1
EXHIBIT 10.36
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is dated effective as of
October 1, 1998, between Advantix, Inc., a Delaware corporation ("Company"), and
Xxxxxx Xxxxxx ("Executive"). In consideration of the mutual covenants and
agreements set forth herein, the parties hereto agree as follows:
ARTICLE I
EMPLOYMENT
The Company hereby employs Executive and Executive accepts employment
with the Company upon the terms and conditions herein set forth.
1.1 Employment. The Company hereby employs Executive, and Executive agrees
to serve as the Company's Executive Vice President, Sales and Marketing,
reporting directly to the Chief Executive Officer, or in such other management
position consistent with Executive's experience and reputation in the industry
as the Company shall determine, during the term of this Agreement. Executive
agrees to devote Executive's full business time and attention and best efforts
to the affairs of the Company during the term of this Agreement.
1.2 Term. Subject to the earlier termination of Executive's employment
by the Company pursuant to the provisions hereof, the term of employment of
Executive under this Agreement shall commence on the date hereof and shall
continue in effect for a period of one (1) year and four (4) months, plus any
extension as provided below. At the end of the initial term, or any additional
term, this Agreement shall automatically be extended for an additional one (1)
year, unless either Executive or Company gives written notice to the other of
its desire to terminate this Agreement at least six (6) months prior to the
scheduled end of the term.
1.3 Termination of Prior Agreement. Immediately upon the commencement of
Executive's employment pursuant to the terms of this Agreement, that certain
Employment Agreement by and between Executive and the Company dated as of
February 9, 1998, shall terminate and shall be of no further force or effect.
1
2
ARTICLE II
COMPENSATION
2.1 Annual Salary. During the employment of Executive, the Company
shall pay to Executive an initial base salary at the annual rate of $200,000
(the "Base Salary"), payable on the Company's regular payroll dates. The Company
may, in its sole and absolute discretion, increase Executive's Base Salary in
light of Executive's performance, inflation and cost of living, and other
factors deemed relevant by the Company; provided, however, Executive's Base
Salary may not be decreased below the initial Base Salary during the term of
this Agreement.
2.2 Bonus. In addition to Executive's Base Salary, Executive shall be
entitled to receive such bonuses, if any, as shall be determined by the Board of
Directors of the Company (the "Board") in its sole and absolute discretion. The
Board of Directors of the Company intends to develop a bonus plan for its
executive officers which will provide for potential bonus opportunities of up to
fifty percent (50%) of base salary.
2.3 Stock Option. Executive has been granted stock options to purchase
shares of the Company's Common Stock pursuant to the Company's Stock Option
Plans. The options granted to Executive on or prior to the date of this
Agreement are referred to as the "Options". To the extent the Options is
outstanding twenty-four (24) months following a Corporate Transaction or Change
in Control (as defined in Article IV), all option shares at the time subject to
the Options shall automatically vest in full on an accelerated basis so that the
Options will immediately become exercisable for all the option shares as fully
vested shares. Not withstanding the terms and conditions of the Options
agreements and the applicable stock options plan, Section 4.5 of this Agreement
shall govern the acceleration, if any, of the Options upon the Executive's
termination of employment.
2.4 Reimbursement of Expenses. Executive shall be entitled to receive
prompt reimbursement of all reasonable and necessary expenses incurred by
Executive in performing services hereunder, provided that such expenses are
incurred and accounted for in accordance with the policies and procedures
established by the Company.
2.5 Benefits. Executive shall be entitled to participate in and be
covered by health, insurance, pension and other employee plans and benefits
currently or
2
3
hereafter established for the employees of the Company generally (collectively
referred to as the "Company Benefit Plans") on at least the same terms as other
employees of the Company, subject to meeting applicable eligibility
requirements. The Company will pay for Executive's existing health care package
up to a maximum of $1,000 per month until Executive can reasonably obtain
coverage under the Company's benefit plans.
