EXHIBIT 10.26
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This agreement is entered into as of April 26, 2004, by and between
Xxxxxxx X. Xxxxxx (the "Employee") and PlanetOut Partners, Inc., a Delaware
corporation (the "Company").
1. Duties and Scope of Employment.
a) Position. For the term of his employment under this Agreement
("Employment"), the Company agrees to employ the Employee in the
position of Chief Financial Officer and Executive Vice President, or
in such other equivalent or higher-level position as the Company and
the Employee may mutually agree. The Employee shall report to the
Company's senior-most executive officer or such other officer as the
Company and Employee may subsequently agree. Initially, it is agreed
that Employee shall report to the Company's Chief Executive Officer.
b) Objectives and Duties.
i) The Employee's primary objectives shall be:
(1) Helping to increase the value of the Company; thereby,
increasing the value of the Company to its shareholders;
and
(2) Devising means by which the shareholders, investors,
employees, and community can benefit from this increase
in value.
ii) The Employee's duties shall include, but not be limited to:
(1) Finance and Accounting. The Employee shall have ultimate
responsibility for the following finance and accounting
activities domestically and internationally:
(a) The Employee shall serve as Treasurer for the
Company at the discretion of Company's Board of
Directors (the "Board") and the senior-most
executive for the Company and upon Board approval.
(b) Overall accountability and responsibility for the
leadership, management, development, control, and
continuous improvement of the Company's treasury
and finances, including, among others, financial
management, financial reporting, financial
transactions, and risk assessment and management
in all areas of the business;
(c) Overall accountability and responsibility for the
Company's relationships and communication with
accountants, auditors, financial institutions,
financial and business analysts, and financial
partners;
(d) Overall accountability and responsibility for
measurements, SWOT analysis, and results
forecasting related to mergers and acquisitions,
joint ventures, partnerships, strategic alliances,
other business development transactions, and other
strategic Company matters including the assessment
and analysis of the Company's ability to reduce
risk and increase the potential for success upon
the execution of such matters; and
(e) Overall accountability and responsibility for
financial planning, forecasting, and budgeting
related to all areas of the business.
(2) Legal. The Employee shall have primary managing
responsibility for the following legal activities
domestically and internationally:
(a) Overall accountability and responsibility for the
leadership, management, development, control, and
continuous improvement of the Company's legal
functions, including, among others, management of
all legal resources (internal and external) and
legal considerations of the Company;
(b) Overall accountability and responsibility for the
Company's relationships and communication with
legal and related advisors; and
(c) Overall accountability and responsibility for
legal plans, forecasts, and budgets.
(d) In the event that the Company hires a full- or
part-time general counsel, such individual shall
report to the Employee.
(3) Risk Management. The Employee shall have ultimate
responsibility for all areas of risk management
including planning, assessment, controls, disaster
recovery and cost-benefit studies related to risk for
the Company.
(4) Human Resources. The Employee shall have primary
managing responsibility for all human resource
activities domestically and internationally.
(6) Business Development. The Employee shall have primary
managing responsibility for the Company's corporate and
business development activities domestically and
internationally by managing the financial, accounting,
legal, human resources, and related functions for all
mergers, acquisitions, joint ventures, partnerships,
strategic alliances, and other business development
transactions.
(7) Investor Relations. The Employee shall have primary
managing responsibility for all investor and shareholder
relations of the Company domestically and
internationally.
(8) Facilities Management. The Employee shall have primary
managing responsibility for overseeing and managing all
facilities (owned or leased) of the Company.
(9) Managing, meeting and exceeding user expectations and
educating direct and indirect reports to do so as well,
such expectations as specified in advance between the
Employee and the Company.
(10) As a senior leader, with integrity, wisdom and prudence,
interacting with, communicating to, helping to educate
and to develop upline management, peer management, and
non-reporting staff throughout the Company to the
benefit of all Company individuals and the business as a
whole.
