Exhibit 10.9
BONUS AND SEVERANCE AGREEMENT
THIS BONUS AND SEVERANCE AGREEMENT (this "Agreement") is made as of the
22nd day of June, 2000 by and between TalentPoint, Inc., a Pennsylvania
corporation (the "Company") and Xxxxxx X. Xxxx ("Employee").
RECITALS
WHEREAS, in connection with a stock purchase made pursuant to a Stock
Purchase Agreement dated as of October 18, 1997 between Employee and the
Company, Employee issued a Secured Note, dated as of October 18, 1997, in the
principal amount of $239,940 payable to the Company (the "Employee Note") as
consideration for purchase of shares of common stock of the Company;
WHEREAS, in connection with the Employee Note, Employee executed that
certain Assignment of Stock Interest and Security Agreement dated as of October
18, 1997 (the "Security Agreement") pursuant to which Employee pledged all of
his stock to the Company and as security for the Employee Note;
WHEREAS, in a letter from the Company to Employee dated October 18, 1997
(the "Employment Letter"), a copy of which is attached hereto as Exhibit A, the
Company set forth the terms of the employment of Employee with the Company;
WHEREAS, in a memo dated March 29, 2000 from Xxxx Xxxxxx to Employee dated
April 6, 2000 (the "Compensation Memo"), a copy of which is attached hereto as
Exhibit B, the Company set forth the compensation, including a bonus, to be
earned by Employee for the calendar year 2000; and
WHEREAS, the parties hereto desire to enter into this Agreement (i) to
provide the terms under which the Company shall agree to cancel the Employee
Note upon the happening of certain events set forth herein; (ii) to terminate
the Compensation Memo to the extent that it requires the Company to pay Employee
$400,000 upon the Company's successful completion of an initial public offering
or upon early termination of Employee's employment with the Company prior to an
initial public offering, (iii) to set forth the manner in which Employee shall
be entitled to a bonus; and (iv) to terminate the 2000 Compensation Memo and the
Employment Letter to the extent provided herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
promises, covenants, representations and warranties made in this Agreement, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Termination of Bonus. The Company's obligation to pay
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Employee $400,000 upon the Company's successful completion of an initial public
offering or upon early termination prior to an initial public offering as set
forth in the 2000 Compensation Memo is hereby terminated and of no force or
effect.
2. Cancellation of Note Payable. The Company hereby agrees
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that it shall cancel the Employee Note on the earlier to occur of (a) the
maturity date set forth therein, provided that Employee is an employee of the
Company as of such maturity date and (b) the termination by the Company of the
Employee's employment with the Company without Cause (as hereinafter defined)
prior to the completion of an initial public offering of the Company's stock.
For purposes of this letter, "Cause" shall have the same meaning as set forth in
the Stockholders Agreement dated as of December 16, 1999 among the Company and
those persons identified therein as Stockholders (the "Stockholders Agreement").
3. Effect of Cancellation of Employee Note. Upon the
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cancellation of the Employee Note pursuant to Section 2 hereof, all amounts due
and owing under the Employee Note by Employee to the Company shall be forgiven
by the Company, the Security Agreement shall be terminated and Employee shall
have no further obligation to the Company under the Employee Note or the
Security Agreement. In addition, the Company shall pay to Employee an amount
equal to the federal and state income taxes that Employee shall recognize as a
result of the cancellation of the Employee Note, provided that the amount
payable by the Company pursuant to this Section 3 shall not exceed $160,000. Any
amount payable by the Company pursuant to this Section 3 shall be paid to
Employee in cash within fifteen (15) days after Employee has submitted his tax
returns to the Company evidencing the tax liability resulting from the
cancellation of the Employee Note.
4. Miscellaneous. This Agreement shall be governed by and
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construed in accordance with the laws of the Commonwealth of Pennsylvania. The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement. This
Agreement may be executed in one or more counterparts and by facsimile, and by
the different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which shall constitute one
and the same agreement.
5. Entire Agreement. This Agreement amends and supercedes all
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prior agreements, understandings, negotiations, whether oral or written, between
the Company and Employee with respect to the subject matter herein, including
without limitation, the 2000 Compensation Memo (with the exception of Employee's
base salary set forth therein) and the Employment Letter and shall constitute
the entire agreement between the Company and Employee with respect to the
subject matter set forth herein. Nothing in this Agreement shall effect any
obligations that Employee may have to the Company or the other shareholders of
the Company under any other agreements, documents or arrangements to which
Employee is a party, including the Stockholders Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Bonus
and Severance Agreement to be executed on the date first written above.
TalentPoint, Inc.
By: /s/ Xxxxxxxxx Xxxxxx
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Xxxxxxxxx Xxxxxx
Chief Executive Officer
/s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