2.6 Vacations and Holidays. During Executive's employment with the Company,
Executive shall be entitled to an annual vacation leave of three (3) weeks at
full pay, or such greater vacation benefits as may be provided for by the
Company's vacation policies applicable to senior executives. Executive shall be
entitled to such holidays as are established by the Company for all employees.
2.7 Automobile Allowance. The Company shall provide Executive with an
automobile allowance of $600 per month.
2.8 Relocation Expense Reimbursement. At the time of Executive's
relocation to Orange County, California, the Company will provide Executive a
reasonable reimbursement arrangement with respect to relocation expenses,
including the following:
(a) The physical move and storage (if required) of a reasonable amount
of personal/household goods.
(b) Temporary housing in Orange County, as required until the sale of
Executive's current principal residence and/or the purchase of a new
principal residence in Orange County can be finalized.
(c) Two house-hunting trips to the Orange County area.
(d) Air (coach class) and ground transportation between the Bay Area and
Orange County.
(e) Reimbursement of reasonable brokerage commissions/fees (closing
costs and other fees) associated with the disposition of Executive's
current principal residence in Alameda, California, as well as the
closing costs associated with the purchase of a suitable principal
residence in Orange County.
(f) Any reasonable documented expenses not previously referenced as
incurred by Executive in connection with his relocation.
3
4
All such expenses to be approved by the Company in advance.
ARTICLE III
CONFIDENTIALITY, NONDISCLOSURE AND NONCOMPETITION
3.1 Confidentiality. Executive will not during Executive's employment by the
Company or thereafter at any time disclose, directly or indirectly, to any
person or entity or use for Executive's own benefit any trade secrets or
confidential information relating to the Company's business operations,
marketing data, business plans, strategies, employees, negotiations and
contracts with other companies, or any other subject matter pertaining to the
business of the Company or any of their clients, customers, consultants, or
licensees, known, learned, or acquired by Executive during the period of
Executive's employment by the Company (collectively "Confidential Information"),
except as may be necessary in the ordinary course of performing Executive's
particular duties as an employee of the Company and further excepting any such
information which is or becomes available to the public through no fault of
Executive. For purposes of this Article III, the term "Company" shall mean the
Company and each of its subsidiaries.
3.2 Return of Confidential Material. Executive shall promptly deliver to the
Company on termination of Executive's employment with the Company, whether or
not for cause and whatever the reason, or at any time the Company may so
request, all memoranda, notes, records, reports, manuals, drawings, blueprints,
Confidential Information and any other documents of a confidential nature
belonging to the Company, including all copies of such materials which Executive
may then possess or have under Executive's control. Upon termination of
Executive's employment by the Company, Executive shall not take any document,
data, or other material of any nature containing or pertaining to the
proprietary information of the Company.
3.3 Prohibition on Solicitation of Customers. During the term of Executive's
employment with the Company and for a period of two (2) years thereafter,
Executive shall not, directly or indirectly, either for Executive or for any
other person or entity, solicit any person or entity to terminate such person's
or entity's contractual and/or business relationship with the Company, nor shall
Executive interfere with or disrupt or attempt to interfere with or disrupt any
such relationship. None of the foregoing shall be deemed a waiver of any and all
rights and remedies the Company may have under applicable law.
3.4 Prohibition on Solicitation of Employees, Agents or Independent
Contractors After Termination. During the term of Executive's employment with
4
5
the Company and for a period of two (2) years thereafter, Executive will not
solicit any of the employees, agents or independent contractors of the Company
to leave the employ of the Company for a competitive company or business.
However, Executive may solicit any employee, agent or independent contractor who
voluntarily terminates his or her employment with the Company after a period of
90 days have elapsed since the termination date of such employee, agent or
independent contractor. None of the foregoing shall be deemed a waiver of any
and all rights and remedies the Company may have under applicable law.