(11) Representing the Company and its individuals in formal
and informal communications and presentations, on
panels, with the press as pre-approved, in the field,
with clients and other business partners, and in all
other business-related circumstances, with the highest
attainable form of professionalism, integrity, honesty,
and sincerity in the desire to serve, provide service,
and relate information, and in all other forms of
communication and presentation.
(12) Other. The Employee also shall perform other services
appropriate to the Employee's position that may
reasonably be assigned by the Company. Duties listed
above may be modified from time to time upon the mutual
consent of both Company and Employee, except that such
duties may be modified without mutual consent by the
Company's senior most officer in the case of Cause, or
during a cure period related to Cause, as defined in
7(d) herein, or as occasioned by the natural course of
the business, provided, that the Employee still reports
to the senior most executive officer of the Company.
c) Obligations to the Company. During his Employment, the
Employee shall devote his full business efforts and time to
the Company. During his Employment, the Employee may engage in
lawful conduct occurring during nonworking hours away from the
Company's premises; provided however, that lawful conduct does
not include without limitation conduct that constitutes a
breach of fiduciary duty to the Company, breach of the duty of
loyalty to the Company, breach of the Proprietary Information
and Inventions Agreement with the Company, breach of this
Agreement, engagement in a competitive activity or assisting
any person or entity in competing with the Company, in
preparing to compete with the Company or in hiring any
employees or consultants of the Company. In the event that the
Employee engages in lawful conduct in business activities
other than the Company's business, or in charitable and
political activities not directly associated with the Company
during nonworking hours away from the Company's premises, the
Employee must in writing notify the Company of the Employee's
activity and purpose of activity, name of employer (if any) or
organization, position with respect to the activity or the
entity and any potential conflict that may arise from that
activity, including and the number of hours spent engaging in
such activity that may or will detract from the
business of the Company. The Employee shall comply with the
Company's policies and rules, as they may be in effect from
time to time during his Employment.
e) No Conflicting Obligations. The Employee represents and
warrants to the Company that he is under no obligations or
commitments, whether contractual or otherwise, that are
inconsistent with his obligations under this Agreement. The
Employee represents and warrants that he will not use or
disclose, in connection with his employment by the Company,
any trade secrets or other proprietary information or
intellectual property in which the Employee or any other
person, other than the Company, has any right, title or
interest and that his employment by the Company as
contemplated by this Agreement will not infringe or violate
the rights of any other person. The Employee agrees to sign
the current versions and any future versions of the Company's
various agreements related to confidentiality, inventions and
related intellectual matters.
f) Commencement Date and Location. The Employee officially
commenced work for the Company (or a predecessor company) on
August 7, 2000 ("Commencement Date") and shall be located in
the San Francisco office of the Company.
2. Cash and Incentive Compensation.
a) Salary. The Company shall pay the Employee as compensation for
his services a base salary at a gross annualized rate of
$225,000. Such salary shall be payable in accordance with the
Company's standard payroll procedures. (The annual
compensation specified in this Subsection (a), together with
any increases in such compensation that the Company may grant
from time to time, is referred to in this Agreement as "Base
Compensation.") The Employee will be entitled to receive an
evaluation of performance on or about each successive annual
anniversary of the Commencement Date. All future changes to
compensation will be based on the results of evaluations of
the Employee's performance, whether such evaluations are
performed annually, or more frequently as may be initiated by
Employee's senior management.
b) Incentive Bonuses.
i) The Employee shall be eligible to be considered for an
annual incentive bonus with a target amount equal to a
minimum of 30% of his Base Compensation ("Incentive
Bonus"). The Incentive Bonus (if any) shall be awarded
based on objective or subjective criteria established in
advance by the senior-most executive officer of the
Company, and approved by the Board. The determinations
of the Board with respect to the Incentive Bonus shall
be final and binding.
ii) 2004 Bonus. In addition to any incentive bonus which
may be paid under paragraph 2(b),the Employee shall be
paid a one time bonus of $25,000 (or such higher amount
as the Board of Directors may determine in its sole
discretion) for the employee's work in 2004. The timing
of the payment of this bonus will be at the discretion
of the Board of Directors, in consultation with the
Chief Executive Officer.
iii) Performance Bonus Options. Subject to the approval of
the Board, the Company may grant the Employee stock
options, from time-to-time, covering the shares of the
Company's equity securities. The terms of such options
shall be as determined by the Board at the time of any
such grant. Such terms shall be provided in writing to
the Employee at the time of any such grant.
