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Exhibit 10.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), effective as of April 6, 2001 (the
"Effective Date"), is between APERIAN, INC., a Delaware corporation (the
"Company"), and XXXXX X. XXXXX ("Xxxxx"). The Company and Xxxxx are collectively
referred to in this Agreement as the "Parties."
BACKGROUND
The Company and Xxxxx are parties to an Employment Agreement dated as of October
30, 2000 (the "Prior Agreement") providing for the employment of Xxxxx as
President and Chief Operating Officer of the Company. The Company has requested
that Xxxxx agree to modify the terms and conditions of the Prior Agreement to
facilitate the merger of Fourthstage Technologies, Inc. with a subsidiary of the
Company.
TERMS OF AGREEMENT
The Parties agree as follows:
1. EMPLOYMENT. The Company hereby employs Xxxxx to devote his personal services
to the business and affairs of the Company, and Xxxxx hereby accepts such
employment, on the terms and conditions stated in this Agreement.
1.1. DUTIES. Xxxxx'x title and position shall be Chief Operating
Officer and Executive Vice President -- Business Operations of the
Company. Xxxxx'x duties will be management of business operations
and marketing and those that may be designated by the Board of
Directors or the Chief Executive Officers of the Company. Xxxxx
shall report directly to the President and Co-Chief Executive
Officer of the Company. Xxxxx shall also serve, upon request and
without additional compensation, as a director of the Company or
as an officer or a director, or both, of any subsidiary, division,
or affiliate of the Company or any other entity in which the
Company holds an equity interest or which it sponsors. If at any
time during the Term, the Company has only one Chief Executive
Officer, all references in this Agreement to one or both Chief
Executive Officers or Co-Chief Executive Officers shall refer to
such Chief Executive Officer.
1.2. FULL-TIME EMPLOYEE. Xxxxx shall devote his full time (except for
reasonable vacation time and absence for any disability),
attention, and best efforts to the performance of his duties
described in Article 1.1.
1.3 PRIOR AGREEMENT. From and after the Effective Date, the Prior
Agreement shall be cancelled and of no effect except as it applies
to Section 5.3 of this Agreement .
2. TERM. The term of Xxxxx' employment under this Agreement (the "Term") shall
be as follows:
2.1. INITIAL TERM. The initial term shall commence on the date of this
Agreement and shall expire at 11:59:59 p.m., Central Time, on the day preceding
the third anniversary of the date of this Agreement, unless terminated earlier
pursuant to Article 5.
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2.2. EXTENDED TERMS. Beginning with the third anniversary of the date
of this Agreement, the Term shall be extended automatically for an additional
successive one-year period as of each anniversary date of the date of this
Agreement that occurs while this Agreement is in effect; provided, however, that
if either party shall give written notice to the other not less than ninety
days' prior any such anniversary the that no such automatic extension shall
occur, then Xxxxx' employment shall terminate on the anniversary date of the
date of this Agreement that next occurs after such notice is given.
3. COMPENSATION. As compensation for the services rendered by Xxxxx under this
Agreement, the Company shall, during the Term, pay or provide Xxxxx during the
Term the following:
3.1. BASE SALARY. The Company shall pay Xxxxx during the Term an annual
base salary equal to at least Two Hundred Fifty Thousand ($250,000), including
any extension of the Term described in Article 2.2, unless the Parties otherwise
agree. The annual amount of base salary in effect at the time is referred to in
this Agreement as "Base Salary." The Base Salary shall be paid in equal
installments semi-monthly, in arrears, at the Company's regular and routine
payroll dates, or at such intervals as may otherwise be agreed upon by the
Parties, and in accordance with any other payroll procedures of the Company. The
Base Salary shall be prorated (on a daily basis) for any partial payroll period
of employment under this Agreement.
3.2. ANNUAL BONUS OPPORTUNITY. Xxxxx shall be eligible to earn and
receive from the Company an incentive bonus as provided in a bonus plan for
employees of the Company and its subsidiaries to be adopted by the Board of
Directors of the Company or the Compensation Committee thereof.