3.5 Noncompetition.
(a) Executive acknowledges that: (i) the services to be
performed by Executive under this Agreement are of a special, unique,
unusual, extraordinary, and intellectual character; (ii) the Company has
required that Executive make the covenants set forth in this Section 3.5
as a condition to the Company's entering into this Agreement; and (iii)
the provisions of this Section 3.5 are reasonable and necessary to
protect the business of the Company.
(b) In consideration of the acknowledgments by Executive, and in
consideration of the compensation and benefits to be paid or provided to
Executive by the Company under this Agreement, Executive covenants that
Executive will not, directly or indirectly:
(i) during the term of Executive's employment with the
Company hereunder and for a period of two (2) years thereafter
(the "Covenant Period"), engage or invest in, own, manage,
operate, finance, control, or participate in the ownership,
management, operation, financing, or control of, be employed by,
associated with, or in any manner connected with, lend
Executive's name or any similar name to, lend Executive's credit
to, or render services or advice to, any business whose products
or activities compete in the Territory (as defined below),
directly or indirectly, with (i) the Company's ticketing products
or services or (ii) with any products or services of the Company
as of the time of the Executive's termination; provided, however,
that Executive may purchase or otherwise acquire up to (but not
more than) one percent of any class of securities of any
enterprise (but without otherwise participating in the activities
of such enterprise) if such securities are listed on any national
or regional securities exchange or have been registered under
Section 12(g) of the Securities Exchange Act of 1934. Executive
agrees that this covenant is
5
6
reasonable with respect to its duration, geographical area, and
scope. For purposes hereof, "Territory" shall mean any county of
any state of the United States of America, including any county
in the States of California, Connecticut, Ohio or New York, and
any other states or international jurisdictions in which the
Company is doing business at the time of Executive's
termination.
(ii) at any time during or after the Covenant Period,
disparage the Company, or any of its shareholders, directors,
officers, employees, or agents.
(c) Executive will, for the Covenant Period, within ten days
after accepting any employment, advise the Company of the identity of
any employer of Executive. The Company may serve notice upon each such
employer that Executive is bound by this Agreement and furnish each such
employer with a copy of this Agreement or relevant portions thereof.
3.6 Enforcement. It is the intent of the parties that the restrictive
covenants contained in this Article III are severable and separate and the
unenforceability of any individual provision shall not effect the enforceability
of any other. If any covenant in this Article III is held to be unreasonable,
arbitrary, or against public policy, such covenant will be considered to be
divisible with respect to scope, time, and geographic area, and such lesser
scope, time, or geographic area, or all of them, as a court of competent
jurisdiction may determine to be reasonable, not arbitrary, and not against
public policy, will be effective, binding and enforceable against the Executive.
3.7 Survival of Obligations. Executive agrees that the terms of this
Article III shall survive the term of this Agreement and the termination of
Executive's employment by the Company.
ARTICLE IV
TERMINATION
4.1 For purposes of this Article IV, the following definitions shall
apply to the terms set forth below:
(a) Cause. "Cause" shall include the following:
(i) habitual neglect or insubordination (defined as a
6
7
refusal to execute or carry out directions from the Board or its
duly appointed designees) where Executive has been given written
notice of the acts or omissions constituting such neglect or
insubordination and Executive has failed to cure such conduct,
where susceptible to cure, within thirty (30) days following
notice;
(ii) conviction of any felony or any crime involving moral
turpitude;
(iii) participation in any fraud against the Company;
(iv) willful breach of Executive's duties to the Company,
including but not limited to theft from the Company, failure to
fully disclose personal pecuniary interest in a transaction
involving the Company, violation of the Company's authority
limits on commitments, trading, controls and notification;
(v) intentional damage to any property of the Company;
(vi) conduct by Executive which in the good faith,
reasonable determination of the Board demonstrates gross
unfitness to serve including, but not be limited to, gross
neglect, non-prescription use of controlled substances, any abuse
of controlled substances whether or not by prescription, or
habitual drunkenness, intoxication, or other impaired state
induced by consumption of any drug, including alcohol; or
(vii) material breach by the Executive of those provisions
of this Agreement concerning non-competition or the
confidentiality of trade secrets or proprietary or other
information.