3. Vacation and Employee Benefits. During his Employment, the Employee shall
be eligible for paid vacations in accordance with the Company's standard
policy for similarly situated employees, as it may be amended from time to
time. During his Employment, the Employee shall be eligible to participate
in any employee benefit plans maintained by the Company for similarly
situated employees, subject in each case to the generally applicable terms
and conditions of the plan in question and to the determinations of any
person or committee administering such plan based on the terms of the plan
and Company policy. At Employee's option, Employee shall be eligible to
use personal life and disability insurance to cover the approximate
difference between the company plan's maximum and his Base Compensation up
to a cost of $150 per month for disability insurance and $100 per month
for life insurance and to present the Company receipts for such insurance
for reimbursement by the Company.
4. Business Expenses. During his Employment, the Employee shall be authorized
to incur necessary and reasonable travel, entertainment and other business
expenses in connection with his duties hereunder. The Company shall
reimburse the Employee for such expenses upon presentation of an itemized
account and appropriate supporting documentation, all in accordance with
the Company's generally applicable policies.
5. Term of Employment.
a) Basic Rule. The Company agrees to continue the Employee's
Employment, and the Employee agrees to remain in Employment with the
Company, from the commencement date set forth in Section 1 (f) until
the date when the Employee's Employment terminates pursuant to
Subsection (b) or (c) below. The Employee's Employment with the
Company shall be "at will," meaning that either the Employee or the
Company shall be entitled to terminate the Employee's employment at
any time and for any reason, with or without Cause. Any contrary
representations that may have been made to the Employee shall be
superseded by this Agreement. This Agreement shall constitute the
full and complete agreement between the Employee and the Company on
the "at will" nature of the Employee's Employment, which may only be
changed in an express written agreement signed by the Employee and a
duly authorized officer of the Company (other than the Employee).
b) Termination. The Company may terminate the Employee's Employment at
any time and for any reason (or no reason), and with or without
Cause, by giving the Employee notice in writing. The Employee may
terminate his Employment by giving the Company thirty (30) days
advance notice in writing. The Employee's Employment shall terminate
automatically in the event of his death or Permanent Disability (as
defined below).
c) Rights Upon Termination. Except as expressly provided in Section 6,
upon the termination of the Employee's Employment pursuant to this
Section 5, the Employee shall only be entitled to the compensation,
benefits and reimbursements described in Sections 2, 3 and 4 for the
period preceding the effective date of the termination, payment of
which shall fully discharge all responsibilities of the Company to
the Employee.
d) Termination of Agreement. This Agreement shall terminate when all
obligations of the parties hereunder have been satisfied. The
termination of this Agreement shall not limit or otherwise affect
any of the Employee's obligations under Sections 6(a), 7, 8, and 9.
6. Termination Benefits.
a) General Release. Any other provision of this Agreement
notwithstanding, the Employee shall not be entitled to the
compensation and/or benefits in subsections (b) and (c) below unless
the Employee (i) has executed a reasonable general release (in a
form prescribed by the Company) of all known and unknown claims that
he may then have against the Company or persons affiliated with the
Company and (ii) has agreed not to prosecute any legal action or
other proceeding based upon any of such claims.
b) Severance Pay.
