CONFIDENTIAL TREATMENT REQUESTED
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into effective as
of the 1st day of October, 2001 (the "Effective Date"), by and among Xxxxxx'x,
Inc., a Delaware corporation (the "Company") and Xxxxxxx Xxxxxx, a citizen of
the United Kingdom (the "Executive"), and the parties agree as follows:
1. RECITALS.
(a) Executive was previously employed by the Company's
Xxxxxx'x Online Europe Limited subsidiary ("Xxxxxx'x
Europe") as Director of Operations and Finance,
pursuant to an Employment Agreement dated July 3, 2000
between Executive and Xxxxxx'x Europe (the "Xxxxxx'x
Europe Employment Agreement").
(b) Following the pending closure of the Company's Xxxxxx'x
Europe subsidiary, Executive has agreed to the
termination of the Xxxxxx'x Europe Employment
Agreement. Company desires to retain Executive as its
Senior Vice President, Product Management, and
Executive desires to accept such appointment, in
accordance with the terms of this Agreement; and,
(c) Each of the Company and Executive acknowledges that
each has given and received, good, valuable, present
and sufficient consideration to support each of the
obligations of the parties under this Agreement.
2. RELATIONSHIP.
The Company hereby employs Executive to serve as the Senior Vice
President, Product Management of the Company, and Executive hereby agrees to
such employment, upon the terms and conditions set forth below.
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requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
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3. SERVICES. During the time of his employment under this
Agreement:
(a) Executive shall serve as Senior Vice President, Product
Management of the Company, and shall perform such
executive duties and responsibilities commonly incident
to such office as may be prescribed from time to time
by the Company's Chief Executive Officer and President;
and,
(b) Executive shall devote his full time, attention and
energy to the business of the Company; and
(c) Executive will relocate from London, England to Austin,
Texas in order to perform his duties hereunder. Subject
to reasonable travel requirements, the majority of the
services to be provided by Executive to the Company
shall be provided at its offices in Austin, Texas, and
Executive shall be required to maintain his primary
residence within the Austin area during the Term hereof
(as defined below), provided that the parties have
agreed to a schedule for travel between Austin, Texas
and London, England as set forth on EXHIBIT A.
4. TERM.
The term of this Agreement (the "Term") shall commence on the
Effective Date and shall continue until terminated in accordance with Section 7
of this Agreement.
5. COMPENSATION AND BENEFITS.
During the Term of Executive's employment under this Agreement:
(a) subject to the adjustments provided for below, the
Company shall pay to Executive a salary at the annual
rate of One Hundred Eighty Thousand and No/100
Dollars ($180,000.00), which salary shall be paid in
installments on the Company's customary pay dates and
shall be subject to all applicable withholding
required by state or federal law; provided, that (i)
Executive's salary shall be subject to review and
adjustment during the term of this Agreement in the
discretion of the Board, but shall not be reduced
prior to June 30, 2002, and (ii) the Board will
review Executive's compensation at least once
annually following completion of the Company's fiscal
year (currently March
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requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
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31), such review to occur no later than one hundred
twenty (120) days following the completion of the
fiscal year; and
(b) the Company shall provide to Executive, at the expense
of the Company, such benefits as the Board or the
Compensation Committee of the Board, if any, in its
sole discretion, from time to time, determines to
provide, which shall be the same benefits, including
health insurance, 401(k) and disability insurance, and
subject to the same terms and conditions (including
without limitation eligibility requirements) as
received by other senior executives of the Company; and
(c) Executive shall be eligible to receive a bonus for the
Company's fiscal year ending March 31, 2002 based on
the attainment of financial, operational and strategic
goals as set forth on EXHIBIT B attached hereto.
Executive may be eligible for such other incentive
compensation and bonuses in any calendar year as the
Board or the Compensation Committee of the Board, if
any, from time to time, determines to provide in its
sole discretion; and
(d) Executive shall receive up to fifteen (15) days of
vacation per calendar year, which shall accrue and
accumulate in accordance with the Company's vacation
policies.
