EXHIBIT 10.2.7.5
November 14, 2002
Xxxxxxx Xxxxxx
Dear Xx. Xxxxxx:
We are pleased to inform you that the Company's Board of
Directors has approved a special severance benefit program for you and other key
executives. The purpose of this letter agreement is to set forth the terms and
conditions of your new severance package and to explain the limitations that may
impact the overall value of that package under certain circumstances.
Under the new program, you will become entitled to severance
benefits in the event: (i) your employment is terminated by the Company other
than for cause or (ii) your employment terminates under certain circumstances
within a specified time period following a substantial change in ownership or
control of the Company. The level of your severance benefits will vary with the
circumstances under which your employment terminates. To understand the full
scope of your benefits, you should familiarize yourself with the definitional
provisions of Part One of this letter agreement. The benefits comprising your
severance package are detailed in Parts Two and Three, and the dollar
limitations on the overall value of your benefit package and other applicable
restrictions are specified in Parts Four and Five. Part Six deals with ancillary
matters affecting your severance arrangement.
The severance benefits set forth in this letter agreement will
be in addition to the special vesting acceleration provisions which will become
effective for one or more of your outstanding options to purchase shares of the
Company's common stock should your employment terminate under the circumstances
set forth in the various agreements governing those options. However, this
letter agreement will supersede all other severance benefits to which you might
otherwise be entitled from the Company, and you must, as a condition to your
entitlement to your severance benefits under this letter agreement, execute the
Acknowledgement section at the end of this letter in which you agree that the
severance benefits provided under this letter agreement will replace your
existing severance benefit package (other than the special vesting acceleration
provisions in effect for your options) and that you will have no further rights
or entitlements under that replaced package.
PART ONE -- DEFINITIONS
For purposes of this letter agreement, the following
definitions will be in effect:
AUTHORIZED RESIGNATION means your voluntary resignation from
employment with the Company for any reason within the ninety (90)-day period
beginning six (6) months after the effective date of a Change in Control or
Business Segment Sale. Your resignation at any other time or under any other
circumstances will not constitute an Authorized Resignation and will not entitle
you to any severance benefits under Part Three of this letter agreement.
November 14, 2002
Page 2
AVERAGE COMPENSATION means the average of your W-2 wages from
the Company for the five (5) calendar years (or such fewer number of calendar
years of employment with the Company) completed immediately prior to the
calendar year in which the Change in Control or Business Segment Sale is
effected. Any W-2 wages for a partial year of employment will be annualized, in
accordance with the frequency which such wages are paid during such partial
year, before inclusion in your Average Compensation.
BASE SALARY means, for purposes of your salary continuation
benefits under Part Two of this letter agreement, the monthly rate of base
salary in effect for you at the time of your Involuntary Termination. BASE
SALARY means, for purposes of your salary continuation benefits under Part Three
of this letter agreement, the monthly rate of base salary in effect for you
immediately prior to the Change in Control or Business Segment Sale or (if
greater) the monthly rate of base salary in effect at the time of your
Authorized Resignation or Involuntary Termination.
BOARD means the Company's Board of Directors.
BUSINESS SEGMENT SALE means the sale or other spinoff of all
or substantially all of the assets primarily attributable to the Company's
operation of the following business segment: the Web Properties line of
business.
CHANGE IN CONTROL means a change in the ownership or control
of the Company effected through any of the following transactions:
(i) a merger, consolidation or reorganization
approved by the Company's stockholders, unless securities representing
more than fifty percent (50%) of the total combined voting power of the
outstanding voting securities of the successor corporation are
immediately thereafter beneficially owned, directly or indirectly and
in substantially the same proportion, by the persons who beneficially
owned the Company's outstanding voting securities immediately prior to
such transaction, or
(ii) any stockholder-approved sale, transfer or
other disposition of all or substantially all of the Company's assets
in complete liquidation or dissolution of the Company;
(iii) any transaction or series of related
transactions pursuant to which any person or any group of persons
comprising a "group" within the meaning of Rule 13d-5(b)(1) under the
Securities Exchange Act of 1934, as amended (other than the Company or
a person that, prior to such transaction or series of related
transactions, directly or indirectly controls, is controlled by or is
November 14, 2002
Page 3
under common control with, the Company) becomes directly or indirectly
the beneficial owner (within the meaning of Rule 13d-3 of the
Securities Exchange Act of 1934, as amended) of securities possessing
(or convertible into or exercisable for securities possessing)
thirty-five percent (35%) or more of the total combined voting power of
the Company's securities (determined by the power to vote with respect
to the elections of Board members) outstanding immediately after the
consummation of such transaction or series of related transactions,
whether such transaction involves a direct issuance from the Company or
the acquisition of outstanding securities held by one or more of the
Company's stockholders; or
(iv) a change in the composition of the 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 during such period by at least a majority of
the Board members described in clause (A) who were still in office at
the time the Board approved such election or nomination.
