chairman effective as of October 10,
2001, but will continue to serve as Xxxxxx'x chairman of the board in a
non-executive capacity. Spain will also continue to be available to consult
with the company on an as-needed basis.
Xx. Xxxxxxx is the president and editor of BUSINESS 2.0, an AOL Time Warner
magazine that covers the digital economy. AOL Time Warner (NYSE:AOL) is
Xxxxxx'x largest shareholder. Xxxxxxx was previously employed by Infoseek
Corporation as a senior executive and an editor. Additionally, Xx. Xxxxxxx
was a senior writer and contributing editor for FORTUNE magazine, after
spending 12 years as a journalist for TIME magazine, including positions as
bureau chief in New Delhi and Tokyo.
"Xxx brings with him vast knowledge and expertise and I would like to
personally welcome him to the team," said Xxxxxxx Xxxxx. "His leadership
roles at various business publications and distinguished career as a
journalist will bring us a unique perspective combining both management of a
media enterprise and editorial expertise."
"I am honored to have been elected to the Xxxxxx'x board of directors and am
proud to be a part of a company with such a well-established brand name and
strong reputation," stated Xxxxxxx.
Xxxx, who has served as chief executive officer and president of Xxxxxx'x
since May 2001 and has been a director since June 2001, said, "I appreciate
the shareholders confirming the board's vote of confidence in me and am
excited to lead as both CEO and
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requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SECTIONS 200.83 AND 230.496
as a board member. Xxxxxx'x has a wealth of talent across the organization
and I look forward to continuing to build Xxxxxx'x into a premier business
information provider."
Xxxxxxx is an entrepreneur across a broad range of industries and is a
principal of Xxxxxxx Consulting, which provides management consulting services
with an emphasis on strategic planning, organizational development, and
corporate finance. He joined the Xxxxxx'x board in 1992. "I look forward to
continuing to contribute to the success of Xxxxxx'x," said Xxxxxxx.
Spain, a co-founder of the company, served as CEO for more than eight years
until May 2001, and has served as chairman of the board since 1994. During
Spain's tenure as CEO, the company transformed itself from a small reference
book publisher to a premier online business information company reaching
millions of businesspeople worldwide. Spain led the company's initial public
offering in July 1999 and helped deliver EBITDA profitability during the
quarter ended June 30, 2001, his last quarter as CEO.
"It's been a pleasure and an honor to have served as the leader of our fine
company," said Spain. "My thanks goes out to the shareholders, directors, and
employees of the company without whom we would not have been able to create
this unique and wonderful organization. I look forward to continuing to serve
as chairman of the board."
About Xxxxxx'x, Inc.
Xxxxxx'x, Inc. (Nasdaq: HOOV) provides online business information, tools to
help businesspeople get their jobs done. Xxxxxx'x information is available
through its destination sites Xxxxxx'x Online (XXXX://XXX.XXXXXXX.XXX) and the
company's other sites in France, Germany, Italy, Spain and the U.K., through
syndication and co-branding agreements with other online services, and through
customized applications developed for enterprise information portals,
corporate intranets and business-to-business vertical and content sites.
Xxxxxx'x investors include AOL Time Warner (NYSE: AOL), Media General (AMEX:
MEG.A), and Knowledge Universe, through its Knowledge Net Holdings and Nextera
Enterprises (Nasdaq: NXRA) units. Xxxxxx'x is headquartered in Austin, Texas,
and has offices in London, New York City and San Francisco.
"Safe Harbor" Statement under the Private Securities Litigation Reform Act of
1995: This press release may contain forward-looking statements relating to
future events or results that involve risks and uncertainties, including
statements regarding the expected benefits of executive changes. Among the
important factors which could cause actual results of Xxxxxx'x to differ
materially from those in the forward-looking statements is the successful
growth of Xxxxxx'x to be the premier online business resource, effectiveness
of new leadership and management, economic conditions specific to the
Internet, as well as general economic and market conditions and other factors
detailed in Xxxxxx'x reports and documents filed from time to time with the
Securities and Exchange Commission, including its prospectus and recent 10-K
and 10-Q filings.
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requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