(i) If, during the term of this Agreement, the Company terminates
the Employee's Employment (including through "Constructive
Termination" as defined below) for any reason other than Cause
or Permanent Disability, then the Company shall pay the
Employee his Base Compensation for a period of twelve (12)
months following the termination of his Employment (the "Base
Continuation Period") and shall accelerate the vesting of any
outstanding stock options such that the Employee will become
vested in an additional number of shares subject to such stock
options, as if the Employee provided another nine (9) months
of service with the Company. Such Base Compensation shall be
paid at the rate in effect at the time of the termination of
Employment and in accordance with the Company's standard
payroll procedures
(ii) If, within sixteen (16) months following a Change of Control
(as defined in Part 2(e) of the Planetout Partners, Inc.
Performance and Equity Participation (PEP) Plan as adopted on
January 22, 2002 (the "PEP Plan")) and the Company terminates
the Employee's Employment (including through "Constructive
Termination" as defined below) for any reason other than Cause
or Permanent Disability, then, subject to the "Parachute
Payment" provisions of paragraph 5(d) of the PEP Plan (as if
such provisions were a full part of this agreement, even if
such plan is not in effect at the time of a Change of
Control), the Company shall pay the Employee his Base
Compensation for a period of eighteen (18) months following
the termination of his Employment (the "Change of Control
Continuation Period"), and shall accelerate the vesting of any
outstanding stock options such that the Employee will become
vested in an additional number of shares subject to such stock
options, as if the Employee
provided the greater of either (A) another nine (9) months of
service with the Company or (B) 50% of the remaining unvested
shares. Such Base Compensation shall be paid at the rate in
effect at the time of the termination of Employment and in
accordance with the Company's standard payroll procedures.
ii) Definition of "Constructive Termination." For all purposes
under this Agreement "Constructive Termination" shall mean the
Employee's resignation within sixty (60) days following (i) a
material reduction or change in title, job duties, authority,
responsibilities or job requirements inconsistent with
Employee's position with the Company to which the Employee has
not agreed to in writing; (ii) any reduction of Employee's
Base Compensation to which the Employee has not agreed to in
writing; (iii) any elimination of a material benefit provided
to the Employee pursuant to employment with the Company to
which the Employee has not agreed to in writing unless such
material benefit is being eliminated for all Employees in
comparable positions or Employee's class due to a reasonable
business need or condition; (iv) a relocation of place of
employment more than sixty (60) miles from San Francisco,
California; (v) the Company's failure to cure any material
breach by it of the terms of this letter agreement within
thirty (30) days following written notice from the Employee to
the Company's Board of Directors; or (vi) the actual
occurrence of any "constructive termination" of the Employee
by the Company under California law. The provisions of
subparts (i) through (iii) of this subparagraph b(iii) shall
not apply if any "cause" as defined in subparagraph (d) has
occurred, and, if curable pursuant to subparagraph (d), has
not been cured.Definition of "Permanent Disability." For all
purposes under this Agreement, "Permanent Disability" shall
mean that the Employee, at the time notice is given, has
failed to perform his duties under this Agreement for a period
of not less than 90 consecutive days (or such longer period as
may be required by law) as the result of his incapacity due to
physical or mental injury, disability or illness.
c) Health Insurance. If Subsection (b) above applies, and if the
Employee elects to continue his health insurance coverage under the
Consolidated Omnibus Budget Reconciliation Act ("COBRA") following
the termination of his Employment, then the Company shall pay the
Employee's monthly premium under COBRA until the earliest of (i) the
close of the Base Continuation Period or Change of Control
Continuation Period, as applicable, (ii) the expiration of the
Employee's continuation coverage under COBRA or (iii) the date when
the Employee accepts new employment (including self-employment) that
offers health insurance coverage.