3.3. INCENTIVE PLANS AND RESTRICTED STOCK. Xxxxx shall participate in
any stock option, performance share, phantom stock, or similar long-term
stock-based incentive plan adopted by the Company for its executive employees in
effect during the Term, including the Company's 2000 Stock Option Plan (the
"Option Plan"). Except as described in the remainder of this paragraph, the
extent to which Xxxxx shall participate in any such plan will be determined by
the Board or the Compensation Committee of the Board, but in no event shall
Xxxxx' participation be less than that of any other officer of the Company. On
the date of this Agreement, Xxxxx will be granted 85,000 shares of restricted
stock and 121,000 options in accordance with the Option Plan and the
non-qualified stock option agreement and the Restricted Stock Agreement attached
hereto as Exhibit A.
3.4. SAVINGS AND RETIREMENT PLANS. Xxxxx shall be eligible to
participate in any long-term bonus, savings, deferred compensation, retirement
or pension, or death benefit plan adopted by the Company for its executive
employees generally in effect during the Term.
3.5. WELFARE BENEFIT PLANS. Xxxxx shall be eligible to participate in
any life insurance, medical, dental, and hospitalization insurance, disability
insurance benefit, or other similar employee welfare benefit plan or program
adopted by the Company covering its executive employees generally in effect
during the Term.
3.6. VACATION. Xxxxx shall be entitled to twenty (20) days of paid
vacation per fiscal year. Such vacation time shall, however, be prorated in any
fiscal year during which Xxxxx is employed by the Company for less than the
entire fiscal year, in accordance with the number of days in that fiscal year
during which Xxxxx is so employed. Such vacation time shall be in addition to
any paid
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time off ("PTO") to which Xxxxx may be entitled under the Company's PTO policy
in effect during the Term.
3.7. TAX WITHHOLDING. The Company may deduct from any compensation or
other amount payable to Xxxxx under this Agreement (including under Article 5)
social security (FICA) taxes and all federal, state, municipal, and other taxes
or governmental charges as may, in the Company's judgment, be required. The
Company will consult with Xxxxx as to amounts to be withheld in this regard.
3.8. PARTICIPATION IN COMPENSATION AND BENEFIT PLANS. Xxxxx'
participation during the Term in any or all of the plans or programs adopted by
the Company described in Articles 3.3 through 3.6 ("Compensation and Benefit
Plans") will be subject to the terms and conditions of those Compensation and
Benefit Plans as they now exist or may hereafter be adopted, amended, restated,
or discontinued by the Company, including the satisfaction of all applicable
eligibility requirements and vesting provisions of those Compensation and
Benefit Plans. The Company shall have no obligation under this Agreement to
continue any or all of the Compensation and Benefit Plans that now exist or are
hereafter adopted. To the extent that Xxxxx is eligible to participate in any
Compensation and Benefit Plan existing on the date of this Agreement for which a
plan description or plan materials are available, the Company has provided to
Xxxxx.
4. EXPENSE REIMBURSEMENT. During the Term, Xxxxx may incur, and shall be
reimbursed by the Company for, reasonable, ordinary and necessary, and
documented business expenses to the extent that Xxxxx complies with, and
reimbursement is permitted by, the Company's policies, practices, and
procedures.
5. EMPLOYMENT TERMINATION. Either Party may terminate Xxxxx' employment under
this Agreement by giving written notice of termination to the other Party. If
the Company is terminating, it shall include in that notice a statement whether
the termination is because of Disability or for Cause or without Cause. The
Parties' respective rights and obligations upon the termination of Xxxxx'
employment under this Agreement include the sums, if any, due under paragraph
5.3 and the following:
5.1. TERMINATION GENERALLY. Upon any termination of Xxxxx' employment
under this Agreement, the Company shall pay or provide Xxxxx the following:
5.1.a. Any amount of Base Salary earned by, but not yet paid
to, Xxxxx through the effective date of termination of employment, as
further described below (the "Termination Date");
5.1.b. All benefits that have been earned by or vested in, and
are payable to, Xxxxx under, and subject to the terms (including all
eligibility requirements) of, the Compensation and Benefit Plans in
which Xxxxx participated through the Termination Date;
5.1.c. All reimbursable expenses due, but not yet paid, to
Xxxxx as of the Termination Date under Article 4; and
5.1.d. An amount equal to all accrued and unused PTO,
calculated in accordance with the Company's PTO policies, practices,
and procedures (including authorized deductions and the deductions
required by law), through the Termination Date.