CODE means the Internal Revenue Code of 1986, as amended.
COMMON STOCK means the Company's common stock.
COMPANY means Ask Jeeves, Inc. a Delaware corporation, or any
successor corporation, whether or not resulting from a Change in Control.
CORPORATE AFFILIATE means any parent corporation of the
Company within the meaning of Code Section 424(e) or any subsidiary corporation
of the Company within the meaning of Code Section 424(f).
DISABILITY means your inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment expected to result in death or to be of continuous duration of twelve
(12) months or more.
FAIR MARKET VALUE means, with respect to the shares of Common
Stock subject to any of your Options, the closing selling price per share of
such Common Stock on the date in question, as such price is quoted on the Nasdaq
National Market and published in THE WALL STREET JOURNAL. If there is no selling
price quoted for the Common Stock on the date in question, then the Fair Market
Value shall be the closing selling price on the last preceding date for which
such quotation exists.
November 14, 2002
Page 4
HEALTH CARE COVERAGE means the continued coverage to which you
and your eligible dependents may, at the Company's expense, become entitled,
under the Company's health plans pursuant to the severance benefit provisions of
Part Two or Part Three of this letter agreement.
INVOLUNTARY TERMINATION means (i) the involuntary termination
of your employment with the Company other than a Termination for Cause or (ii)
your voluntary resignation within sixty (60) days following (A) a reduction in
the aggregate dollar amount of your Base Salary and Target Bonus by more than
fifteen percent (15%) or (B) a relocation of your principal place of employment
by more than fifty (50) miles, provided and only if such reduction or relocation
is effected by the Company without your consent. Solely for purposes of your
severance benefits under Part Two of this letter agreement, and not for purposes
of your entitlement to severance benefits under Part Three of this letter
agreement, an Involuntary Termination will also include your voluntary
resignation within sixty (60) days following a material reduction in your duties
and responsibilities or the level of management to which you report.
An Involuntary Termination will not be deemed to occur in the
event your employment terminates by reason of your death or Disability or
Termination for Cause. In no event shall an Involuntary Termination be deemed to
have occurred as a result of the change in your title, duties and
responsibilities as President of Jeeves Solutions to that of Chief Strategy
Officer which became effective in July 2002.
OPTION means any option granted to you under the Plans which
is outstanding at the time of (i) your Involuntary Termination, whether or not
in connection with a Change in Control or Business Segment Sale, (ii) a Change
in Control or Business Segment Sale or (iii) your Authorized Resignation. For
purposes of this letter agreement, your Options will be divided into two (2)
separate categories as follows:
(i) Spring 2002 Focal Review Option: the Option
granted to you under the Company's 1999 Equity Incentive Plan in April
2002.
(ii) Other Options: any Options granted to you
under the Plans other than the Spring 2002 Focal Review Option. Any
vesting acceleration provisions currently in effect for the Other
Options you hold will remain in full force and effect, and nothing in
this letter agreement will affect, modify or supersede those vesting
acceleration provisions.
November 14, 2002
Page 5
OPTION PARACHUTE PAYMENT means, with respect to each of your
Options, the portion of that Option deemed to be a parachute payment under Code
Section 280G and the Treasury Regulations issued thereunder. The portion of such
Option which is categorized as an Option Parachute Payment will be calculated in
accordance with the valuation provisions established under Code Section 280G and
the applicable Treasury Regulations and will include an appropriate dollar
adjustment to reflect the lapse of your obligation to remain in the Company's
employ as a condition to the vesting of each accelerated installment.
OTHER AGREEMENTS mean the following agreements between you and
the Company to the extent those agreements provide for the accelerated vesting
of one or more of your Other Options should your employment be terminated under
the circumstances specified in the applicable agreement: (i) your June 18, 1999
letter agreement, (ii) the December 23, 1999 letter of intent relating to equity
incentives and (iii) the January 2, 2001 Incentive Agreement, as amended and
modified from time to time.
OTHER PARACHUTE PAYMENT means any payment in the nature of
compensation (other than the benefits to which you become entitled under Part
Three of this letter agreement) which are made to you in connection with the
Change in Control or Business Segment Sale and which qualify as parachute
payments within the meaning of Code Section 280G(b)(2) and the Treasury
Regulations issued thereunder. Your Other Parachute Payment will include
(without limitation) the Present Value, measured as of the Change in Control or
Business Segment Sale, of the aggregate Option Parachute Payment attributable to
all of your Other Options (if any).
PARACHUTE PAYMENT means any payment or benefit provided you
under Part Three of this letter agreement which is deemed to constitute a
parachute payment within the meaning of Code Section 280G(b)(2) and the Treasury
Regulations issued thereunder.
PLANS mean (i) the Company's 1999 Equity Incentive Plan, as
amended or restated from time to time, (ii) the Company's 1999 Non-Qualified
Equity Incentive Plan, as amended or restated from time to time, (iii) the Ask
Jeeves International Stock Option Plan, as amended or restated from time to
time, and (iv) any successor stock incentive plans subsequently implemented by
the Company.
