EXHIBIT 10.10
EMPLOYMENT AGREEMENT
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This Employment Agreement (the "Agreement") is effective as of October
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6, 1999 by and between Xxxxxx Xxxxxxxxx ("Xxxxxxxxx") and Aeneid Corporation, a
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California corporation (the "Company").
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RECITALS
The Company and Xxxxxxxxx are parties to an Employment Agreement dated
March 1, 1997 (the "Prior Agreement"). The Company and Xxxxxxxxx wish to
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terminate the Prior Agreement in its entirety and replace it with the rights and
obligations under this Agreement.
Xxxxxxxxx is presently employed full time as the President and Chief
Executive Officer of the Company and serves as a director and Chairman of the
Board of Directors of the Company.
AGREEMENT
The parties hereby agree as follows:
1. Duties.
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(a) Position. Until such time as the Company hires a new
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President or Chief Executive Officer, Xxxxxxxxx shall be employed as the
Company's President, Chief Executive Officer and Chairman of the Board of
Directors and will report to the Company's Board of Directors. In the event that
the Company hires a new President or Chief Executive Officer and Xxxxxxxxx does
not elect to treat such hiring as a Constructive Termination of his employment
pursuant to Section 5(a), so long as he is a director of the Company and
continues to be re-elected as Chairman of the Board of Directors pursuant to the
Company's Bylaws, Xxxxxxxxx will, subject to removal by the Board of Directors,
remain a full time employee of the Company and Chairman of the Board of
Directors ("Full Time Chairman").
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(b) Obligations to the Company. Xxxxxxxxx agrees to the best
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of his perform all of the duties and obligations required of and from Xxxxxxxxx
pursuant to the terms hereof. During the term of Xxxxxxxxx'x employment
relationship with the Company as President, Chief Executive Officer or Full Time
Chairman, Xxxxxxxxx further agrees that he will devote all of his business time
and attention to the business of the Company, the Company will be entitled to
all of the benefits and profits arising from or incident to all such work
services and advice, Xxxxxxxxx will not render commercial or professional
services of any nature to any person or organization, whether or not for
compensation, without the prior written consent of the Company's Board of
Directors, and Xxxxxxxxx will not directly or indirectly engage or participate
in any business that is competitive in any manner with the business of the
Company. Notwithstanding the foregoing, Xxxxxxxxx may accept speaking or
presentation engagements in exchange for honoraria, may serve on boards of
charitable organizations, and may own 1% of the outstanding equity securities of
a
corporation whose stock is listed on a national stock exchange or the Nasdaq
National Market. Xxxxxxxxx will comply with and be bound by the Company's
operating policies, procedures and practices from time to time in effect during
the term of Xxxxxxxxx'x employment.
2. At-Will Employment. The Company and Xxxxxxxxx acknowledge that
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Xxxxxxxxx'x employment shall be at-will, as defined under applicable law, and
that Xxxxxxxxx'x employment with the Company may be terminated by either party
at any time for any or no reason. If Xxxxxxxxx'x employment terminates for any
reason, Xxxxxxxxx shall not be entitled to any payments, benefits, damages,
award or compensation other than as provided in this Agreement. The rights and
duties created by this Section 2 may not be modified in any way except by a
written agreement executed by Xxxxxxxxx and a duly authorized officer of the
Company.
3. Compensation. For the duties and services to be performed by
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Xxxxxxxxx hereunder, so long as Xxxxxxxxx is President and Chief Executive
Officer or Full Time Chairman, the Company shall pay Xxxxxxxxx, and Xxxxxxxxx
agrees to accept, the salary and other benefits described below in this Section
3.
(a) Salary. Xxxxxxxxx shall receive a monthly salary of
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$14,583.33, which is equivalent to $175,000 on an annualized basis. Xxxxxxxxx'x
monthly salary will be payable pursuant to the Company's normal payroll
practices. Xxxxxxxxx'x salary shall be reviewed on at least an annual basis by
the Company's Board of Directors.