(e) Executive will receive reimbursements for his
reasonable living expenses incurred in connection
with performance of his duties in Austin, Texas from
October 1, 2001 through July 31, 2001, not to exceed
a total of $5,000 per month. In addition, Executive
will receive a loan of $85,000 payable as of July 31,
2002 (the "Loan"), provided that one-twelfth (1/12)
the total of such loan shall be forgiven on the last
day of each month following, for so long as Executive
continues to serve as a full-time employee of
Xxxxxx'x, Inc. Such Loan will not bear interest and
the remaining balance due on such loan shall be
repayable in full upon demand by Xxxxxx'x, Inc. upon
Executive's resignation as an employee of Xxxxxx'x,
Inc., or Executive's termination for Cause by
Xxxxxx'x, Inc.
6. CONFIDENTIAL AND PROPRIETARY INFORMATION.
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requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
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In consideration of Executive's employment by the Company, the
Company's promise to disclose to Executive its confidential and Proprietary
Information (as defined below), the compensation now and hereafter paid to
Executive, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Executive hereby agrees with the
Company as follows:
(a) Executive recognizes and acknowledges that he may
have access to certain Proprietary Information
(defined below) of the Company and its affiliates and
that such information constitutes valuable, special
and unique property of the Company; the Executive
will not, during or after the term of his employment,
directly or indirectly divulge, disclose, transmit,
use, lecture upon, publish, or otherwise communicate
or make available any of such Proprietary Information
to any person or firm, corporation, association, or
other entity for any reason or purpose whatsoever,
except as may be required in connection with
Executive's work for the Company or if the Company's
Board of Directors expressly authorizes such in
writing.
(b) The term "Proprietary Information" shall mean trade
secrets, confidential knowledge, data, or any other
proprietary information of the Company and each of
its subsidiaries or affiliated companies. By way of
illustration but not limitation, "Proprietary
Information" includes (a) information regarding plans
for research, development, new products and services,
marketing and selling, business plans, budgets and
unpublished financial statements, licenses, prices
and costs, suppliers, customer lists and customers
that were learned or discovered by Executive during
the term of his employment with the Company; (b)
information regarding the skills and compensation of
other employees of the Company; and (c) "Inventions,"
which consist of inventions, discoveries,
developments, improvements, trade secrets, processes,
formulas, data, lists, software programs and all
other works of authorship, mask works, ideas,
concepts, know-how, designs, and techniques, relating
to the business or proposed business of the Company,
whether or not patentable, copyrightable, or
registrable under patent, copyright, or similar
statutes in the United States or elsewhere, that were
discovered, developed, created, conceived, reduced to
practice, made, learned, or written by Executive,
either alone or jointly with others, in the course of
his employment with the Company.
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requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
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(c) Executive understands, in addition, that the Company
may from time to time receive from third parties
confidential or proprietary information ("Third Party
Information") subject to a duty on the Company's part
to maintain the confidentiality of such information
and to use it only for certain limited purposes. At
all times during the term of Executive's employment
and thereafter, Executive will hold Third Party
Information in the strictest confidence and will not
disclose, discuss, transmit, use, lecture upon, or
publish any Third Party Information, except as such
disclosure, discussion, transmission, use, or
publication may be required in connection with
Executive's work for the Company, or unless the Board
of Directors of the Company expressly authorizes such
in writing.
(d) Executive acknowledges and agrees that all data,
listings, charts, drawings, records, files, drafts,
memoranda, devices, documents, specifications and
similar items, together with all copies thereof,
relating to the business of the Company and its
affiliates or their customers, and/or any other
material containing or disclosing any Proprietary
Information, Inventions, or Third Party Information
whether compiled by Executive, furnished to Executive
by the Company or its affiliates, or their customers
or clients or otherwise made accessible to Executive
or coming into his possession, while Executive is in
the employ of the Company, and copies of any such
items, shall be and remain the sole and exclusive
property of the Company or its customers or clients,
as the case may be, and none of such items shall be
removed from the Company's business premises by
Executive without the prior written consent of the
Company, except as required in the course of his
employment and all of such items shall be promptly
returned to the Company by Executive upon the
termination of his employment with the Company for
whatever reason.
(e) Executive understands and agrees that he shall not
use the proprietary or confidential information of
any former employer or any other person or entity in
connection with his employment with the Company.