PRESENT VALUE means the value, determined as of the date of
the Change in Control or Business Segment Sale, of any Parachute Payment to
which you become entitled in connection with the Change in Control or Business
Segment Sale or your subsequent Authorized Resignation or Involuntary
Termination, including (without limitation) the Option Parachute Payment
attributable to your Spring 2002 Focal Review Option, the Parachute Payment
attributable to the additional benefits to which you become entitled under Part
Three of this letter agreement and the Option Parachute Payment attributable to
all of your Other Options. The Present Value of each such payment shall be
determined in accordance with the provisions of
November 14, 2002
Page 6
Code Section 280G(d)(4), utilizing a discount rate equal to one hundred twenty
percent (120%) of the applicable Federal rate in effect at the time of such
determination, compounded semi-annually to the effective date of the Change in
Control or Business Segment Sale.
TARGET BONUS means the annual incentive bonus to which you may
become eligible under the Company's Incentive Bonus Plan for a particular fiscal
year upon the Company's attainment of the performance milestones designated for
the applicable year and your attainment of the personal objectives specified for
you for that year.
TERMINATION FOR CAUSE means the Company's termination of your
employment for any of the following reasons: (i) your commission of any act of
fraud, embezzlement or dishonesty, (ii) your unauthorized use or disclosure of
any confidential information or trade secrets of the Company or any Corporate
Affiliate, (iii) any intentional misconduct by you, whether by omission or
commission, which has a materially adverse effect upon the Company's business or
affairs, (iv) your continued failure to perform the major duties, functions and
responsibilities of your position after written notice from the Company
identifying the deficiencies in your performance and a reasonable cure period of
not less than thirty (30) days or (v) a material breach of your fiduciary duties
as an officer of the Company.
PART TWO -- NORMAL SEVERANCE BENEFITS
Except as otherwise provided in Part Three of this letter
agreement, should your employment with the Company terminate by reason of an
Involuntary Termination, then you will become entitled to receive the severance
benefits provided under this Part Two, PROVIDED AND ONLY IF you execute and
deliver to the Company, at the time of your Involuntary Termination, a general
release (in form and substance reasonably satisfactory to the Company), which
becomes effective in accordance with applicable law and pursuant to which you
release the Company and its officers, directors, employees and agents from any
and all claims you may otherwise have with respect to the terms and conditions
of your employment with the Company and the termination of that employment. In
addition, your benefits under this Part Two will be subject to your compliance
with the restrictive covenants set forth in Paragraph B of Part Five. Your
benefits under this Part Two shall be in lieu of any other severance benefits to
which you might otherwise, by reason of the termination of your employment, be
entitled under any other severance plan, program or arrangement of the Company
(other than any vesting acceleration provisions in effect for your Other
Options, including, without limitation, the acceleration benefits provided under
your Other Agreements). In no event will you be entitled to benefits under both
Part Two and Part Three of this letter agreement.
The severance benefits to which you may become entitled under
this Part Two shall consist of the following:
November 14, 2002
Page 7
(a) Salary Continuation. You will receive salary
continuation payments, at your monthly rate of Base Salary, for a period of six
(6) months following your Involuntary Termination. Such salary continuation
payments shall be made at semi-monthly intervals on the 15th and last day of
each calendar month and shall be subject to the Company's collection of all
applicable income and employment withholding taxes. The salary continuation
payments under this letter agreement will be in lieu of any salary continuation
or other cash severance payment to which you might otherwise, upon your
Involuntary Termination, be entitled pursuant to the provisions of your June 18,
1999 letter agreement with the Company, and you shall no longer have any right
or entitlement to any cash severance payment under that agreement. Accordingly,
your right to severance benefits in the form of salary continuation or other
cash payments will be governed solely and exclusively by the terms of this
letter agreement, and there will be no duplication of those cash severance
payments under your June 18, 1999 letter agreement with the Company.
(b) Target Bonus. You will be entitled to fifty
percent (50%) of your annual Target Bonus for the fiscal year of the Company in
which your Involuntary Termination occurs. Payment of your Target Bonus
entitlement hereunder will be made within thirty (30) days after the date of
your Involuntary Termination, subject to the Company's collection of all
applicable income and employment withholding taxes.
(c) Health Care Coverage. Continuation of
existing coverage under the Company's group medical, dental and/or vision group
plans for you and your eligible dependents, provided and to the extent that you
and/or your eligible dependents elect to continue coverage under the Company's
medical, dental and/or vision group plans in accordance with the provisions of
the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended
("COBRA"). Such Company-paid health coverage ("Health Care Coverage") shall
continue until the earliest to occur of (i) the expiration of your salary
continuation period under subparagraph (a) above; (ii) the first date on which
you are covered under another employer's health benefit program without
exclusion for any pre-existing medical condition; or (iii) the end of your
statutory entitlement to health care coverage pursuant to COBRA. During the
Health Care Coverage period, the Company will pay the full COBRA premiums due.