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The amount of Base Salary due under Section 5.1.a shall be paid no
later than ten (10) business days after the Termination Date; the amounts or
benefits due under Section 5.1.b shall be paid or provided in accordance with
the terms of the Compensation and Benefit Plans under which such amounts or
benefits are due to Xxxxx; and the amounts due under Sections 5.1.c and 5.1.d
shall be paid in accordance with the terms of the Company's policies, practices,
and procedures regarding reimbursable expenses and PTO, respectively. Except as
expressly provided below in this Article 5, upon paying or providing Xxxxx the
preceding amounts or benefits, the Company shall have no further obligation or
liability under this Agreement for Base Salary or any other cash compensation or
for any benefits under any of the Compensation and Benefit Plans. Upon
termination of Xxxxx' employment, Xxxxx shall be deemed to have resigned from
any position as a director of the Company or as an officer or director, or both,
of any subsidiary, division, or affiliate of the Company or any other entity in
which the Company holds an equity interest or which it sponsors that Xxxxx then
holds; no written resignation need be given or delivered to the Company.
In this Agreement, the Termination Date shall be (i) the date of Xxxxx'
death, (ii) the third business day after the date on which the Company gives
notice of termination because of Disability, or (iii) the date of termination
specified in any other notice of termination, or if not specified in the notice
of termination, the date that notice of termination is given.
In this Agreement, "Disability" means Xxxxx' permanent and total
disability, which shall be deemed to exist if he is unable reasonably to perform
his duties under this Agreement because of any medically determinable physical
or mental impairment which can be expected to result in death or which has
lasted or can be expected to last for at least ninety (90) consecutive days. Any
Disability shall be determined by the Board or an authorized committee or
representative thereof ("Representative"), in its sole and absolute discretion,
upon receipt of competent medical advice from a qualified physician selected by
or acceptable to the Board or its Representative. Xxxxx shall, if there is any
question about his Disability, submit to a physical examination by a qualified
physician selected by the Board or its Representative.
In this Agreement, "Cause" means any of the following: (i) Xxxxx'x
willful failure to substantially perform his duties under this Agreement without
legal cause, other than any such failure resulting from his incapacity due to
physical or mental illness or Disability; (ii) Xxxxx'x engaging willfully in any
action which, or omitting to engage in any action the omission of which, he
knows or should know is, or is reasonably expected to be substantially injurious
(monetarily or otherwise) to the Company or its business or reputation; (iii)
Xxxxx'x performance of any illegal conduct or act or omission constituting
serious dishonesty that results, directly or indirectly, in significant gain or
enrichment of Xxxxx or his family or affiliates at the expense of the Company or
which adversely affects, or reasonably could in the future adversely affect,
Xxxxx'x value, reliability, or performance in a material manner; or (iv) any
deliberate breach by Xxxxx of any material obligation under any of Articles 6, 7
or 8. Whether an event or circumstance constituting Cause exists will be
determined in good faith the Board of Directors but only if such termination is
approved by at least two-thirds of the members of the Board of Directors after
Xxxxx has been given written notice by Company of the specific reason for such
termination and an opportunity, together with his counsel, to be heard before
the Board of Directors. Members of the Board of Directors may participate in any
hearing that is required pursuant to this paragraph by means of conference
telephone or similar communications equipment by means of which all persons
participating in the hearing can hear and speak to each other; provided,
however, that at least one-half of the members of the Board of Directors (in
addition to Xxxxx) shall attend the hearing in person. If the Company determines
that Cause for termination exists under clause (i) above in this paragraph, the
Company shall notify Xxxxx of that belief, and that notice shall
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describe the event or circumstance believed to constitute Cause for termination.