(b) Bonus. Xxxxxxxxx shall be eligible to receive an annual cash
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bonus of up to twenty percent (20%) of Xxxxxxxxx'x base salary. The payment and
amount of such bonus are discretionary and shall be determined by the Board of
Directors or its Compensation Committee in good faith based upon the extent to
which Xxxxxxxxx'x individual performance objectives and the Company's financial
and nonfinancial objectives are achieved during the applicable bonus period.
(c) Additional Benefits. Xxxxxxxxx will be eligible to
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participate in the Company's employee benefit plans of general application,
including without limitation, those plans covering medical, disability and life
insurance in accordance with the rules established for individual participation
in any such plan and under applicable law. Xxxxxxxxx will also receive such
other benefits as the Company generally provides to its other executive officers
of comparable position and experience.
(d) Reimbursement of Expenses. Xxxxxxxxx shall be authorized to
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incur on behalf and for the benefit of, and shall be reimbursed by, the Company
for reasonable expenses, provided that such expenses are substantiated in
accordance with Company policies.
(e) Vacation. Xxxxxxxxx shall accrue paid vacation days on a
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pro rata basis at the rate of twenty-one (21) days per year. Unused, accrued
vacation days may be carried over from subsequent years, provided that Xxxxxxxxx
shall not accrue any additional vacation days at any time when the number of his
unused, accrued vacation days equals twenty-one (21).
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4. Termination of Employment Prior to Hiring of a New President or Chief
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Executive Officer.
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The following terms and provisions shall apply to termination of
Xxxxxxxxx'x employment with the Company prior to the hiring by the Company of a
new President or Chief Executive Officer.
(a) Termination Events. Xxxxxxxxx'x employment with the Company
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prior to the hiring by the Company of a new President or Chief Executive Officer
may be terminated at any time upon the occurrence of any of the following
events:
(i) The Company's determination in good faith that it is
terminating Xxxxxxxxx for Cause (as defined in Section 5 below) ("Termination
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for Cause").
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(ii) The Company's determination that it is terminating
Xxxxxxxxx without Cause, which determination may be made by the Company at any
time at the Company's sole discretion, for any or no reason ("Termination
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Without Cause").
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(iii) The effective date of a written notice sent to the Company
from Xxxxxxxxx (or an equivalent oral notification) stating that Xxxxxxxxx is
electing to terminate his employment with the Company ("Voluntary Termination").
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(iv) (A)(1) A material change in Xxxxxxxxx'x duties and
responsibilities, causing Xxxxxxxxx'x position to be of materially reduced
stature or responsibility, (2) a reduction of more than 20% of Xxxxxxxxx'x base
compensation unless in connection with similar decreases of other similarly
situated employees of the Company, or (3) Xxxxxxxxx refuses to relocate to a
facility or location more than 50 miles from the Company's current location; and
(B) within the 30-day period immediately following such material change or
reduction Xxxxxxxxx elects to terminate his employment voluntarily
("Constructive Termination"). The hiring by the Company of a new President or
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Chief Executive Officer shall constitute a Constructive Termination if Xxxxxxxxx
elects to treat it as such, in which event the provisions of Section 5(a) shall
apply.
(v) Following Xxxxxxxxx'x death or Disability (as defined in
Section 6 below).
(b) Post-Te rmination Compensation. Xxxxxxxxx shall be entitled to
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receive only the payments and benefits stated in this Section 4(b) upon
termination of his employment prior to the hiring by the Company of a new
President or Chief Executive Officer:
(i) Voluntary Termination. If Xxxxxxxxx'x employment
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terminates by Voluntary Termination prior to hiring by the Company of a new
President or Chief Executive Officer, then Xxxxxxxxx will receive payment(s) for
all salary and the value of any accrued, unused vacation time as of the date of
such termination.
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(ii) Termination Without Cause; Constructive Termination. If
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Xxxxxxxxx'x employment is terminated under Section 4(a)(ii) or 4(a)(iv) above
prior to the hiring by the Company of a new President or Chief Executive Officer
(such termination, a "Triggering Termination"), Xxxxxxxxx shall (in lieu of any
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and all severance benefits under any plan or agreement (including this
Agreement) to which Xxxxxxxxx would otherwise be entitled) be entitled to
receive 120% of his salary in effect at the time of such Triggering Termination
(the "Severance Payments"), paid over the twelve (12) month period beginning on
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the effective date of such Triggering Termination. The Severance Payments shall
be made in accordance with the Company's standard payroll schedule and policies.