After your period of Health Care Coverage hereunder ends, you and/or your
dependents may continue group medical, dental and/or vision plan coverage for
the duration (if any) of your COBRA-coverage entitlement period by paying the
full amount of premiums due in accordance with COBRA.
(d) Partial Option Acceleration. The vesting
schedule in effect for the shares of Common Stock subject to your Spring 2002
Focal Review Option will be accelerated by an additional six (6) months so that
such Option shall immediately become exercisable for the additional number of
shares for which that Option would have otherwise been exercisable under the
normal vesting schedule in effect for that Option had you actually rendered an
additional six (6) months of service with the Company prior to the date of your
Involuntary
November 14, 2002
Page 8
Termination. You will have until the earlier of (i) the expiration of the option
term or (ii) the end of the limited post-employment exercise period specified in
the applicable stock option agreement for your Spring 2002 Focal Review Option
in which to exercise such Option for any or all of the shares of Common Stock
for which that Option is vested and exercisable at the time of your Involuntary
Termination, including the shares of Common Stock which vest on an accelerated
basis in accordance with the foregoing provisions of this subparagraph (d).
(e) Outplacement Services. The Company shall
reimburse you for up to six (6) months of outplacement services which you obtain
from one or more agencies authorized by the Company to provide you with such
services.
SALE OR DISSOLUTION OF JEEVES SOLUTIONS. In the event
that the Company should cease all or substantially all of the operations of the
Jeeves Solutions business segment, or sell or otherwise spin off all or
substantially all of the assets of the Jeeves Solutions business segment, AND an
Involuntary Termination of your employment occurs within sixty (60) days after
such cessation of operations, sale or spinoff, then your severance benefits
under this Part Two will be enhanced as follows:
(i) your salary continuation period will be
extended by an additional three (3) months for a total of nine (9) months;
(ii) the Target Bonus payment to which you will
be entitled under paragraph (b) above will be increased to seventy-five percent
(75%) of your Target Bonus for the fiscal year in which your Involuntary
Termination occurs, less any portion of that Target Bonus paid to you prior to
the time of your Involuntary Termination;
(iii) the maximum period of Health Care Coverage
and reimbursement for outplacement services will be extended for an additional
three (3) months; and
(iv) your Spring 2002 Focal Review Option, to the
extent outstanding at the time of your Involuntary Termination but not otherwise
fully vested, will immediately vest and become exercisable for all of the shares
of Common Stock at the time subject to that Option and may be exercised for any
or all of those shares as fully-vested shares of Common Stock. Your Spring 2002
Focal Review Option as so accelerated shall remain exercisable until the earlier
of (i) the expiration of the option term or (ii) the end of the limited
post-employment exercise period specified in the option agreement for that
Option; and
November 14, 2002
Page 9
PART THREE - SPECIAL CHANGE IN CONTROL/BUSINESS SEGMENT SALE
BENEFITS
OPTION ACCELERATION. Your Spring 2002 Focal Review Option, to
the extent outstanding at the time of a Change in Control or Business Segment
Sale but not otherwise vested and exercisable for all the shares of Common Stock
subject to that Option will, immediately prior to the effective date of that
Change in Control or Business Segment Sale, vest and become exercisable for all
of the shares of Common Stock at the time subject to the Option and may be
exercised for any or all of those shares as fully-vested shares of Common Stock.
Your Spring 2002 Focal Review Option as so accelerated shall remain exercisable
until the earlier of (i) the expiration of the option term or (ii) the end of
the limited post-employment exercise period specified in the option agreement
for that Option. Any acceleration of your Other Options in connection with a
Change in Control or Business Segment Sale shall be governed solely by the
express terms of the applicable Plan under which each such Other Option was
granted and the applicable stock option agreement for that Other Option and the
special vesting acceleration provisions of your Other Agreements, to the extent
applicable.
AUTHORIZED RESIGNATION/INVOLUNTARY TERMINATION BENEFITS.
Should your employment with the Company terminate by reason of (i) an Authorized
Resignation or (ii) an Involuntary Termination within eighteen (18) months after
a Change in Control or Business Segment Sale, then you will become entitled to
receive the severance benefits set forth in this Part Three, PROVIDED AND ONLY
IF you execute and deliver to the Company, at the time of your Authorized
Resignation or Involuntary Termination, a general release (in form and substance
reasonably satisfactory to the Company), which becomes effective in accordance
with applicable law and pursuant to which you release the Company and its
officers, directors, employees and agents from any and all claims you may
otherwise have with respect to the terms and conditions of your employment with
the Company and the termination of that employment. However, your benefits under
this Part Three will be subject to the benefit limitations of Part Four of this
letter agreement and your compliance with all the restrictive covenants set
forth in Paragraphs A and B of Part Five. Such benefits shall be in lieu of any
other severance benefits to which you might otherwise, by reason of the
termination of your employment, be entitled under any other severance plan,
program, agreement or arrangement of the Company (other than any vesting
acceleration provisions in effect for your Other Options, including, without
limitation, the acceleration benefits provided under your Other Agreements). In
no event will you be entitled to benefits under both Part Two and Part Three of
this letter agreement.