If that event or circumstance may reasonably be remedied or corrected, Xxxxx
shall have thirty (30) days to effect that correction or remedy. If not
corrected or remedied within that thirty (30) day period (as determined by at
least two-thirds the members of the Board after opportunity for a hearing as
described above), Cause for termination shall immediately be deemed to exist,
and Xxxxx'x employment shall be deemed terminated. If the Company determines, as
provided above, that Cause for termination exists under any of clauses (ii),
(iii), and (iv) above in this paragraph, the Company shall notify Xxxxx of that
belief, and that notice shall constitute immediate termination of Xxxxx'x
employment.
In this Agreement, "Good Reason" means any of the following: (i) a
significant reduction in the nature or scope of Xxxxx authorities or duties from
those set forth in Section 1.1, (ii) a change in Xxxxx'x reporting relationship
so that Xxxxx reports to anyone other than the Board of Directors or one of the
Co-Chief Executive Officers of the Company, (iii) a reduction in Xxxxx'x annual
base salary or target opportunity under any applicable bonus or incentive
compensation plan or arrangement, (iv) a diminution in Xxxxx'x eligibility to
participate in bonus, stock option, incentive award and other compensation plans
which provide opportunities for compensation which are at least equivalent to
the opportunities afforded by the Company (including its subsidiaries) to its
most senior executives; (v) a diminution in employee benefits (including but not
limited to medical, dental, life insurance, and long-term disability plans) and
perquisites applicable to Xxxxx from the employee benefits and perquisites
provided by the Company (including its subsidiaries) to its most senior
executives; or (vi) a change, without Xxxxx'x consent, in the location of
Xxxxx'x principal place of employment by the Company by more than 50 miles from
the location where Xxxxx was principally employed prior to such change. If Xxxxx
determines that an event constituting Good Reason has occurred, Xxxxx shall
notify the Company and the Chairman of the Compensation Committee of the Board
of Directors of that belief, which notice shall set forth the bases for that
belief. The Company shall have 30 days after receipt of such notice in which to
either (a) rectify such event to Xxxxx'x reasonable satisfaction or (b)
determine, in accordance with the standards and procedures described in the
preceding sentence that an event constituting Cause exists. If the Company does
not take either of such actions within such 30-day period, Xxxxx may terminate
his employment for Good Reason immediately by giving written notice to the
Company. Any termination by Xxxxx under this paragraph shall for all purposes of
this Agreement be deemed a termination of Xxxxx'x employment by the Company
without Cause.
In this Agreement "Change of Control" means the first to occur of the
following events: (i) any sale, lease, exchange, or other transfer (in one
transaction or series of related transactions) of all or substantially all of
the assets of the Company to any person or group of related persons for purposes
of Section 13(d) of the Exchange Act, (ii) a majority of the Board of Directors
of the Company shall consist of persons who are not Continuing Directors (as
defined below); (iii) the acquisition after the date of this Agreement by any
person or group of related persons of the power, directly or indirectly, to vote
or direct the voting of securities having more than 50% of the ordinary voting
power for the election of directors of the Company, or (iv) the approval by the
stockholders of the Company of a merger or consolidation of the Company with any
other entity, other than a merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity or such surviving entity's
parent) at least fifty percent (50%) of the total voting power represented by
the voting securities of the Company or such surviving entity or such surviving
entity's parent outstanding immediately after such merger or consolidation. A
"Continuing Director" means, as of the date of determination, any person who (i)
was a member of the Board of Directors of the Company on the date of this
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Agreement or (ii) was nominated for election or elected to the Board of
Directors of the Company with the affirmative vote of a majority of the
Continuing Directors who were members of such Board of Directors at the time of
such nomination or election.
Xxxxx may voluntarily terminate his employment under this Agreement
only by giving at least ten (10) days' prior written notice to the Company.