(b) Change in Control. "Change in Control" shall mean a change
in ownership or control of the Company effected through either of the
following transactions:
(i) the acquisition, directly or indirectly, by any person
or related group of persons (other than the Company or a person
that directly or indirectly controls, is controlled by, or is
under common control with, the Company) of beneficial ownership
(within the meaning of Rule 13d-3 of the 1934
7
8
Securities Exchange Act, as amended) of securities possessing
more than fifty (50%) of the total combined voting power of the
Company's outstanding securities pursuant to a tender or exchange
offer made directly to the Company's stockholders, or
(ii) a change in the composition of the Company's Board
over a period of thirty-six (36) consecutive months or less such
that a majority of the Board members ceases, by reason of one or
more contested elections for Board membership, to be comprised of
individuals who either (a) have been Board members continuously
since the beginning of such period or (b) have been elected or
nominated for election as Board members described in clause (a)
who were still in office at the time the Board approved such
election or nomination.
(c) Corporate Transaction. "Corporate Transaction" shall mean
either of the following stockholder-approved transactions to which the
Company is a party:
(i) a merger or consolidation in which securities
possessing more than fifty percent (50%) of the total combined
voting power of the Company's outstanding securities are
transferred to a person or persons different from the persons
holding those securities immediately prior to such transaction,
or
(ii) the sale, transfer or other disposition of all or
substantially all of the Company's assets in complete liquidation
or dissolution of the Company.
(d) Disability. "Disability" shall mean a physical or mental
incapacity as a result of which Executive becomes unable to continue the
proper performance of his duties hereunder (reasonable absences because
of sickness for up to three (3) consecutive months excepted; provided,
however, that any new period of incapacity or absences shall be deemed
to be part of a prior period of incapacity or absences if the prior
period terminated within ninety (90) days of the beginning of the new
period of incapacity or absence and the incapacity or absence is
determined by the Company's Board of Directors, in good faith, to be
related to the prior incapacity or absence.) A determination of
Disability shall be subject to the certification of a qualified medical
doctor agreed to by the Company and Executive or, in the event of
Executive's incapacity to designate a doctor, Executive's legal
representative. In the absence of agreement between the Company and
Executive, each party shall nominate a qualified medical
8
9
doctor and the two (2) doctors so nominated shall select a third doctor,
who shall make the determination as to Disability.
(e) Good Reason. "Good Reason" shall mean:
(i) assignment of the Executive without Executive's
consent to a position, responsibilities or duties of a materially
lesser status or degree of responsibility than his position,
responsibilities or duties as of the date of this Agreement;
(ii) relocation of the Executive outside of the Orange
County area without Executive's consent;
(iii) a reduction by the Company of the Executive's Base
Salary below the initial Base Salary or, following a Change in
Control, below Executive's Base Salary at the time of the Change
in Control, without Executive's consent;
(iv) a failure by the Company to continue in effect,
without substantial change, any benefit plan or arrangement in
which the Executive was participating or the taking of any action
by the Company which would adversely affect the Executive's
participation in or materially reduce his benefits under any
benefit plan (unless such failure, action or changes apply
equally to substantially all other management employees of
Company); or
(v) any material breach by the Company of any provision of
this Agreement without the Executive having committed any
material breach of Executive's obligations hereunder, which
breach is not cured within thirty (30) days following written
notice thereof to the Company of such breach; provided, however,
that the events listed herein shall constitute "Good Reason" only
for a period of ninety (90) days following the occurrence
thereof.