The severance benefits to which you may become entitled
pursuant to this Part Three are as follows:
November 14, 2002
Page 10
(a) Salary Continuation. You will receive salary
continuation payments, at your monthly rate of Base Salary, for a period of
twelve (12) months following your Authorized Resignation or Involuntary
Termination. Such salary continuation payments shall be made at semi-monthly
intervals on the 15th and last day of each calendar month and shall be subject
to the Company's collection of all applicable income and employment withholding
taxes. The salary continuation payments under this letter agreement will be in
lieu of any salary continuation or other cash severance payment to which you
might otherwise, upon your Authorized Resignation or Involuntary Termination, be
entitled pursuant to the provisions of your June 18, 1999 letter agreement with
the Company, and you shall no longer have any right or entitlement to any cash
severance payment under that agreement. Accordingly, your right to severance
benefits in the form of salary continuation or other cash payments will be
governed solely and exclusively by the terms of this letter agreement, and there
will be no duplication of those cash severance payments under your June 18, 1999
letter agreement with the Company.
(b) Target Bonus. You will be entitled to one
hundred percent (100%) of your annual Target Bonus for the fiscal year of the
Company in which your Involuntary Termination or Authorized Resignation occurs.
Payment of your Target Bonus entitlement hereunder will be made within thirty
(30) days after the date of your Authorized Resignation or Involuntary
Termination, subject to the Company's collection of all applicable income and
employment withholding taxes.
(c) Health Care Coverage. Continuation of
existing coverage under the Company's group medical, dental and/or vision group
plans for you and your eligible dependents, provided and to the extent that you
and/or your eligible dependents elect to continue coverage under the Company's
medical, dental and/or vision group plans in accordance with the provisions of
the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended
("COBRA"). Such Company-paid health coverage ("Health Care Coverage") shall
continue until the earliest to occur of (i) the expiration of your salary
continuation period under subparagraph (a) above; (ii) the first date on which
you are covered under another employer's health benefit program without
exclusion for any pre-existing medical condition; or (iii) the end of your
statutory entitlement to health care coverage pursuant to COBRA. During the
Health Care Coverage period, the Company will pay the full COBRA premiums due.
After the period of Health Care Coverage hereunder ends, you and/or your
dependents may continue group medical, dental and/or vision plan coverage for
the duration (if any) of your COBRA-coverage entitlement period by paying the
full amount of premiums due in accordance with COBRA.
(d) Outplacement Services. The Company shall pay
reimburse you for up to twelve (12) months of outplacement services which you
obtain from one or more agencies authorized by the Company to provide you with
such services.
November 14, 2002
Page 11
PART FOUR -- LIMITATION ON BENEFITS
1. BENEFIT LIMIT.
The benefit limitations of this Part Four shall be applicable
in the event you receive any benefits under Part Three of this letter agreement
which constitute Parachute Payments. The Part Four limitation will not be
applicable to the benefits you receive under Part Two.
The aggregate Present Value (measured as of the Change in
Control or Business Segment Sale) of the benefits to which you become entitled
under Part Three at the time of your Authorized Resignation or Involuntary
Termination (namely the salary/target bonus continuation payments, the Option
Parachute Payment attributable to your Spring 2002 Focal Review Option, your
Health Care Coverage and the Company's reimbursement of outplacement services)
will, to the extent those benefits constitute Parachute Payments, be reduced so
as not to exceed in amount the greater of the following dollar amounts (the
"Benefit Limit"):
(a) 2.99 times your Average Compensation, less
the Present Value, measured as of the Change in Control or Business
Segment Sale, of all Other Parachute Payments to which you are
entitled, or
(b) the greatest after-tax amount payable to you
under Part Three of this letter agreement after taking into account any
excise tax imposed under Code Section 4999 on the payments and benefits
which are provided you under Part Three or which constitute Other
Parachute Payments.
2. RESOLUTION PROCEDURE. In the event there is any
disagreement between you and the Company as to whether one or more payments to
which you become entitled in connection with the Change in Control or Business
Segment Sale or your subsequent Authorized Resignation or Involuntary
Termination constitute Parachute Payments, Option Parachute Payments or Other
Parachute Payments or as to the determination of the Present Value thereof, such
dispute will be resolved as follows:
(i) In the event temporary, proposed or final
Treasury Regulations in effect at the time under Code Section 280G (or
applicable judicial decisions) specifically address the status of any
such payment or the method of valuation therefor, the characterization
afforded to such payment by the Regulations (or such decisions) will,
together with the applicable valuation methodology, be controlling.