(iii) Termination for Cause. If Xxxxxxxxx'x employment is
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terminated for Cause prior to the hiring by the Company of a new President or
Chief Executive Officer, then Xxxxxxxxx will receive payment(s) for all salary
and the value of any accrued, unused vacation time as of the date of such
termination.
(iv) Termination by Reason of Death or Disability. In the
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event that Xxxxxxxxx'x employment with the Company terminates as a result of
Xxxxxxxxx'x death or Disability (as defined in Section 7 below) prior to the
hiring by the Company of a new President or Chief Executive Officer, Xxxxxxxxx
or Xxxxxxxxx'x estate or representative will receive all salary and unpaid
vacation accrued as of the date of Xxxxxxxxx'x death or Disability and any other
benefits payable under the Company's then existing benefit plans and policies in
accordance with such plans and policies in effect on the date of death or
Disability and in accordance with applicable law.
5. Termination of Employment After Hiring of a New President or Chief
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Executive Officer.
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(a) Election to Treat Hiring of New President or Chief Executive
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Officer as Constructive Termination.
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Xxxxxxxxx may, at any time after such hiring, by providing notice to
the Company, elect to treat the hiring by the Company of a new President or
Chief Executive Officer as a Constructive Termination of his employment, in
which case, (i) Xxxxxxxxx'x employment as Full Time Chairman shall terminate,
(ii) Xxxxxxxxx shall not be entitled to compensation pursuant to Section 3 and
(iii) the provisions of Section 5(c)(ii) and Section 8 shall apply.
(b) Election Not to Treat Hiring of New President or Chief Executive
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Officer as Constructive Termination.
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In the event that the Company hires a new President or Chief Executive
Officer and Xxxxxxxxx does not elect to treat such hiring as a Constructive
Termination of his employment pursuant to Section 5(a), so long as he is a
director of the Company and continues to be re-elected as Chairman of the Board
of Directors pursuant to the Company's Bylaws, Xxxxxxxxx will, subject to
removal by the Board of Directors, remain the Full Time Chairman. Xxxxxxxxx'x
employment with the Company as Full Time Chairman may be terminated at any time
upon the occurrence of any of the following events:
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(i) Termination for Cause (as defined in Section 6 below).
(ii) Termination Without Cause (as defined in Section 4(a)(ii)).
(iii) The effective date of a written notice sent to the Company
from Xxxxxxxxx (or an equivalent oral notification) stating that Xxxxxxxxx is
electing Voluntary Termination (as defined in Section 4(a)(iii)).
(iv) Constructive Termination (as defined in Section 4(a)(iv)).
(v) Following Xxxxxxxxx'x death or Disability (as defined in
Section 7 below).
(c) Post-Termination Compensation. Except as stated in Section 8(c)
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below, Xxxxxxxxx shall be entitled to receive only the payments and benefits
stated in this Section 5(c) upon termination of his employment as Full Time
Chairman after the hiring by the Company of a new Chief Executive Officer:
(i) Voluntary Termination. If Xxxxxxxxx'x employment as Full
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Time Chairman after the hiring by the Company of a new Chief Executive Officer
terminates by Voluntary Termination, then Xxxxxxxxx will receive payment(s) for
all salary and the value of any accrued, unused vacation time as of the date of
such termination.
(ii) Termination Without Cause; Constructive Termination. In
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the event of a Termination Without Cause or Constructive Termination of
Xxxxxxxxx'x employment as Full Time Chairman after the hiring by the Company of
a new President or Chief Executive Officer, Xxxxxxxxx shall (in lieu of any and
all severance benefits under any plan or agreement (including this Agreement) to
which Xxxxxxxxx would otherwise be entitled) be entitled to receive 120% of his
salary in effect at the time of such termination, paid over the twelve (12)
month period beginning on the effective date of such termination. Such payments
shall be made in accordance with the Company's standard payroll schedule and
policies.