During Executive's employment with the Company,
Executive will not improperly use or disclose any
confidential or proprietary information, if any, of
any former employer or any other person or entity to
whom Executive has an obligation of confidentiality,
and he will not bring onto the premises of the
Company any unpublished documents or any property
belonging to any former employer or any other person
or entity to whom Executive has an obligation of
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requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
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confidentiality unless consented to in writing by
that former employer, person, or entity.
(f) Executive acknowledges that any breach by Executive of
this Section 6 will result in irreparable harm to the
Company with respect to which no adequate remedy at law
exists. Accordingly, in addition to any other remedies
available to the Company with respect to any actual or
threatened breach of this Agreement, Executive consents
to the entry of any temporary and permanent injunctive
relief.
(g) The Company's obligations under Section 7(h)(i) of this
Agreement (if any) shall cease in the event of
Executive's material breach of his obligations under
this Section 6.
(h) Section 6 shall survive the termination of this
Agreement, the Term and/or the Executive's employment
with the Company.
7. TERMINATION.
(a) The Company shall have the right to terminate the
employment of Executive under this Agreement at any
time, and without notice, for "Cause" as hereinafter
defined. "Cause" for the purpose of this Agreement
shall mean any one or more of the following:
(i) the breach or violation by Executive of this
Agreement or the failure of Executive to
perform in any material respect any of his
obligations under this Agreement for any
reason other than death or disability which
failure or breach continues after ten (10)
days' written notice and opportunity to
cure,
(ii) gross neglect of duties by Executive,
(iii) misappropriation of Company assets or
willful breach of fiduciary duty as an
officer of the Company,
(iv) conviction of Executive of a felony, or
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requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
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(v) the willful failure or refusal of Executive
to follow a lawful and ethical direction
from the Board.
(b) The Company shall have the right to terminate the
employment of Executive under this Agreement at any
time without "Cause" upon the giving to Executive of
thirty (30) days written notice of such termination;
PROVIDED, HOWEVER, that during any such thirty (30) day
notice period, the Company may suspend, with no
reduction in pay or benefits, Executive from his duties
as set forth herein (including, without limitation,
Executive's position as a representative and agent of
the Company).
(c) Executive shall have the right to terminate his
employment under this Agreement at any time upon giving
to the Company thirty (30) days written notice of such
termination; PROVIDED, HOWEVER, that the Company may
waive all or a portion of the thirty (30) days' notice
and accelerate the effective date of such termination.
(d) The employment of Executive under this Agreement
shall terminate automatically upon the death of
Executive.
(e) For purposes of this Agreement, Disability shall mean
that the Executive is unable for a period of ninety
(90) consecutive days because of accident, illness or
disease to substantially render the services required
hereunder. In such event, the Executive's employment
hereunder can be terminated upon written notice from
the Company to the Executive subject to all applicable
law.
(f) In the event of the termination of the employment of
Executive under any of subsections (a), (c), (d) or
(e), the Company shall have no liability or obligation
to Executive under this Agreement except for
(i) unpaid salary compensation and any unused
accrued vacation through, and any unpaid
reimbursable expenses outstanding as of, the
date of termination; and
(ii) all benefits, if any, that had accrued to
the Executive through the date of
termination under the plans and programs
described in Section 5 above, or any other
applicable plans and programs in which he
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requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
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participated as an employee of the Company,
in the manner and in accordance with the
terms of such plans and programs.
(g) In the event of a termination by Company without Cause
on or prior to the Expiration Date, the Executive shall
be entitled to the following:
(i) as severance compensation, his then
applicable salary compensation (payable
monthly) for a period of six (6) months from
the date of such termination, less all
applicable withholdings required by state or
federal law (and the Executive shall be
under no obligation to mitigate his/her
damages or seek other employment) (the
"Severance Payments");
(ii) any unpaid reimbursable expenses
outstanding, and any unused accrued
vacation, as of the date of termination;
(iii) all benefits, if any, that had accrued to
the Executive through the date of
termination under the plans and programs
described in Section 5 above, or any other
applicable benefit plans and programs in
which he participated as an employee of the
Company, in the manner and in accordance
with the terms of such plans and programs.
(iv) the remaining balance due under the Loan as
of the date of such termination shall be
forgiven by the Company.