Xxxxx shall not be liable to the Company for breach of this Agreement because of
his termination of employment in accordance with the preceding sentence.
5.2. TERMINATION UPON DEATH OR DISABILITY. If Xxxxx' employment is
terminated by death or by the Company because of Disability, Xxxxx (or his legal
representative, estate, or heirs) shall be entitled to receive from the Company:
5.2.a. The payment of a total Two Hundred Fifty Thousand
Dollars ($250,000.00), in a lump sum (the "Termination Payment"); and
5.2.b. if Xxxxx elects and maintains continued coverage under
the Consolidated Omnibus Benefits Reconciliation Act of 1985 and
corresponding regulations ("COBRA"), then for up to the twelve (12)
consecutive months immediately after the Termination Date, payments in
an amount equal to the difference between (i) the premiums paid or
payable by Xxxxx for coverage under COBRA for himself and his
dependents (if any) and (ii) the premiums that he would have paid for
comparable coverage under the Company's then current group insurance
plan or plans if his employment under this Agreement had not ceased
(the "Insurance Payments"); except that the Insurance Payments shall
expire or terminate immediately upon Xxxxx' becoming eligible for
coverage under another employer's plan or policy.
In addition, subject to and upon the release executed and delivered
pursuant to Article 5.4 becoming irrevocable, (a) all shares of restricted stock
granted to Xxxxx as described in Section 3.4 will vest and become
non-forfeitable and (b) each stock option granted to Xxxxx, whether now
outstanding or granted in the future, shall vest and shall be exercisable until
the earlier of (x) two years from the date of such termination or (y) the
expiration of the option in accordance with its terms .
The Company will make the Termination Payment and commence the
Insurance Payments within ten (10) business days after the first business day on
which the release executed and delivered in accordance with Section 5.4.a
becomes irrevocable by Xxxxx (or his legal representative, estate, or heirs).
The Company's obligations for the Insurance Payments are not intended to negate
or impair any obligation of the Company or right of Xxxxx under COBRA. The
Severance Payment and the Insurance Payments shall be in addition to the amounts
or benefits to which Xxxxx is entitled under Article 5.1. Any Severance Payment
or Insurance Payments (or both) under this Article 5.2 shall not be deemed the
continuation of Xxxxx' employment for any purpose.
5.3 ADDITIONAL COMPENSATION UPON TERMINATION. If Xxxxx' employment is
terminated by the Company without Cause or by Xxxxx for Good Reason or if Xxxxx
resigns for any reason in his sole discretion within one year from the date of
this Agreement, Xxxxx (or his legal representative, estate, or heirs) shall be
entitled to receive from the Company, and the Company shall pay or deliver to
Xxxxx (or his legal representative, estate, or heirs) as provided below:
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5.3.a. The payment of all amounts of salary under Section 3.1 and bonus
under Section 3.2 of the Prior Agreement (which would have been payable under
the provisions of the Prior Agreement if that Agreement had not been cancelled
by this Agreement) during the remainder of the Term (including the pro rata
portion of the fiscal year in which the Term ends), provided that the Company
shall pay at least one year's salary; provided however, if all benefits due
under paragraph 5.3 of this Agreement (other than payments not yet due under the
first paragraph of Section 5.3.b) are paid or delivered by the Company to Xxxxx,
without restriction, within Thirty (30) after the execution and delivery of the
release by Xxxxx (or his legal representative, estate, or heirs) in accordance
with Section 5.4 of this Agreement then the payment due under this paragraph
shall be an amount equivalent to one year's base salary payable as a lump sum as
provided below(the "Severance Payment"); and provided further that if such
termination shall occur on or within two years following the date of a Change of
Control, the payment shall not be less than the amount of salary and bonus that
would have been payable thereunder for the two years following the date of such
termination had this Agreement continued in effect throughout such period; and
5.3.b. If Xxxxx elects and maintains continued coverage under the
Consolidated Omnibus Benefits Reconciliation Act of 1985 and corresponding
regulations ("COBRA"), then for up to the twenty-four (24) consecutive months
immediately after the Termination Date, payments in an amount equal to the
difference between (i) the premiums paid or payable by Xxxxx for coverage under
COBRA for himself and his dependents (if any) and (ii) the premiums that he
would have paid for comparable coverage under the Company's then current group
insurance plan or plans if his employment under this Agreement had not ceased
(the "Insurance Payments"); except that the Insurance Payments shall expire or
terminate immediately upon Xxxxx' becoming eligible for coverage under another
employer's plan or policy.