d) Definition of "Cause." For all purposes under this Agreement,
"Cause" shall include but not be limited to:
i) Any material breach of this Agreement, the Proprietary
Information and Inventions Agreement between the Employee and
the Company, or any other written agreement between the
Employee and the Company, without
Employee's satisfactory and reasonable cure, if curable,
within thirty (30) days of Employee's receipt of written
notice of such failure to comply, such notice by Company to
Employee shall specify the material breache(s) and shall
delineate performance improvements, modifications or action
items necessary for Employee to effect a satisfactory and
reasonable cure;
ii) Any material failure to comply with the Company's written
policies or rules, as they may be in effect from time to time
during the Employee's Employment, which adversely impacts any
aspect of the business or personnel of the Company without
Employee's satisfactory and reasonable cure within thirty (30)
days of Employee's receipt of written notice of such failure
to comply, such notice by Company to Employee shall specify
the material failure(s) to comply and delineate performance
improvements, modifications or action items necessary for
Employee to effect a satisfactory and reasonable cure;
iii) The Employee's conviction of, or a plea of "guilty" or "no
contest" to, a felony under the laws of the United States or
any state thereof;
iv) The Employee's threats or acts of violence or unlawful
harassment directed at any present, former or prospective
employee, independent contractor, vendor, customer or business
partner of the Company or directed to the Company;
v) The Employee's sale, possession or use of illegal drugs on the
premises of the Company or of a customer or business partner
of the Company or when engaged in the business of the Company
at Company events, Company sponsored events and at any other
events, premises and venues at which the Employee is engaged
in the business of the Company;
vi) The Employee's misappropriation of the assets of the Company
or other acts of dishonesty;
vii) The Employee's illegal or unethical business practices;
viii) The Employee's gross misconduct or gross negligence in the
performance of duties assigned to the Employee under this
Agreement; or
ix) The Employee's failure to perform reasonable duties assigned
to the Employee under this Agreement without Employee's
satisfactory and reasonable cure within sixty (60) days of
Employee's receipt of written notice of such failure to
perform, such notice by Company to Employee shall specify the
failure(s) to perform and delineate performance improvements,
modifications or action items necessary for Employee to effect
a satisfactory and reasonable cure.
7. Non-Solicitation and Non-Disclosure.
a) Non-Solicitation. During the period commencing on the date of this
Agreement and continuing until the first anniversary of the date
when the Employee's Employment terminated for any reason the
Employee shall not directly or indirectly, personally or through
others, solicit or attempt to solicit (on the Employee's own behalf
or on behalf of any other person or entity) the employment of any
employee of the Company or any of the Company's affiliates. The
Employee further agrees that, during the Continuation Period
described in Section 7(b) above, he will not directly solicit the
business of any customer of the Company or any of the Company's
affiliates with whom the Employee had contact during his Employment.
b) Non-Disclosure. The Employee has entered into a Proprietary
Information and Inventions Agreement with the Company, which is
incorporated herein by reference.
8. Successors.
a) Company's Successors. This Agreement shall be binding upon any
successor (whether direct or indirect and whether by purchase,
lease, merger, consolidation, liquidation or otherwise) to all or
substantially all of the Company's business and/or assets. For all
purposes under this Agreement, the term "Company" shall include any
successor to the Company's business and/or assets which becomes
bound by this Agreement.
b) Employee's Successors. This Agreement and all rights of the Employee
hereunder shall inure to the benefit of, and be enforceable by, the
Employee's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and
legatees.
9. Miscellaneous Provisions.
a) Notice. Notices and all other communications contemplated by this
Agreement shall be in writing and shall be deemed to have been duly
given when personally delivered or when mailed by U.S. registered or
certified mail, return receipt requested and postage prepaid. In the
case of the Employee, mailed notices shall be addressed to him at
the home address which he most recently communicated to the Company
in writing. In the case of the Company, mailed notices shall be
addressed to its corporate headquarters, and all notices shall be
directed to the attention of its Secretary.
b) Modifications and Waivers. No provision of this Agreement shall be
modified, waived or discharged unless the modification, waiver or
discharge is agreed to in writing and signed by the Employee and by
an authorized officer of the Company (other than the Employee). No
waiver by either party of any breach of, or of compliance with, any
condition or provision of this Agreement by the other party shall be
considered a waiver of any other condition or provision or of the
same condition or provision at another time.