(v) the making of any Severance Payments set
forth in Section 7(g)(i) is expressly
conditioned upon the Employee signing a
general release drafted in a commercially
reasonable fashion (the "Release") of the
Company, and its respective affiliates,
successors and assigns, officers, directors,
employees, agents, attorneys and
representatives, of any claims (including
without limitation any claims of
discrimination) relating solely to
Executive's employment with the Company, or
the termination thereof, and not to any
rights that Executive may have as a
stockholder. If the Executive breaches the
Release, in addition to any other remedies
available to it, the Company may cease
making any severance payments and providing
the other benefits provided for in Section
7(g)(i), without affecting the Company's
rights under this Agreement.
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[*] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
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8. NONCOMPETITION.
In consideration of the premises hereof and in further
consideration of the Company's promise to disclose to
Executive confidential information and Proprietary Information
of the Company as set forth in Section 6, and the experience
Executive will gain throughout his employment with the
Company, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
Executive expressly agrees, confirms, represents and covenants
for the benefit of the Company, as follows:
(a) During the Non-Compete Period (as defined below), the
Executive shall not engage either directly or
indirectly in competition with the Company, or any of
its successors or affiliates, within the Applicable
Territory (defined below), and in particular, the
Executive shall not, as owner, operator, manager,
employee, consultant, independent contractor, agent,
salesperson, officer, director, shareholder,
investor, guarantor, partner or member of a joint
venture, or otherwise, directly or indirectly, engage
in any manner in the Business (defined below) within
the Applicable Territory. For purposes of this
Agreement, the term "Applicable Territory" shall mean
and include all of the United States of America,
Western Europe and Canada and any other country in
which the Company is engaged in Business during the
term hereof, and the term "Business" shall mean any
enterprise whose primary business is selling
information about companies, people and industries to
other businesses in direct competition with Company,
including but not limited to [*], as well as any new
entities (including entities that Executive may
found), that are actively engaged in the provision of
business information to users on a paid, subscription
basis; provided that in order to enforce this
non-competition restriction as against such an
additional entity, the Company shall have given
notice to Executive of the inclusion of such
additional entity to the restricted employer list at
least thirty (30) days prior to the date on which
Executive was terminated; provided that if the
existence of such new company does not become
generally known within the business community until
after Executive's termination, the Company shall have
thirty (30) days from the earlier of the date on
which it became aware of the existence of such
entity, or the date on which it should reasonably
have become aware of the existence of such entity
based on publicly available information, to inform
Executive of the application
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requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
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of this provision to such entity; and any other
business engaged in by the Company or any of its
subsidiaries or affiliates during the Term other than
any business incidental to the operations of the
Company or any of its subsidiaries taken together as
a whole;
(b) The "Noncompete Period" shall begin on the Effective
Date of this Agreement and shall continue through such
period as Executive continues to receive payments under
Section 7(g)(i) above;
(c) During the Non-Compete Period, the Executive shall not
contact or solicit or encourage any of the following to
discontinue his, her or its relationship with the
Company or any subsidiary of the Company: (i)
employees, (ii) suppliers, distributors or customers,
(iii) former employees whose employment has been
terminated for less than six (6) months, or (iv)
potential suppliers, distributors or customers
Executive had contact with or performed services for
during his employment with the Company;
(d) Notwithstanding anything set forth in this Agreement
to the contrary, it shall not be a violation of this
Agreement for the Executive to own, in the aggregate,
less than two percent (2%) of any publicly traded
entity competitive with the Company, if and only if
the Executive does not provide services or
information to that entity directly or indirectly,
and does not act as officer, director, Executive,
consultant or contractor, nor receive any economic
benefit from such competitive business other than as
a result of his ownership interest, and then only to
the extent that the other owners receive the same
economic benefit;
(e) The covenants and agreements of the Executive set forth
in this Section 8 are ancillary to an otherwise
enforceable agreement and supported by independent
valuable consideration and are necessary to enforce the
confidentiality provisions hereof, and the limitations
as to time, geographic area and scope of activity to be
restrained are reasonable and acceptable to the
Executive and do not impose any greater restraint than
is reasonably necessary to protect the goodwill and
other business interests of the Company;
(f) If, at some later date, a court of competent
jurisdiction or any arbitrator determines that any of
the provisions set forth in this Agreement do not meet
the criteria for enforceability under applicable law,
the Executive agrees that
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requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
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this Agreement may be reformed by such court or
arbitrator pursuant to, and enforced to the maximum
extent permitted by, applicable law;
(g) The Executive acknowledges that any breach by him of
this Agreement will result in irreparable harm to the
Company with respect to which no adequate remedy at law
shall exist. Accordingly, in addition to any other
remedies available to the Company with respect to any
actual or threatened breach of this Agreement, the
Executive consents to the entry of any temporary and
permanent injunctive relief, together with temporary
restraining orders ancillary to the same;
(h) The Company's obligations under Section 7(g)(i) of this
Agreement (if any) shall cease in the event of
Executive's material breach of his obligations under
this Section 8; and
(i) Section 8 shall survive the termination of this
Agreement, the Term and/or the Executive's employment
with the Company.