In addition, on the eighth day after execution and delivery of the
release pursuant to Article 5.4 becoming irrevocable, but only if such release
has not been revoked, (a) all shares of restricted stock granted to Xxxxx as
described in Section 3.4 will vest and become non-forfeitable and (b) each stock
option granted to Xxxxx, whether now outstanding or granted in the future, shall
vest and shall be exercisable until the earlier of (x) two years from the date
of such termination or (y) the expiration of the option in accordance with its
terms.
The Company will pay the Severance Payment and commence the Insurance
Payments within sixty (60) days after the first day on which the release is
executed and delivered in accordance with Section 5.4, but only if such release
is not revoked, by Xxxxx (or his legal representative, estate, or heirs). The
Company's obligations for the Insurance Payments are not intended to negate or
impair any obligation of the Company or right of Xxxxx under COBRA. The
Severance Payment and the Insurance Payments shall be in addition to the amounts
or benefits to which Xxxxx is entitled under Article 5.1. Any Severance Payment
or Insurance Payments (or both) under this Article 5.3 shall not be deemed the
continuation of Xxxxx' employment for any purpose.
5.4. CONDITIONS TO SEVERANCE BENEFITS. Except as provided in Section
5.2.b or 5.3.b, none of the Termination Payment, Severance Payment or the
Insurance Payments under Articles 5.2 and 5.3 will be subject to reduction as
the result of future compensation earned or received by Xxxxx (including by
self-employment), and Xxxxx shall have no duty to mitigate his damages. The
Severance Payment and the Insurance Payments and the vesting of restricted
stock, shall, however, be conditioned upon the Company's receipt of a Settlement
Agreement, General
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Release, and Covenant Not to Xxx executed by Xxxxx (or his legal representative,
estate, or heirs) in substantially the form of Exhibit B to this Agreement (the
"Release Agreement").
5.5. TERMINATION FOR CAUSE OR BY XXXXX. If Xxxxx' employment is
terminated by the Company for Cause or is voluntarily terminated by Xxxxx after
the first year of this Agreement, then Xxxxx shall not be entitled to any
payments under this Agreement other than the amounts or benefits to which he is
entitled under Article 5.1.
5.6 FAILURE TO EXTEND. If at any time, the Company elects not to extend
the Term as described in Article 2.1, then Xxxxx shall continue to perform under
this Agreement until the expiration of the Term and shall then be entitled to
continued payment of the Base Salary then in effect for an additional six (6)
months after the expiration date. The obligation of the Company to make such
payments under this Article 5.6 shall be subject to the same conditions, and
shall have the same effect, as Severance Payment under this Agreement.
5.7. POST-TERMINATION SURVIVAL. The provisions of this Article 5 shall
survive the termination of Xxxxx' employment by the Company and its subsidiaries
to the extent necessary to effect the post-termination payments or benefits to
which Xxxxx is entitled under the terms of this Article 5.