November 14, 2002
Page 12
(ii) In the event Treasury Regulations (or
applicable judicial decisions) do not address the status of any payment
in dispute, the matter will be submitted for resolution to independent
counsel mutually acceptable to you and the Company ("Independent
Counsel"). The resolution reached by Independent Counsel will be final
and controlling; provided, however, that if in the judgment of
Independent Counsel the status of the payment in dispute can be
resolved through the obtainment of a private letter ruling from the
Internal Revenue Service, a formal and proper request for such ruling
will be prepared and submitted by Independent Counsel, and the
determination made by the Internal Revenue Service in the issued ruling
will be controlling. All expenses incurred in connection with the
retention of Independent Counsel and (if applicable) the preparation
and submission of the ruling request shall be shared equally by you and
the Company.
(iii) In the event Treasury Regulations (or
applicable judicial decisions) do not address the appropriate valuation
methodology for any payment in dispute, the Present Value thereof will,
at the Independent Counsel's election, be determined through an
independent third-party appraisal, and the expenses incurred in
obtaining such appraisal shall be shared equally by you and the
Company.
3. STATUS OF BENEFITS.
A. No salary/target bonus continuation payments will be
made to you under Part Three of this letter agreement, until the Present Value
of the Option Parachute Payment attributable to your Spring 2002 Focal Review
Option and to each of your Other Options has been determined and the status of
any payments in dispute under Paragraph 2 above has been resolved in accordance
therewith. However, you will be permitted to exercise your Options at any time
during the applicable exercise period following your Authorized Resignation or
Involuntary Termination.
B. Once the requisite determinations under Paragraph 2
have been made, then to the extent the aggregate Present Value, measured as of
the Change in Control or Business Segment Sale, of (i) the Option Parachute
Payment attributable to your Spring 2002 Focal Review Option plus (ii) the
Parachute Payment attributable to your other benefit entitlements under Part
Three of this letter agreement would, when added to the Present Value of all
your Other Parachute Payments (including the Option Parachute Payment
attributable to your Other Options), exceed the Benefit Limit, your
salary/target bonus continuation payments will be accordingly reduced. Should
such Benefit Limit still be exceeded following such reduction, then
November 14, 2002
Page 13
the number of shares which would otherwise be purchasable under the
vesting-accelerated portions of your Options (based on the amount of the Option
Parachute Payment attributable to each such Option) shall be reduced to the
extent necessary to eliminate such excess.
PART FIVE - SPECIAL RESTRICTIVE COVENANTS
For a period of one (1) year following (i) your Involuntary
Termination within eighteen (18) months after a Change in Control or Business
Segment Sale or (ii) your Authorized Resignation following a Change in Control
or Business Segment Sale, you will not render, anywhere in the United States,
any services or provide any advice or assistance to any Competing Business,
whether as an employee, consultant, partner, principal, agent, representative,
equity holder or in any other capacity, without the express prior written
consent of the Company; provided, however, that such restriction shall not apply
to any passive investment representing an interest of less than one percent (1%)
of an outstanding class of publicly-traded securities of any corporation or
other enterprise which may otherwise be designated hereunder as a Competing
Business at the time of such investment.
A COMPETING BUSINESS shall mean the six (6) companies
designated by the Company on Schedule I attached hereto. The Company may revise
Schedule I at any time, and from time to time, by adding names to, or
subtracting names from, such list; provided, however, that the Company must
comply with the following requirements in making any changes to Schedule I:
(i) absent your express written consent, any
such change to Schedule I must be made at least thirty (30) days before
termination of your employment for any reason;
(ii) any change must be made in writing and
either personally delivered to you or sent to your last known address
by certified mail, return receipt requested; and
(iii) the Company can never include more than six
(6) companies or entities on Schedule I. (Thus, if Schedule I lists six
(6) companies or entities and the Company adds one or more companies or
entities to Schedule I, then the Company must delete a like number.)
B. For a period of one (1) year following (i) your
Involuntary Termination, whether or not in connection with a Change in Control
or Business Segment Sale, or (ii) your Authorized Resignation following a Change
in Control or Business Segment Sale, you shall comply with each of the following
restrictive covenants:
November 14, 2002
Page 14
(a) you will not encourage or solicit any of the
Company's employees to leave the Company's employ for any reason or
interfere in any other manner with employment relationships at the time
existing between the Company and its employees; and
(b) you will not induce any of the Company's
suppliers, vendors, distributors, licensors or licensees to terminate
their existing business contractual relationships with the Company or
interfere in any other manner with any existing business contractual
relationship between the Company and any supplier, vendor, distributor,
licensor or licensee .