9. OPTIONS.
In addition to the compensation described above, Executive
will receive options to purchase 50,000 shares of the
Company's common stock at an exercise price equal to the
Company's closing stock price on the NASDAQ National Market
System ("NASDAQ NMS") on the date of the option grant (October
1, 2001), such options to be granted pursuant to the Company's
1999 Stock Incentive Plan (the "Plan") in accordance with the
Option Agreement attached hereto as EXHIBIT C. The options
granted as described above have been approved by the Company's
Board of Directors and will be governed in all respects by the
Plan, and Executive and the Company agree to act in accordance
with the terms of the Plan. Executive will also receive an
additional option to purchase 50,000 shares of the Company's
common stock following the completion of his relocation to
Austin, Texas, such options to be issued at an exercise price
equal to the Company's closing stock price on the NASDAQ
National Market System ("NASDAQ NMS") on the date of the
option grant, subject to approval by the Company's Board of
Directors.
10. NO CONFLICTING OBLIGATIONS. Executive represents and warrants to
the Company that (i) this Agreement is valid and binding upon
and enforceable against him
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requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
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in accordance with its terms, (ii) Executive is not bound by or
subject to any contractual or other obligation that would be
violated by his execution or performance of this Agreement,
including, but not limited to, any non-competition agreement
presently in effect, and (iii) Executive is not subject to any
pending or, to Executive's knowledge, threatened claim, action,
judgment, order, or investigation that could adversely affect
his ability to perform his obligations under this Agreement or
the business reputation of the Company.
11. INDEMNIFICATION.
Executive undertakes to be responsible for any income tax,
Executive's National Insurance contributions, fines, interest
and/or penalties arising in respect of payments received by
Executive under the Xxxxxx'x Europe Employment Agreement while
Executive was an employee of Xxxxxx'x Europe (the "Excess
Tax") and Executive hereby indemnifies and shall keep
indemnified the Company Xxxxxx'x for any such Excess Tax
incurred by the Company or Xxxxxx'x Europe (excluding any
interest or penalties incurred by reason of the default of the
Company or Xxxxxx'x Europe) provided that the Company notifies
Executive within 14 days of receipt of any demand from the
Inland Revenue ("IR") and agrees to provide Executive with all
reasonable cooperation in relation to any representations that
Executive may wish to make to the IR concerning such demand.
Provided Executive has not already paid the sum directly to
the Inland Revenue, Executive undertakes immediately to pay to
the Company any such Excess Tax when requested by the Company.
12. NONTRANSFERABILITY.
Neither this Agreement nor any rights or obligations hereunder
may be assigned by the Executive without the prior written
consent of the Company.
13. WAIVER.
The parties acknowledge and agree that the failure of either
party to enforce any provision of this Employment Agreement
shall not constitute a waiver of that particular provision, or
of any other provisions of this Employment Agreement.
14. NOTICE.
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requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
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Any notice required or permitted to be given hereunder shall
be in writing and delivered personally or mailed by prepaid
registered mail to the party to be notified at the following
addresses (or such other addresses as one party may notify the
other of:
(a) To the Company at:
Xxxxxx'x, Inc.
0000 Xxxxxxx Xxxx.
Xxxxxx, Xxxxx 00000
Attention: CEO
(b) To the Executive at:
Xxxxxxx Xxxxxx
[*]
[*]
Any notice mailed as aforesaid shall be deemed to have been received on
the third day following the mailing thereof.