6. CONFIDENTIAL INFORMATION. The Company shall provide to Xxxxx, during the
Term, access to various trade secrets, confidential information, and proprietary
information of the Company (which, in this Article 6 as well as in Articles 7
and 8, shall include the Company's subsidiaries and affiliates), which are
valuable and unique to the Company ("Confidential Information"). Confidential
Information includes the Company's plans, policies, and procedures relating to
its BBN Certification as well as the terms of, and the Company's plans,
policies, and procedures relating to, the Company's relationships with any
supplier of telecommunications services, network services or other services, and
other persons having relationships that are material to the Company's business
and affairs. Xxxxx shall not, either while in the employ of the Company or at
any time thereafter, (i) use any of the Confidential Information, or (ii)
disclose any of the Confidential Information to any person not an employee of
the Company or not engaged to render services to the Company, except (in either
case) to perform his duties under this Agreement or otherwise with the Company's
prior written consent. Nothing in this Article 6 shall preclude Xxxxx from the
use or disclosure of information generally known to the public or not considered
confidential by the Company or from any disclosure to the extent required by law
or court order (though Xxxxx must give the Company prior notice of any such
required disclosure and must cooperate with any reasonable requests of the
Company to obtain a protective order regarding, or to narrow the scope of, the
Confidential Information required to be disclosed). All files, records,
documents, information, data, and similar items relating to the business or
affairs of the Company, whether prepared by Xxxxx or otherwise coming into his
possession, shall remain the exclusive property of the Company and shall not be
removed from the premises from the Company, except in the ordinary course of
business as part of Xxxxx' performance of his duties under this Agreement, and
(in any event) shall be promptly returned or delivered to the Company (without
Xxxxx' retaining any copies) upon the termination of employment under this
Agreement.
7. NONSOLICITATION. Xxxxx shall not, at any time within the twelve (12)
consecutive months immediately after the Termination Date, either directly or
indirectly:
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7.1. DISCLOSE CONTACT INFORMATION. Make known to any person the names
and addresses, or other contact information, of any of the customers, suppliers,
or other persons having significant business relationships with the Company
within the information technology industry, so that such person could affect, or
attempt to affect, any of those relationships to the detriment of the Company;
or
7.2. SOLICIT EMPLOYEES. Solicit, recruit, or hire, or attempt to
solicit, recruit, or hire, any employee or consultant of the Company, or in any
other manner attempt to induce any employee or consultant of the Company to
leave the employ of the Company or cease his or her consulting or similar
business relationship with the Company. References in this Article 7.2 to "any
employee or consultant" shall include any person who was an employee or
consultant of the Company at any time within the six (6) consecutive months
preceding, and including, the Termination Date.
8. DEVELOPMENTS. Xxxxx shall promptly disclose to the Company all inventions,
discoveries, improvements, processes, formulas, ideas, know-how, methods,
research, compositions, and other developments, whether or not patentable or
copyrightable, that Xxxxx, by himself or in conjunction with any other person,
conceives, makes, develops, or acquires during the Term which (i) are or relate
to the properties, assets, or existing or contemplated business or research
activities of the Company, (ii) are suggested by, arise out of, or result from,
directly or indirectly, Xxxxx' association with the Company, or (iii) arise out
of or result from, directly or indirectly, the use of the Company's time, labor,
materials, facilities, or other resources ("Developments").
Xxxxx hereby assigns, transfers, and conveys to the Company, and hereby agrees
to assign, transfer, and convey to the Company during or after the Term, all of
his right and title to and interest in all Developments. Xxxxx shall, from time
to time upon the request of the Company during or after the Term, execute and
deliver any and all instruments and documents and take any and all other actions
which, in the judgment of the Company or its counsel, are or may be necessary or
desirable to document any such assignment, transfer, and conveyance to the
Company or to enable the Company to file and process applications for, and to
acquire, maintain, and enforce, any and all patents, trademarks, registrations,
or copyrights with respect to any of the Developments, or to obtain any
extension, validation, re-issue, continuance, or renewal of any such patent,
trademark, registration, or copyright. The Company will be responsible for the
preparation of any such instrument or document and for the implementation of any
such proceedings and will reimburse Xxxxx for all reasonable expenses incurred
by him in complying with this Article 8.
9. INDEMNIFICATION. To the extent Xxxxx is an officer or director of
the Company, the Company shall include Xxxxx under any existing or future (i)
directors' and officers' liability insurance policy that the Company obtains and
maintains or (ii) indemnification agreements between the Company and other
executives of the Company. Subject to the foregoing sentence, the Company will
indemnify Xxxxx to the fullest extent permitted by the laws of the Company's
state of incorporation in effect at that time or by the articles or certificate
of incorporation and by-laws of the Company, whichever affords the greater
protection to Xxxxx.
