Exhibit 10.4.2
August 22, 1997
Xxxxxxx X. Xxxxxxxxx
National Investors Council
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Dear Xxxx:
With the consent of the Board of Directors of Newriders, Inc. (the
"Company"), by this letter ("Letter Agreement"), I am formalizing the terms
and conditions pursuant to which you have agreed to become a member of the
Board and the Executive Vice President of Finance and Administration of the
Company.
We have agreed on the following terms and conditions:
1. Position: Director and Executive Vice President of Finance and
Administration.
2. Term: Effective as of July 8, 1997 (the "Effective Date") and
continuing until thirty days notice given by either party to the other. The
foregoing term of this agreement shall be subject to earlier termination by
the Company for "cause" (as defined below) and by you for "good reason" (as
defined below).
3. Base Salary: $150,000 annually, with the salary being initially
deferred until, in the judgment of the Executive Vice President of Finance and
Administration, the Company has sufficient cash flow to begin to pay your
salary and all other executive salaries that have been deferred, on a pro rata
basis. A list of the other deferred executive salaries as of the date hereof
and projected into the future has been provided to you.
0000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000 * Xxxxxx, XX 00000
* (000) 000-0000 FAX: (000) 000-0000
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August 20, 1997
Page 2
4. Expense Reimbursement: While serving as Executive V.P. of Finance and
Administration you will be entitled to reimbursement on a current basis for
specific business expenses reasonably incurred on behalf of the Company.
5. Lack of Exclusivity: The Company recognizes that you are presently
involved in certain other business activities which you are in the process of
concluding in an orderly manner. The Company will expect you to devote a
sufficient percentage of your productive time as necessary to properly attend
to the Company's business during this interim period and full time thereafter,
subject to a reasonable amount of time devoted to acting as Chairman of the
Board of National Investor's Council.
6. Benefits: You shall be entitled to the same benefits package as and
when it becomes available to other executive officers.
7. Stock Options: Upon your execution of this Letter Agreement, the
Company agrees to issue to you options to purchase 500,000 shares of
Newriders, Inc. common stock for an option price of $2.50 per share (the
"Options"). The Options will vest in five increments of 100,000 shares each,
upon the date on which the Company's total market capitalization reaches the
following levels:
Total Market Capitalization Option Increment
--------------------------- ----------------
$ 150,000,000 100,000
300,000,000 100,000
500,000,000 100,000
750,000,000 100,000
1,000,000,000 100,000
The Options shall be subject to the following additional terms:
a. Any vested Options will be exercisable by you (or your successors
by the laws of descent and distribution) in whole or in part for a period of
ten (10) years following the date on which they vest, whether or not you
remain as an officer or director of the Company.
b. Provided that you do not voluntarily terminate your position and
are not terminated for cause, for a period of three years from the effective
date of this Agreement, then whether or not you are still serving as Executive
Vice President of Finance and Administration of the Company, the Options will
vest in you upon attainment by the Company of the above stated market
capitalization levels. For example, if four years from the date hereof, having
completed three years as Executive V.P. of
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August 20, 1997
Page 3
Finance and Administration, the Company achieves a total market capitalization
of $500,000,000 your option to purchase an additional 100,000 shares (in
addition to 200,000 shares which previously would have vested) will become
fully vested and you will have ten years from that date within which to
exercise your option. If, prior to completion of three years of service as
Executive V.P. of Finance and Administration, you voluntarily terminate
(without "good reason") your position as Executive V.P. of Finance and
Administration or are terminated by the Company for "cause", any unvested
Options shall thereupon terminate and be of no further force or effect.
c. Unless prohibited by applicable securities laws, the Options
shall become subject to registration on the initial form S-8 filed by the
Company.