4.2 Termination by Company. The Company may terminate Executive's employment
hereunder immediately for Cause. Subject to the other provisions contained in
this Agreement, the Company may terminate this Agreement for any reason other
than Cause upon thirty (30) days' written notice to Executive. The effective
date of termination ("Effective Date") shall be considered to be the date of
notice of termination if for Cause and thirty (30) days subsequent to written
notice of termination for any reason other than Cause; however, the Company may
elect to have Executive leave the Company immediately.
9
10
4.3 Termination by Executive. Executive may terminate this Agreement
upon thirty (30) days' written notice to the Company. The effective date of
termination ("Effective Date") shall be considered to be thirty (30) days
subsequent to written notice of termination; however, the Company may elect to
have Executive leave the Company immediately.
4.4 Death or Disability of Executive. This Agreement shall terminate
immediately upon the death or Disability of Executive (the "Effective Date").
4.5 Severance Benefits Received Upon Termination.
(a) If Executive's employment is terminated by the Company for
Cause, or Executive terminates this Agreement without Good Reason, then
the Company shall pay Executive's Base Salary through the Effective Date
of such termination plus credit for any vacation earned but not taken
and the Company shall thereafter have no further obligations to
Executive under this Agreement. If as a result of arbitration, or if a
court of competent jurisdiction later determines that termination by the
Company of the Executive's employment purportedly for Cause was without
Cause, the termination will be deemed a termination without Cause, and
Executive will be entitled to the benefits set forth below.
(b) Except as otherwise provided in Section 4.5(c) below, if
Executive's employment is terminated by the Company without Cause or as
a result of Disability, or if Executive's employment is terminated by
Employee for Good Reason, then the Company shall provide Executive:
(i) salary continuation in an amount equal to Executive's
then Base Salary for a period of six (6) months, commencing on
the Effective Date, said sum to be paid in equal installments at
the times salary payments are usually made by the Company; and
(ii) if, and only if, such termination occurs more than
six (6) months after Executive commences employment with the
Company, acceleration and immediate vesting of fifty percent
(50%) of the unvested shares subject to each of the Executive's
options outstanding at the Effective Date (including the Options
described in Section 2.3), and such accelerated Options as well
as any other Options which have vested shall be exercisable for
the three (3)-month period measured from the date of the
Executive's termination, except for Executive's termination by
reason of a disability where the Options shall remain exercisable
for such fully
10
11
vested shares until the expiration of the twelve (12)-month
period measured from the date of the Executive's termination of
continuous status as an employee, and shall then expire and be of
no further force or effect;
(iii) health insurance coverage as then in effect for
Executive, Executive's spouse and dependent children for a period
of six (6) months, commencing on the Effective Date, subject to
any employee contribution provisions as defined in the Company
Benefit Plans. Subsequent health insurance benefits will be in
accordance with COBRA. The Company shall thereafter have no
further obligations under this Agreement.
(c) If within twenty-four (24) months of a Corporate Transaction
or Change in Control the Executive's employment is terminated by the
Company without Cause or by Executive for Good Reason, then the Company
shall provide Executive:
(i) salary continuation in an amount equal to Executive's
then Base Salary for a period of twelve (12) months, commencing
on the Effective Date, said sum to be paid in equal installments
at the times salary payments are usually made by the Company; and
(ii) if, and only if, such termination occurs more than
six (6) months after Executive commences employment with the
Company, acceleration and immediate vesting of one hundred
percent (100%) of Executive's Options which have not yet vested
by the Effective Date, and such accelerated Options as well as
any other Options which have vested and which are then
exercisable for a period of twelve (12) months following the
Effective Date and shall then expire and be of no further force
or effect; and
(iii) health insurance coverage as then in effect for
Executive, Executive's spouse and dependent children for a period
of twelve (12) months, commencing on the Effective Date, subject
to any employee contribution provisions as defined in the Company
Benefit Plans. Subsequent health insurance benefits will be in
accordance with COBRA. The Company shall thereafter have no
further obligations under this Agreement.