C. You acknowledge that monetary damages may not be
sufficient to compensate the Company for any economic loss which may be incurred
by reason of your breach of the restrictive covenants set forth in this Part
Five. Accordingly, in the event of any breach of those covenants, the Company
shall be entitled to obtain, in addition to any remedies available at law,
equitable relief in the form of an injunction precluding you from continuing
such breach. In addition, any salary/target bonus continuation payments, Option
acceleration, Health Care Coverage or outplacement services to which you become
entitled under Part Two of this letter agreement as severance benefits shall
immediately cease should you fail to comply with any of the restrictive
covenants set forth in Paragraph B of this Part Five. To the extent you become
entitled to any salary/target bonus continuation payments, Option acceleration,
Health Care Coverage or outplacement services pursuant to Part Three of this
letter agreement in connection with a Change in Control or Business Segment
Sale, then each of those benefits shall immediately cease should you fail to
comply with any of the restrictive covenants set forth in Paragraphs A and B of
this Part Five.
PART SIX -- MISCELLANEOUS
1. TERMINATION FOR CAUSE. Should your employment be
terminated for Cause, the Company will only be required to pay you (i) any
unpaid compensation earned for services previously rendered through the date of
such termination and (ii) any accrued but unpaid vacation benefits or sick days,
and no benefits will be payable to you under Part Two or Part Three of this
letter agreement.
2. TAX STATUS OF OPTIONS. The accelerated vesting of one
or more of your Options pursuant to the provisions of this letter agreement may
result in the loss of favorable tax treatment under Code Section 422 for all or
part of those Options which might have otherwise qualified as an incentive stock
option under Code Section 422.
November 14, 2002
Page 15
3. INDEMNIFICATION. The indemnification provisions for
Officers and Directors under the Company's ByLaws will (to the maximum extent
permitted by law) be extended to you during the period following your
Involuntary Termination, whether or not in connection with a Change in Control
or Business Segment Sale, or your Authorized Resignation following a Change in
Control or Business Segment Sale, with respect to all matters, events or
transactions occurring or effected during your period of employment with the
Company.
4. DEATH. Should you die before receipt of one or more
salary/target bonus continuation payments to which you become entitled under
this letter agreement, then those payments will be made to the executors or
administrators of your estate. Should you die before you exercise all your
outstanding Options then such Options, to the extent exercisable at the time of
your death, may be exercised within twelve (12) months after your death (or such
shorter period as may be provided under the applicable stock option agreement)
by the executors or administrators of your estate or by persons to whom the
Options are transferred pursuant to your will or in accordance with the laws of
inheritance. In no event, however, may any such Option be exercised after the
specified expiration date of the option term.
5. GENERAL CREDITOR STATUS. All cash payments to which
you become entitled hereunder will be paid, when due, from the general assets of
the Company, and no trust fund, escrow arrangement or other segregated account
will be established as a funding vehicle for such payment. Accordingly, your
right (or the right of the personal representatives or beneficiaries of your
estate) to receive such cash payments hereunder will at all times be that of a
general creditor of the Company and will have no priority over the claims of
other general creditors.
6. ARBITRATION.
To the fullest extent allowed by law, any controversy or claim
arising out of or relating to the termination of your employment with the
Company or the benefits to which you may be entitled by reason of such
termination shall be settled by binding and non-appealable arbitration conducted
in San Francisco, CA by an arbitrator selected in accordance with the procedure
set forth below. Possible disputes covered by the foregoing, include (but are
not limited to) claims pursuant to Title VII of the Civil Rights Act, the
California Fair Employment and Housing Act and comparable statutes in other
states if applicable, the Americans with Disabilities Act, the Age
Discrimination in Employment Act, and any other statutes relating to an
employee's relationship with his or her employer. You and the Company shall
initially confer and attempt to reach agreement on the individual to be
appointed as the arbitrator. If no agreement is reached, you and the Company
shall request from the Judicial Arbitration and Mediation Services ("JAMS")
office in San Francisco CA a list of five retired judges affiliated with JAMS.
You and the Company shall each alternately strike names from such list until
only one name remains, and such person shall thereby be selected as the
arbitrator. Except as
November 14, 2002
Page 16
otherwise provided for herein, such arbitration shall be conducted in conformity
with the procedures specified in the California Arbitration Act (Cal. C.C.P.
Sections 1280 et seq.). The arbitrator shall allow the discovery authorized by
California Code of Civil Procedure section 1283.05 or any other discovery
required by law in arbitration proceedings. Also, to the extent that anything in
this letter agreement conflicts with any arbitration procedures required by
applicable law, the arbitration procedures required by applicable law shall
govern. The arbitrator shall issue a written award that sets forth the essential
findings and conclusions on which the award is based. The arbitrator shall have
the authority to award any relief authorized by law in connection with the
asserted claims or disputes. The arbitrator's award shall be subject to
correction, confirmation, or vacation, as provided by any applicable law setting
forth the standard of judicial review of arbitration awards.