(iii) Termination for Cause. If Xxxxxxxxx'x employment as Full
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Time Chairman after the hiring by the Company of a new Chief Executive Officer
is terminated for Cause, then Xxxxxxxxx will receive payment(s) for all salary
and the value of any accrued, unused vacation time as of the date of such
termination.
(iv) Termination by Reason of Death or Disability. In the
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event that Xxxxxxxxx'x employment with the Company as Full Time Chairman after
the hiring by the Company of a new Chief Executive Officer terminates as a
result of Xxxxxxxxx'x death or Disability (as defined in Section 6 below),
Xxxxxxxxx or Xxxxxxxxx'x estate or representative will receive all salary and
unpaid vacation accrued as of the date of Xxxxxxxxx'x death or Disability and
any other benefits payable under the Company's then existing benefit plans and
policies in accordance with such plans and policies in effect on the date of
death or Disability and in accordance with applicable law.
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6. Definition of Cause. For purposes of this Agreement, "Cause" for
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Xxxxxxxxx'x termination will exist at any time after the happening of one or
more of the following events:
(a) Xxxxxxxxx'x willful misconduct or gross negligence in performance
of his duties hereunder, including Xxxxxxxxx'x refusal to comply in any material
respect with the legal directives of the Company's Board of Directors so long as
such directives are not inconsistent with the Xxxxxxxxx'x position and duties,
and such refusal to comply is not remedied within 10 working days after written
notice from the Board of Directors, which written notice shall state that
failure to remedy such conduct may result in Termination for Cause;
(b) Xxxxxxxxx'x conviction of the commission of (i) a felony or (ii)
any crime or offense involving moral turpitude; or
(c) Xxxxxxxxx'x breach of any element of this Agreement or the
Company's Proprietary Information Agreement, which breach is not cured within
thirty (30) days following written notice of such breach from the Company.
7. Definition of Disability. For purposes of this Agreement,
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"Disability" shall mean that Xxxxxxxxx has been unable to perform his duties
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hereunder as the result of his incapacity due to physical or mental illness, and
such inability, which continues for at least 120 consecutive calendar days or
150 calendar days during any consecutive twelve-month period, if shorter, after
its commencement, is determined to be total and permanent by a physician
selected by the Company and its insurers and acceptable to Xxxxxxxxx or to
Xxxxxxxxx'x legal representative (with such agreement on acceptability not to be
unreasonably withheld).
8. Consulting Services. In the event that the Company hires a new
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President or Chief Executive Officer and Xxxxxxxxx chooses to treat such hiring
as a Constructive Termination pursuant to Section 5(a), effective as of the date
that Xxxxxxxxx provides notice to the Company of such election, Xxxxxxxxx shall
no longer be Full Time Chairman. Under such circumstances, unless there has
been a prior Termination for Cause of Xxxxxxxxx'x employment, the Company shall
engage Xxxxxxxxx, and Xxxxxxxxx shall serve, as an independent consultant on the
terms and conditions set forth herein. During the Consultation Period (as
defined below), if he is still a director of the Company and Xxxxxxxxx and the
Company's Board of Directors mutually agree, Xxxxxxxxx may remain Chairman of
the Board of Directors and shall exercise and perform all of the duties of
Chairman of the Board of Directors required by the Company's Bylaws and the
Board of Directors but shall not be a full time employee of the Company.
(a) Consultation Period. The term of the consulting arrangement
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hereunder (the "Consultation Period") shall be twelve (12) months, commencing on
the first business day following the date that Xxxxxxxxx provides notice to the
Company of his election to treat the hiring of a new President or Chief
Executive Officer as a Constructive Termination, and shall automatically be
extended from month-to-month until terminated by either party in writing.