15. GOVERNING LAW AND FORUM FOR DISPUTES.
This Agreement shall be interpreted in accordance with the
laws of the State of Texas. The parties agree that any dispute
arising hereunder shall be subject to final and binding
arbitration conducted pursuant to the rules of the American
Arbitration Association and the arbitration shall take place
in Austin, Texas; provided that following a Change of Control,
either party may, at their discretion, seek to resolve a
dispute arising hereunder through arbitration, as described
above, or by filing suit subject to the jurisdiction and venue
provisions described below. The parties further agree that all
disputes and/or proceedings which are not subject to final and
binding arbitration or to enforce the results of such
arbitration shall be submitted to the District Court of Xxxxxx
County, Texas, which shall have exclusive jurisdiction and
venue of any such dispute and/or proceeding and, also, shall
have jurisdiction to enter any and all equitable relief
ancillary to any such proceeding. The Executive acknowledges
that a material portion of the business of the Company is
conducted in Texas, and consents to the jurisdiction of, and
service of process by, such court. Executive understands and
agrees that the arbitration shall be instead of any jury trial
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requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
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and that the arbitrator's decision shall be final and binding
to the fullest extent permitted by law and enforceable by any
court having jurisdiction thereof. Each party will split the
cost of the arbitration filing and hearing fees, and the cost
of the arbitrator; each side will bear its own attorneys'
fees; that is, the arbitrator will not have authority to award
attorneys' fees UNLESS a statutory section at issue in the
dispute authorizes the award of attorneys' fees to the
prevailing party, in which case the arbitrator has authority
to make such award as permitted by the statute in question.
The only claims or disputes not covered by this paragraph are
disputes related to (i) claims for benefits under the
unemployment insurance or workers' compensation laws, and (ii)
issues affecting the validity, infringement or enforceability
of any trade secret or patent rights held or sought by the
Company or which the Company could otherwise seek and (iii)
issues pertaining to the validity, enforceability or breach of
Sections 6 or 8 of this Agreement; in the foregoing cases such
claims or disputes shall not be subject to arbitration and
will be resolved pursuant to applicable law.
16. FINAL AGREEMENT.
Both parties acknowledge and agree that this Agreement
constitutes the complete and entire agreement between the
parties with respect to the subject matter hereof; that the
parties have executed this Agreement based upon the express
terms and provisions set forth herein; that the parties have
not relied on any representations, oral or written, which are
not set forth in this Agreement; that no previous agreement,
either oral or written, shall have any effect on the terms or
provisions of this Agreement; and, that all previous
employment agreements, either oral or written, are expressly
superseded and revoked by this Agreement.
17. MODIFICATION.
Both parties acknowledge and agree that the covenants and/or
provisions of this Agreement may not be modified by any
subsequent agreement unless the modifying agreement (i) is in
writing, (ii) contains an express provision referencing this
Agreement and (iii) is signed by the Company and the
Executive.
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requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
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CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SECTIONS 200.83 AND 230.496
18. BINDING EFFECT.
This Agreement shall enure to the benefit of and be binding
upon the parties hereto and their respective heirs, executors,
administrators, successors and permitted assigns.
19. LEGAL CONSULTATION.
The Executive and the Company acknowledge and agree that both
parties have been accorded a reasonable opportunity to review
this Agreement with legal counsel prior to the execution of
this Agreement.
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[*] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
15
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SECTIONS 200.83 AND 230.496
IN WITNESS WHEREOF the parties hereto have executed this Agreement.
"COMPANY"
XXXXXX'X, INC., a Delaware corporation
By:
Name:
Title:
"EXECUTIVE"
XXXXXXX XXXXXX
SOCIAL SECURITY #: [*]
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[*] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
16
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SECTIONS 200.83 AND 230.496
EXHIBIT A
SCHEDULE FOR TRAVEL BETWEEN AUSTIN, TEXAS AND LONDON, ENGLAND
DATE: LOCATION:
[*] [*]
The foregoing schedule is subject to reasonable adjustments, as mutually
agreed between the parties.