d. In the event the Company becomes a party to a "change in control
agreement" (as defined below), all of the unvested Options shall become
immediately vested; upon such vesting, the Company shall, at its election,
either (i) permit you to purchase any or all of the shares covered by the
Options concurrent with the consummation of the change in control agreement in
which you will be entitled to participate, (ii) purchase or cause the purchase
of the Options for an amount equal to the difference obtained by subtracting
the exercise price of the Options from the fair market value of the shares
which are the subject of the Options on the date of closing of such change in
control agreement, or (iii) if the other party to the change in control
agreement is a public corporation with a market capitalization of at least $1
billion, arrange for equivalent fully vested options (without restrictions on
the resale of shares obtained upon exercise of such Options) to be issued by
the other party to the change in control agreement. A "change in control
agreement" refers to an agreement which provides for a merger or consolidation
to which the Company is a party and following the consummation of which the
shareholders of the Company immediately prior to such transaction do not own a
majority of the outstanding shares of common stock of the Company, or any
other sale of the majority of the outstanding shares of the common stock of
the Company, or the transfer of all or substantially all of the assets of the
Company, or the Company's liquidation or dissolution. Consummation of the
transaction under discussion with Paisano Publications will not constitute a
change in control.
e. In addition to any other methods of exercise which may be
provided for generally in any stock option plan the Company may adopt and
subject to the foregoing, you will be entitled to exercise the Options in
whole or in part by either (i) using existing shares of the Company's common
stock, meaning that you may deliver common shares of the Company already owned
by you with an aggregate fair market value on
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August 20, 1997
Page 4
the date of exercise equal to the purchase price and/or (ii) effecting a
"cashless exercise," meaning that you may surrender the Options and receive a
number of shares of common stock equal to the full number of shares of common
stock subject to the surrendered Options less that number of shares having an
aggregate fair market value on the date of exercise equal to the purchase
price.
f. The Options shall be subject to standard anti-dilution provisions
which shall be the same as those contained in the Company's stock option plan
when adopted.
For purposes of this Letter Agreement, "good reason" shall mean any of
the following:
(1) Your failure to be re-elected to the Board of Directors or
removal from the Board of Directors by action of the shareholders of the
Company.
(2) Failure of the Company to implement and follow agreed upon
policies of corporate governance.
(3) Failure of the Company to make substantial progress in
implementing its business plan as set forth in the Form 10 filed with the
Securities and Exchange Commission or as otherwise modified by the Board of
Directors of the Company.
(4) There is internal discord among the members of the Board
of Directors and policies material to the conduct of business of the Company
are adopted by the Board which are opposed by you.
(5) There is a material adverse change in the business or
financial condition of the Company or its business prospects.
(6) The Company is sued or otherwise engages in business
activity which in your judgment exposes members of the Board of Directors to
personal liability not covered by insurance.
(7) The Company shall engage in activities in violation of
law.
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August 20, 1997
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(8) The Company shall fail to maintain in effect directors and
officers liability insurance in an amount of $20,000,000 (subject to a
retention of $250,000), and subject to other terms and conditions and
exclusions acceptable by you.
(9) The Company shall breach the terms of this Letter
Agreement.
For purposes of this Letter Agreement, "cause" shall mean:
(1) Your conviction of, or entry of a plea of guilty or nolo
contendere for any felony crime involving moral turpitude.
(2) Your commission of any act of dishonesty or fraud which is
materially detrimental to the Company's business or goodwill.
(3) Your willful failure or refusal to perform your duties as
required by this Letter Agreement.
Any dispute which may arise with respect to this Letter Agreement shall
be resolved by arbitration to be conducted in Orange County, California
pursuant to the provisions of California Civil Code of Procedure 1280 et seq.
The prevailing party in any such proceeding shall be entitled to recover its
attorneys fees, in addition to its costs in the proceeding.
Very truly yours,
/s/ Xxxx Xxxxxx
-------------------
XXXX XXXXXX
Chairman and CEO
Newriders, Inc.
AGREED AND ACCEPTED THIS 26 DAY OF AUGUST, 1997:
/s/ Xxxxxxx X. Xxxxxxxxx
-------------------------
XXXXXXX X. XXXXXXXXX