(b) Duties. During the Consultation Period, Xxxxxxxxx will report
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to the Company's Board of Directors and will make himself available to provide
consulting services ("Consulting Services") to the Company, as requested by the
Company; provided, however, that
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Xxxxxxxxx shall not be required to provide more than eight hours of Consulting
Services to the Company per week. The Consulting Services shall be in addition
to Xxxxxxxxx'x obligation to attend meetings of the Company's Board of Directors
and otherwise fulfill his duty as a director of the Company. The Consulting
Services shall include making available to the Board of Directors such facts,
information, recommendations, advice and consultation as may be requested from
time-to-time by the Board of Directors and, if requested by the Board of
Directors, participating in investor solicitation activities, including "road
shows" and industry trade shows. Any such participation in investor solicitation
activities and industry trade shows shall be at the expense of the Company. The
Company agrees to provide 48 hours notice to Xxxxxxxxx prior to requiring
Xxxxxxxxx to perform Consulting Services.
(c) Compensation. In exchange for Xxxxxxxxx making himself available
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to provide the Consulting Services to the Company, the Company shall pay
Xxxxxxxxx (i) $4,000 each month (the "Base Amount") and (ii) $150 per hour (the
"Additional Amounts") for each additional hour of Consulting Services performed
by Xxxxxxxxx. Xxxxxxxxx shall be solely responsible for the withholding and/or
payment of any federal, state or local income or payroll taxes with respect to
the Base Amount and any Additional Amounts paid to him hereunder and shall
indemnify and hold the Company harmless from all liability related to the tax
treatment of the Base Amount and any Additional Amounts. Notwithstanding the
foregoing, time spent by Xxxxxxxxx attending meetings of the Company's Board of
Directors or otherwise fulfilling his duty as a director of the Company shall
not be counted toward the hours referenced in (i) or (ii) of the first sentence
of this Section 8(c) and Xxxxxxxxx shall not be compensated by the Company for
any such time. Other than payments owed for time worked pursuant to (i) or (ii)
above, and except as provided in Section 5(c)(ii) in the event of a Termination
Without Cause or Constructive Termination of Xxxxxxxxx'x employment as Full Time
Chairman after the hiring by the Company of a new President or Chief Executive
Officer, Xxxxxxxxx shall not be entitled to any benefits, damages, awards,
compensation or severance benefits upon termination of Xxxxxxxxx'x consulting
arrangement. During the Consultation Period, Xxxxxxxxx will not receive
benefits under the Company's benefit plans. During the Consultation Period,
Xxxxxxxxx will be entitled to the Base Amount in a particular month only if he
actually provides the number of hours of Consulting Services requested by the
Company during such month, not to exceed eight hours per week.
(d) Status. It is the intent of the parties that, during the
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Consultation Period, Xxxxxxxxx shall be an independent contractor reporting to
the Board of Directors of the Company and shall not be subject to any control or
direction of the Company in the manner in which his consulting services are
performed, the Company being interested only in the end product of such efforts
as Xxxxxxxxx may expend, namely, the making available of such facts,
information, recommendations advice and consultation and the participation in
such investor solicitation activities and industry trade shows as may be
requested from time-to-time by the Board of Directors.
9. Voting Agreement. Concurrent with the signing of this Agreement,
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Vision Capital L.P., Edgewater Private Equity Fund II, L.P. and Bluestem Capital
Partners II, L.P. (the "Shareholders") have executed a voting agreement (the
"Voting Agreement") pursuant to which
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they have agreed to continue to elect Xxxxxxxxx as a director of the Company
until the latter of: (i) one year from the date hereof, (ii) the date of the
closing of the Company's initial public offering or (iii) notice to the Company
or the Shareholders that Xxxxxxxxx does not wish to be reelected to the
Company's Board of Directors.
10. Confidentiality Agreement. Xxxxxxxxx has signed an Employee
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Proprietary Information Agreement with the Company (the "Confidentiality
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Agreement"). Xxxxxxxxx hereby represents and warrants to the Company that he
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has complied with all obligations under the Confidentiality Agreement and agrees
to continue to abide by the terms of the Confidentiality Agreement and further
agrees that the provisions of the Confidentiality Agreement shall survive any
termination of this Agreement or of Xxxxxxxxx'x employment relationship with the
Company. Xxxxxxxxx and the Company hereby agree that (i) the reference to
"employee" in the first line of paragraph 3 and (ii) the references to
"employment" in sixth and eighth lines of paragraph 5, the first, third and
fifth lines of paragraph 9 and the first line of paragraph 11 of the
Confidentiality Agreement shall include Xxxxxxxxx'x consulting relationship with
the Company under Section 8 hereof.