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[*] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
17
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SECTIONS 200.83 AND 230.496
EXHIBIT B
Name: Xxxxxxx Xxxxxx
Position SVP Product Management
$180,000 (effective Oct. 1,
Annual Salary 2001)
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GOOD SUPERIOR EXCELLENT
BONUS % 15% 30% 50%
TOTAL BONUS DOLLARS AVAILABLE AT LEVEL $13,500 $27,000 $45,000
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[*]
WEIGHTING
GOALS FY 02 FACTOR
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[*] [*] 30% [*] [*] [*]
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[*] [*] 30% [*] [*] [*]
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Specific Operational Goals 40% CEO evaluation CEO evaluation CEO evaluation
(as referenced below)
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* Assumes no change in FASB rules regarding amortization of goodwill. Any reduction in goodwill expense required by FASB is added
to this number.
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[*] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
18
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SECTIONS 200.83 AND 230.496
Assumptions
1. Bonus Plan applies to salary base for October 1, 2001 through March 31,
2002. Bonus for April 1, 2001 through September 30, 2001 will be based
on HEU bonus plan and salary base.
2. [*]
3. [*]
4. [*]
5. This plan applies to the full FY 2002, and the executive must be in
place at the conclusion of FY 2002 (March 31, 2002) to collect any
benefits under it, except in the event of termination for any reason
following a change in control in which case bonus will be paid pro rata
following fiscal year end. Except in the case of a change of control,
this restriction will apply regardless of the cause of executive's
termination of employment, subject to the provisions of executive's
Employment Agreement with the Company.
6. The determination of whether non-quantitative targets have been made
and if so, whether they were at the Good, Superior or Excellent levels
shall be made by the CEO.
7. All payments to Executives under this plan must be approved by the
Board in advance, following a presentation by CEO.
Operational Goals
[*]
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[*] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
19
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SECTIONS 200.83 AND 230.496
EXHIBIT C
[LOGO]
XXXXXX'X, INC.
NOTICE OF GRANT OF STOCK OPTION
-------------------------------
Notice is hereby given of the following option grant (the
"Option") to purchase shares of the Common Stock of Xxxxxx'x, Inc. (the
"Corporation"):
OPTIONEE: Xxxxxxx X. X. Xxxxxx
XXXXX DATE: October 1, 2001
VESTING COMMENCEMENT DATE: October 1, 2002
EXERCISE PRICE: $2.25
NUMBER OF OPTION SHARES: 50,000
EXPIRATION DATE: October 1, 2011
TYPE OF OPTION: Incentive Options to the extent of limitations
imposed by Internal Revenue Code Section 422. In the event
that all or any portion of the Option does not qualify under
Section 422, such portion shall be classified as a
Non-Qualified Stock Option.
EXERCISE SCHEDULE: The Option shall become exercisable with
respect to twenty five percent (25%) of the Option Shares upon Optionee's
completion of each year of Service over the four (4) year period measured from
the Vesting Commencement Date. In no event shall the Option become exercisable
for any additional Option Shares after Optionee's cessation of Service.
Optionee understands and agrees that the Option is granted
subject to and in accordance with the terms of the Xxxxxx'x, Inc. 1999 Stock
Incentive Plan (the "Plan"). Optionee further agrees to be bound by the terms of
the Plan and the terms of the Option as set forth in the
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[*] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
20
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SECTIONS 200.83 AND 230.496
Stock Option Agreement and any Addenda to such Stock Option Agreement attached
hereto as Exhibit A. A copy of the Plan is available upon request made to the
Corporate Secretary at the Corporation's principal offices.
NO EMPLOYMENT OR SERVICE CONTRACT. Nothing in this Notice or
in the attached Stock Option Agreement or in the Plan shall confer upon Optionee
any right to continue in Service for any period of specific duration or
interfere with or otherwise restrict in any way the rights of the Corporation
(or any Parent or Subsidiary employing or retaining Optionee) or of Optionee,
which rights are hereby expressly reserved by each, to terminate Optionee's
Service at any time for any reason, with or without cause.
DEFINITIONS. All capitalized terms in this Notice shall have
the meaning assigned to them in this Notice or in the attached Stock Option
Agreement.
DATED: October 1, 2001
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[*] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
21
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SECTIONS 200.83 AND 230.496
XXXXXX'X, INC.
By:
----------------------------------------
Title:
-------------------------------------------
-------------------------------------------
Xxxxxxx X.X. Secker
Address:
---------------------------------
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ATTACHMENTS
Exhibit A - Stock Option Agreement
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[*] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
22