c) Whole Agreement. This Agreement supersedes any previous offer
letters and employment agreements including, among any others, the
Employment Agreement dated July 31, 2000 as well as any amendments
or modifications thereto. No other agreements, representations or
understandings (whether oral or written and whether express or
implied), which are not expressly set forth in this Agreement have
been made or entered into by either party with respect to the
subject matter hereof. This Agreement, the Proprietary Information
and Inventions Agreement, the Company's 2001 Equity Incentive Plan,
the applicable Stock Option Agreements evidencing Stock Options
granted to you by the Company, any grants made to you of the
Company's Series B Preferred Stock, and the Company's Performance
and Equity Participation (PEP) Plan previously entered into by
Employee contain the entire understanding of the parties with
respect to the subject matter hereof.
d) Withholding Taxes. All payments made under this Agreement shall be
subject to reduction to reflect taxes or other charges required to
be withheld by law.
e) Choice of Law and Severability. This Agreement is executed by the
parties in the State of California and shall be interpreted in
accordance with the laws of such State (without effect to conflicts
of law principles). If any provision of this Agreement becomes or is
deemed invalid, illegal or unenforceable in any jurisdiction by
reason of the scope, extent or duration of its coverage, then such
provision shall 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 shall be stricken and
the remainder of this Agreement shall continue in full force and
effect. Should there ever occur any conflict between any provision
contained in this Agreement and any present or future statue, law,
ordinance or regulation contrary to which the parties have no legal
right to contract, then the latter shall prevail but the provision
of this Agreement affected thereby shall be curtailed and limited
only to the extent necessary to bring it into compliance with
applicable law. All the other terms and provisions of this Agreement
shall continue in full force and effect without impairment or
limitation.
f) Arbitration. Any controversy or claim arising out of or relating to
this Agreement or the breach thereof, or the Employee's Employment
or the termination thereof, shall be settled in San Francisco,
California, by arbitration in accordance with the Employment
Arbitration Rules and Procedures of the Judicial Arbitration and
Mediation Services. The decision of the arbitrator shall be final
and binding on the parties, and judgment on the award rendered by
the arbitrator may be entered in any court having jurisdiction
thereof. The parties hereby agree that the arbitrator shall be
empowered to enter an equitable decree mandating specific
enforcement of the terms of this Agreement. To the extent permitted
by applicable law, the Company and the Employee shall share equally
all fees and expenses of the arbitrator. The Employee hereby
consents to personal jurisdiction of the state and federal courts
located in the State of California for any action or proceeding
arising from or relating to this Agreement or relating to any
arbitration in
which the parties are participants. The parties hereby waive any
right they may have to trial by jury in regard to the controversy or
claim submitted for arbitration.
g) No Assignment. This Agreement and all rights and obligations of the
Employee hereunder are personal to the Employee and may not be
transferred or assigned by the Employee at any time. The Company may
assign its rights under this Agreement to any entity that assumes
the Company's obligations hereunder in connection with any sale or
transfer of all or a substantial portion of the Company's assets to
such entity, or merger, stock sale or similar transaction.
h) Employee Acknowledgement. The Employee acknowledges (i) that he has
consulted with or has had the opportunity to consult with
independent counsel of his own choice concerning this Agreement and
has been advised to do so by the Company, and (ii) that he has read
and understands the Agreement, is fully aware of its legal effect,
and has entered into it freely based on his own judgment.
i) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties has executed this Agreement,
in the case of the Company by its duly authorized officer, as of the day and
year first above written.
Employee
By /s/ XXXXXXX X. XXXXXX
--------------------------------------
Xxxxxxx X. Xxxxxx
PlanetOut Partners, Inc.
By /s/ XXXXXX X. XXXXXX
--------------------------------------
Xxxxxx X. Xxxxxx
Chief Executive Officer