(d) If Executive's employment is terminated by the Company as a
result of death, then the Company shall pay Executive's Base Salary
through the Effective Date of such termination plus credit for any
vacation earned but not
11
12
taken and the Company shall provide Executive's spouse and dependent
children health insurance coverage as then in effect for Executive,
Executive's spouse and dependent children for a period of six (6)
months, subject to any employee contribution provisions as defined in
the Company Benefit Plans. Health insurance benefits subsequent to the
continuation period will be in accordance with COBRA. The Company shall
thereafter have no further obligations under this Agreement.
(e) Notwithstanding the foregoing, Executive shall not be
entitled to the severance benefits set forth in this Section 4.5 in the
event of Executive's termination upon expiration of the term of this
Agreement.
4.6 Expiration of Term. If Executive's employment is terminated as a
result of the expiration of the term of this Agreement, then the Company shall
pay Executive's Base Salary through the expiration date plus credit for any
vacation earned but not taken and the Company shall thereafter have no further
obligations under this Agreement.
ARTICLE V
GENERAL PROVISIONS
5.1 Notices. All notices, demands, requests, consents, approvals or other
communications (collectively "Notices") required or permitted to be given
hereunder or which are given with respect to this Agreement shall be in writing
and may be personally served or may be deposited in the United States mail,
registered or certified, return receipt requested, postage prepaid, addressed as
follows:
To the Company: Advantix, Inc.
0000 XxxXxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Attn: W. Xxxxxx Xxxxxx
To Executive: Xxxxxx Xxxxxx
000 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
or such other address as such party shall have specified most
recently by written notice. Notice mailed as provided herein
shall be deemed given on the fifth business day following the
date so mailed or on the date of actual receipt, whichever is
earlier.
12
13
5.2 Proprietary Information and Inventions. Contemporaneously with the
execution of this Agreement, Executive shall execute a Proprietary Information
and Inventions Agreement in the form attached as Exhibit A hereto. The terms of
said agreement are incorporated by reference in this Agreement, and Executive
agrees to be bound thereby.
5.3 Covenant to Notify Management. Executive agrees to abide by the ethics
policies of the Company as well as the Company's other rules, regulations,
policies and procedures. Executive agrees to comply in full with all
governmental laws and regulations as well as ethics codes applicable to the
profession. In the event that Executive is aware or suspects the Company, or any
of its officers or agents, of violating any such laws, ethics codes, rules,
regulations, policies or procedures, Executive agrees to bring all such actual
and suspected violations to the attention of the Company immediately so that the
matter may be properly investigated and appropriate action taken. Executive
understands that he is precluded from filing a complaint with any governmental
agency or court having jurisdiction over wrongful conduct unless Executive has
first notified the Company of the facts and permits it to investigate and
correct the concerns.
5.4 No Waivers. No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing
signed by Executive and the Company. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time.
5.5 Beneficial Interests. This Agreement shall inure to the benefit of
and be enforceable by Executive's personal and legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If
Executive should die while any amounts are still payable to him hereunder, all
such amounts, unless otherwise provided herein, shall be paid in accordance with
the terms of this Agreement to Executive's devisee, legatee, or other designee
or, if there be no such designee, to Executive's estate.
5.6 Choice of Law. This Agreement shall be governed by and
13
14
construed in accordance with the laws of the State of California.
5.7 Statute of Limitations. Executive and the Company hereby agree that
there shall be a one year statute of limitations for the filing of any requests
for arbitration or any lawsuit relating to this Agreement or the terms or
conditions of Executive's employment by the Company. If such a claim is filed
more than one year subsequent to Executive's last day of employment it shall be
precluded by this provision, regardless of whether or not the claim has accrued
at that time.
5.8 Right to Injunctive and Equitable Relief. Executive's obligations
under Article III are of a special and unique character which gives them a
peculiar value. The Company cannot be reasonably or adequately compensated for
damages in an action at law in the event Executive breaches such obligations.