11. Noncompetition Covenant. Xxxxxxxxx hereby agrees that he shall not,
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during the period specified, do any of the following without the prior written
consent of the Company's Board of Directors:
(a) Compete. During (i) the term of his employment as President or
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Chief Executive Officer and the term of his service as Chairman of the Board of
Directors (as Full Time Chairman or otherwise) and (ii) for twelve (12) months
thereafter or the Consultation Period, whichever is longer, carry on any
business or activity (whether directly or indirectly, as a partner, stockholder,
principal, agent, director, affiliate, employee or consultant) which is
competitive with the business conducted by the Company (as conducted now or
during the term of Xxxxxxxxx'x employment), nor engage in any other activities
that conflict with Xxxxxxxxx'x obligations to the Company;
(b) Solicit Business. During (i) the term of his employment as
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President or Chief Executive Officer and the term of his service as Chairman of
the Board of Directors (as Full Time Chairman or otherwise) and (ii) for twelve
(12) months thereafter or the Consultation Period, whichever is longer, solicit
or influence or attempt to influence any client, customer or other person either
directly or indirectly, to direct his or its purchase of the Company's products
and/or services to any person, firm, corporation, institution or other entity in
competition with the business of the Company; and
(c) Solicit Personnel. During (i) the term of his employment as
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President or Chief Executive Officer and the term of his employment as Chairman
of the Board of Directors (as Full Time Chairman or otherwise) and (ii) for
twelve (12) months thereafter or the Consultation Period, whichever is longer,
solicit or influence or attempt to influence any person employed by the Company
to terminate or otherwise cease his employment with the Company or become an
employee of any competitor of the Company.
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12. Liability Insurance. The Company shall use reasonable efforts to
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obtain and maintain Directors' and Officers' Liability insurance, provided such
insurance is available to the Company at commercially reasonable rates as
determined by the Board of Directors.
13. Conflicts. Xxxxxxxxx represents that his performance of all the
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terms of this Agreement will not breach any other agreement to which Xxxxxxxxx
is a party. Xxxxxxxxx has not, and will not during the term of this Agreement,
enter into any oral or written agreement in conflict with any of the provisions
of this Agreement.
14. No Disparagement. Xxxxxxxxx agrees that neither he nor any person
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acting by, through, under or in concert with him will make negative or
disparaging remarks to any person or entity about the Company, its business, or
its employees. The Company agrees that, so long as all inquiries are directed to
an executive officer of the Company, the Company will make no negative or
disparaging remarks to any person or entity about Xxxxxxxxx.
15. Successors. Any successor to the Company (whether direct or
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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 agrees 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. The terms of this Agreement and all of Xxxxxxxxx'x
rights hereunder shall inure to the benefit of, and be enforceable by,
Xxxxxxxxx'x personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
16. Attorney's Fees. The Company shall pay up to $2,500 of the fees
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and expenses of Xxxxxxxxx'x counsel incurred in connection with negotiating this
Agreement and the Voting Agreement.
17. Miscellaneous Provisions.
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(a) Amendments and Waivers. Any term of this Agreement may be amended
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or waived only with the written consent of the parties.
(b) Sole Agreement; Termination of Prior Agreement. This Agreement
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(along with the Confidentiality Agreement) constitutes the sole agreement of the
parties and supersedes all oral negotiations and prior writings with respect to
the subject matter hereof. Without limiting the foregoing, the Prior Agreement
is hereby terminated in its entirety. The Confidentiality Agreement shall
remain in full force and effect.
(c) Notices. Any notice required or permitted by this Agreement shall
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be in writing and shall be deemed sufficient upon receipt, when delivered
personally or by a nationally-recognized delivery service (such as Federal
Express or UPS), or 48 hours after being deposited in the U.S. mail as certified
or registered mail with postage prepaid, if such notice is addressed to the
party to be notified at such party's address as set forth below or as
subsequently modified by written notice.