The Company will bear the entire cost of the arbitrator's fee
and any other type of expense or cost that you would not be required to bear if
you were free to bring the dispute or claim in court as well as any other
expense or cost that is unique to arbitration. The parties intend that this
Paragraph 6 shall be valid, binding, enforceable and irrevocable and shall
survive the termination of this letter agreement. Any final decision of the
arbitrator so chosen may be enforced by a court of competent jurisdiction. You
acknowledge and agree that you are waiving your right to a jury trial and agree
that the decision of the arbitrator shall be final and binding. If you are
determined by the arbitrator to be the prevailing party in the arbitration, then
you will be entitled to reimbursement from the Company of all the reasonable
fees (including attorney fees) and expenses you incur in connection with such
arbitration.
7. MISCELLANEOUS.
This letter agreement will be binding upon the Company, its
successors and assigns (including, without limitation, the surviving entity in
any Change in Control and the successor to the assets transferred in a Business
Segment Sale) and is to be construed and interpreted under the laws of the State
of California. Except as provided in the next sentence, this letter agreement,
together with the vesting acceleration provisions applicable to your Other
Options pursuant to your Other Agreements, supersedes all prior agreements
between you and the Company relating to the subject of severance benefits
payable upon your termination of employment, whether or not in connection with a
Change in Control, Business Segment Sale or other change in control or ownership
of the Company, and you will not be entitled to any other severance benefits
upon your termination of employment other than those that are provided in this
letter agreement and the vesting acceleration provisions applicable to your
Other Options pursuant to your Other Agreements. Notwithstanding anything to the
contrary, nothing in this letter agreement is meant to, or does, supersede,
alter or modify (i) your obligations under the Confidential Information and
Invention Assignment Agreement previously signed by you with the Company, (ii)
the terms and conditions, including (without limitation) the vesting
November 14, 2002
Page 17
acceleration and post-employment exercise provisions, currently in effect for
each of your Other Options and (iii) any remaining rights or benefits to which
you may become entitled under your January 2, 2001 Incentive Agreement with the
Company, as amended and modified from time to time, and the related December 23,
1999 letter of intent relating to equity incentives .
This letter agreement may only be amended by written
instrument signed by you and an authorized officer of the Company. Once a Change
in Control or Business Segment Sale occurs, this letter agreement may not be
terminated, whether by the Company, the successor corporation in any Change in
Control or the successor to the assets in a Business Segment Sale, at any time
prior to the expiration of the eighteen (18)-month period following the
effective date of that Change of Control or Business Segment Sale, and no
subsequent termination of this letter agreement shall adversely affect your
right to receive any benefits to which you may have previously become entitled
hereunder in connection with your Authorized Resignation or Involuntary
Termination following that Change in Control or Business Segment Sale.
If any provision of this letter agreement as applied to you or
the Company or to any circumstance should be adjudged by a court of competent
jurisdiction to be void or unenforceable for any reason, the invalidity of that
provision will in no way affect (to the maximum extent permissible by law) the
application of such provision under circumstances different from those
adjudicated by the court, the application of any other provision of this letter
agreement, or the enforceability or invalidity of this letter agreement as a
whole. Should any provision of this letter agreement become or be deemed
invalid, illegal or unenforceable in any jurisdiction by reason of the scope,
extent or duration of its coverage, then such provision will be deemed amended
to the extent necessary to conform to applicable law so as to be valid and
enforceable or, if such provision cannot be so amended without materially
altering the intention of the parties, then such provision will be stricken and
the remainder of this letter agreement will continue in full force and effect.
8. EMPLOYMENT AT WILL.
Your employment with the Company shall remain an employment at
will. Nothing in this letter agreement is intended to provide you with any right
to continue in the employ of the Company (or any Corporate Affiliate) for any
period of specific duration or interfere with or otherwise restrict in any way
your rights or the rights of the Company (or any Corporate Affiliate), which
rights are hereby expressly reserved by each, to terminate your employment at
any time for any reason or for no reason.
November 14, 2002
Page 18
Please indicate your acceptance of the foregoing by signing
the enclosed copy of this letter and returning it to the Company.
Very truly yours,
ASK JEEVES, INC.
/s/ X. Xxxxxx (Skip) Battle
By: ______________________________________________
Chief Executive Officer
Title: ______________________________________________
ACCEPTANCE
I hereby agree to all the terms and provisions of the
foregoing letter agreement governing the severance benefits to which I may
become entitled upon the termination of my employment under certain prescribed
circumstances, including (i) an involuntary termination without cause or (ii) an
involuntary termination without cause or resignation following a substantial
change in control or ownership of the Company or the specified business segment.
I further agree that the benefits to which I may become entitled under this
letter agreement supersede and replace any other severance benefits to which I
might otherwise become entitled under any other plan, program or arrangement or
agreement with the Company (other than the vesting acceleration and
post-employment exercise provisions currently in effect for my outstanding
options under the Company's stock option plans (other than my Spring 2002 Focal
Review Option grant), including, without limitation, the special vesting
provisions in effect for those options under my Other Agreements), and I hereby
fully release all the rights and entitlements I might otherwise have under those
other plans, programs, arrangements and agreements.
/s/ Xxxxxxx Xxxxxx
Signature: __________________________________________
November 14, 2002
Dated: __________________________________________