Therefore, Executive expressly agrees that the Company shall be entitled to
injunctive and other equitable relief without bond or other security in the
event of such breach in addition to any other rights or remedies which the
Company may possess or be entitled to pursue. Furthermore, the obligations of
Executive and the rights and remedies of the Company under Article III are
cumulative and in addition to, and not in lieu of, any obligations, rights, or
remedies created by applicable law.
5.9 Severability or Partial Invalidity. The invalidity or
unenforceability of any provisions of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement, which shall
remain in full force and effect.
5.10 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which taken together shall
constitute but one and the same instrument.
5.11 Attorneys' Fees. In the event any action in law or equity, arbitration
or other proceeding is brought for the enforcement of this Agreement or in
connection with any of the provisions of this Agreement, the prevailing party
shall be entitled to his or its attorneys' fees and other costs reasonably
incurred in such action or proceeding.
5.12 Entire Agreement. This Agreement, along with the Proprietary Information
and Inventions Agreement by and between Executive
14
15
and the Company of even date herewith (the "Proprietary Information Agreement"),
constitutes the entire agreement of the parties and supersedes all prior written
or oral and all contemporaneous oral agreements, understandings, and
negotiations between the parties with respect to the subject matter hereof. This
Agreement, along with the Proprietary Information Agreement, is intended by the
parties as the final expression of their agreement with respect to such terms as
are included herein and therein and may not be contradicted by evidence of any
prior or contemporaneous agreement. The parties further intend that this
Agreement, along with the Proprietary Information Agreement, constitutes the
complete and exclusive statement of their terms and that no extrinsic evidence
may be introduced in any judicial proceeding involving such agreements.
5.13 Assignment. This Agreement and the rights, duties, and obligations
hereunder may not be assigned or delegated by any party without the prior
written consent of the other party and any attempted assignment or delegation
without such prior written consent shall be void and be of no effect.
Notwithstanding the foregoing provisions of this Section 5.13, the Company may
assign or delegate its rights, duties, and obligations hereunder to any
affiliate or to any person or entity which succeeds to all or substantially all
of the business of the Company through merger, consolidation, reorganization, or
other business combination or by acquisition of all or substantially all of the
assets of the Company.
5.14 Dispute Resolution. Except as provided in Section 5.8, any controversy,
dispute, claim or other matter in question arising out of or relating to the
interpretation, performance or breach of this Agreement shall be finally
determined, at the request of any party, by binding arbitration conducted in
accordance with the then existing rules for commercial arbitration of the
American Arbitration Association, and judgment upon any award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. Such
arbitration shall be conducted in Orange County, California. The arbitrator
shall award to the prevailing party, in addition to the costs of the proceeding,
that party's reasonable attorney's fees. The Company reserves the right to seek
judicial provisional remedies and equitable relief regarding any breach or
threatened breach of Executive's obligations regarding the matters set forth in
Article III hereof.
15
16
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
"COMPANY"
ADVANTIX, INC.
By:
---------------------------------
Xxxxxxx X. Xxxx
Chairman
Compensation Committee
"EXECUTIVE"
---------------------------------
Xxxxxx Xxxxxx
16
17
MEMO
To: Xxxx Xxxxxx
From: Xxxxxx Xxxxxx
Date: October 27, 1998
Subject: Revised Employment Agreement
Enclosed is a revised employment agreement reflecting changes consistent with
the 1998 Stock Incentive Plan. Specifically, these differences include the
definition of a Change in Control (or Corporate Transaction as defined in the
new agreement) and the acceleration of vesting provision for those contract
employees classified as Class B as defined in the 1998 Stock Option Plan
document. Below is a summary of the changes to the section of the agreement as
noted. All other provisions remain the same.