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(d) Press Releases and Public Statements. In the event that the
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Company hires a new President or Chief Executive Officer, the Company shall
issue a press release announcing such hiring. The Company shall consult with
Xxxxxxxxx before issuing the above-referenced press release and any other press
release or public statement with respect to Xxxxxxxxx and shall not issue any
such press release or make any such public statement without the prior consent
of Xxxxxxxxx, which shall not be unreasonably withheld; provided, however, that
the Company may, without the prior consent of Xxxxxxxxx, issue such press
release or such public statement as may upon the advice of outside legal counsel
be required by applicable law or the rules and regulations of the Nasdaq
National Market or any stock exchange on which the Company's stock is traded, if
it has used all reasonable efforts to consult with Xxxxxxxxx and its counsel and
allow Xxxxxxxxx and its counsel to comment thereon. Xxxxxxxxx shall consult
with the Company before issuing any press release or written public statement
with respect to the Company and shall not issue any such press release or
written public statement without the prior consent of the Company, which shall
not be unreasonably withheld. Prior to any presentation concerning the Company,
Xxxxxxxxx shall submit to the Company for approval the substance of such
presentation and shall generally follow the submitted material in making his
presentation.
(e) Indemnification. The terms and provisions contained in the
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Indemnity Agreement made and entered into on March 1, 1997 by and between the
Company and Xxxxxxxxx shall be applicable so long as Xxxxxxxxx is providing
Consulting Services to the Company pursuant to Section 8 hereof. Xxxxxxxxx
shall indemnify the Company against any and all expenses (including attorneys'
fees), witness fees, damages, judgments, fines and amounts paid in settlement
and any other amounts that the Company becomes legally obligated to pay because
of any claim or claims made against the Company on account of an assertion made
by Xxxxxxxxx in any press release, written public statement or presentation,
which assertion was made in contravention of the duties set forth in Subsection
(d) of this Section 18.
(f) Choice of Law. The validity, interpretation, construction and
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performance of this Agreement shall be governed by the laws of the State of
California, without giving effect to the principles of conflict of laws.
(g) Severability. If one or more provisions of this Agreement are
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held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then (i) such
provision shall be excluded from this Agreement, (ii) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (iii)
the balance of the Agreement shall be enforceable in accordance with its terms.
(h) Counterparts. This Agreement may be executed in counterparts,
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each of which shall be deemed an original, but all of which together will
constitute one and the same instrument.
(i) Arbitration. Any dispute or claim arising out of or related to
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this Agreement, including, but not limited to, any claim under Title VII of the
Civil Rights Act of 1964, the Equal Pay Act, the Fair Labor Standards Act, the
California Fair Employment and
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Housing Act, the California Labor Code and/or any other local, state or federal
law governing Xxxxxxxxx'x employment relationship with the Company, will be
finally settled by binding arbitration in San Francisco, California in
accordance with the Arbitration Rules and Procedures for Employment Disputes of
J.A.M.S. by one arbitrator appointed in accordance with said rules. The
arbitrator shall apply California or federal law, as applicable, without
reference to rules of conflicts of law or rules of statutory arbitration, to the
resolution of any dispute. Judgment on the award rendered by the arbitrator may
be entered in any court having jurisdiction thereof. Notwithstanding the
foregoing, the parties may apply to any court of competent jurisdiction for
preliminary or interim equitable relief, or to compel arbitration in accordance
with this paragraph, without breach of this arbitration provision. This Section
18(h) shall not apply to the Confidentiality Agreement.
(j) Advice of Counsel. EACH PARTY TO THIS AGREEMENT ACKNOWLEDGES
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THAT, IN EXECUTING THIS AGREEMENT, SUCH PARTY HAS HAD THE OPPORTUNITY TO SEEK
THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND HAS READ AND UNDERSTOOD ALL OF THE
TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED
AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF.
The parties have executed this Agreement as of the date first written above.
AENEID CORPORATION
By: /s/ Xxxx Xxxxx
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Title: Director, Finance and Administration
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Address: 000 0xx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
XXXXXX XXXXXXXXX
Signature: /s/ Xxxxxx Xxxxxxxxx
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Address: 0000 Xxxxxxx Xx.
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Xxx Xxxxxxxxx, XX 00000
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