CHANGE IN CONTROL OR CORPORATE TRANSACTION
(SECTION 4.1 OF AGREEMENT)
Definition per old agreement:
Change in Control" shall mean a change in ownership or control of the Company
effected through either of the following transactions:
(i) any corporation, partnership, person, other entity or group
(as defined in Section 13(d)(3) of the Securities Exchange Act of 1934,
as amended) (collectively, a "Person"), after the successful completion
of an initial public offering of the Company's capital stock, acquires
shares of capital stock of the Company representing more than thirty
percent (30%) of the total number of shares of capital stock that may be
voted for the election of directors of the Company;
(ii) a merger, consolidation or other business combination of
the Company with or into another Person is consummated, or all or
substantially all of the assets of the Company are acquired by another
Person, as a result of which the stockholders of the Company immediately
prior to the consummation of such transaction own, immediately after
consummation of such transaction, equity securities possessing less than
seventy percent (70%) of the voting power of the surviving or acquiring
Person (or any Person in control of the surviving or acquiring Person),
the equity securities of which are issued or transferred in such
transaction;
(iii) as the result of or in connection with any tender or
exchange offer, any contested election of directors or any combination
thereof, the persons who were
18
directors of the Company immediately before such tender or exchange
offer, contested election or combination thereof cease to constitute a
majority of the Board of Directors of the Company or any successor to
the Company;
(iv) the stockholders of the Company approve a plan of complete
liquidation, dissolution or winding up of the Company or an agreement
for the sale or other disposition of all or substantially all of the
assets of the Company; or
(v) the adoption of a resolution by the affirmative vote of not
less than two-thirds of the members of the Board of Directors who are
members immediately prior to any Change in Control, which resolution
shall state that, in the good faith determination of the Board of
Directors, a Change in Control of the Company has occurred.
Notwithstanding anything to the contrary set forth in this definition, if a
transaction that would otherwise create or result in a Change in Control of the
Company is approved by the affirmative vote of not less than two-thirds of the
members of the Board of Directors of the Company, who are members of the Board
of Directors immediately prior to any Change in Control, then no Change in
Control of the Company shall be deemed to have occurred for the purposes of this
Agreement.
DEFINITIONS PER NEW AGREEMENT
Change in Control" shall mean a change in ownership or control of the Company
effected through either of the following transactions:
(i) the acquisition, directly or indirectly, by any person or
related group of persons (other than the Company or a person that
directly or indirectly controls, is controlled by, or is under common
control with, the Company) of beneficial ownership (within the meaning
of Rule 13d-3 of the 1934 Securities Exchange Act, as amended) of
securities possessing more than fifty (50%) of the total combined voting
power of the Company's outstanding securities pursuant to a tender or
exchange offer made directly to the Company's stockholders, or
(ii) a change in the composition of the Company's Board over a
period of thirty-six (36) consecutive months or less such that a
majority of the Board members ceases, by reason of one or more contested
elections for Board membership, to be comprised of individuals who
either (a) have been Board members continuously since the beginning of
such period or (b) have been elected or nominated for election as Board
members described in clause (a) who were still in office at the time the
Board approved such election or nomination.
19
Corporate Transaction. "Corporate Transaction" shall mean either of the
following stockholder-approved transactions to which the Company is a party:
(i) a merger or consolidation in which securities possessing
more than fifty percent (50%) of the total combined voting power of the
Company's outstanding securities are transferred to a person or persons
different from the persons holding those securities immediately prior to
such transaction, or
(ii) the sale, transfer or other disposition of all or
substantially all of the Company's assets in complete liquidation or
dissolution of the Company.
ACCELERATION OF VESTING PROVISIONS
(SECTIONS 2.3 AND 4.5 OF AGREEMENT)
Employee Old Agreement New Agreement
Xxxx Xxxxxx If terminated within 12 100% vested as of 24 months of
(Class B) months of Change in Control Change in Control or Corporate
50% immediate vesting of Transaction or 100% vested if
unvested shares. involuntarily terminated within 24
months of Change in Control or
Corporate Transaction.
Andy, please sign both copies and return one original to may attention. Please
call me if you have any questions.