10. CERTAIN REMEDIES. Any breach or violation by Xxxxx of any of
Articles 6, 7 and 8 shall entitle the Company, as a matter of right, to an
injunction issued by any court of competent jurisdiction, restraining any
further or continued breach or violation, or to specific performance requiring
the compliance with Xxxxx' covenants. This right to an injunction or other
equitable relief shall be in addition to, and not in lieu of, any other remedies
to which the Company may be entitled. The existence of any claim or cause of
action of Xxxxx against the Company, or any
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subsidiary or affiliate of the Company, whether based on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the Company of
Xxxxx' covenants in any of Articles 6, 7 and 8. The covenants in Articles 6, 7
and 8 and in this Article 10 shall survive the termination of Xxxxx' employment
under this Agreement.
11. BINDING AGREEMENT; SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon, and shall inure to the benefit of, the Company and Xxxxx and their
respective legal representatives, heirs, executors, administrators, and
successors and assigns (as permitted by this Article 11), including any
successor to the Company by merger, consolidation, or reorganization and any
other person that acquires all or substantially all of the business and assets
of the Company. The rights, benefits, remedies, and obligations of Xxxxx under
this Agreement are personal to Xxxxx and may not be assigned or delegated by
him; except that this shall not preclude (i) Xxxxx from designating one or more
beneficiaries to receive any amount or benefit that may be paid or provided
after Xxxxx' death or (ii) the legal representative of Xxxxx' estate from
assigning any right or benefit under this Agreement to the person or persons
entitled thereto under Xxxxx' will or the laws of intestacy applicable to Xxxxx'
estate, as the case may be.
12. SEVERABILITY. If any provision of this Agreement is found to be invalid or
unenforceable for any reason, then (i) that provision shall be severed from this
Agreement, (ii) this Agreement shall be construed and enforced as if that
invalid or unenforceable provision never constituted a part of this Agreement,
and (iii) the remaining provisions of this Agreement shall be unaffected thereby
and shall remain in full force and effect to the fullest extent permitted by
applicable law. Further, in lieu of that invalid or unenforceable provision,
there shall be added to this Agreement a provision as similar in its terms to
that invalid or unenforceable provision as may be possible and be valid and
enforceable.
13. NOTICES. Any notice, request, or other communication to be given by either
Party under this Agreement by to the other shall be in writing and either (i)
delivered in person, (ii) delivered by prepaid same-day or overnight courier
service, (iii) sent by certified mail, postage prepaid with return receipt
requested, or (iv) transmitted by facsimile, in any case addressed to the other
Party as follows:
To the Company:
Aperian, Inc.
0000 Xxxx 0xx Xxxxxx
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attention: Chairman of the Compensation Committee
with a copy (which shall not constitute notice) to:
Aperian, Inc.
0000 Xxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attention: Corporate Secretary
To Xxxxx:
Xxxxx X. Xxxxx
000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxx 00000
10
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or to such other address or facsimile number as the Party to be notified may
have designated by notice previously given in accordance with this Article 13.
Communications delivered in person or by courier service or transmitted by
facsimile shall be deemed given and received as of actual receipt (or refusal)
by the addressee. Communications mailed as described above in this Article 14
shall be deemed given and received three (3) business days after mailing or upon
actual receipt, whichever is earlier.
14. CERTAIN DEFINED TERMS. In this Agreement, (i) "person" means an individual
or any corporation, partnership, trust, unincorporated association, limited
liability company, or other legal entity, whether acting in an individual,
fiduciary, or other capacity, and any government, court, or governmental agency,
(ii) "include" and "including" do not signify any limitation, (iii) "Article"
and "Section" means any Article and any Section, respectively, of this
Agreement, unless otherwise indicated, (iv) an "affiliate" of a person means any
other person controlling, controlled by, or under common control with that
person, and (v) "business day" means any Monday through Friday, other than any
such weekday on which the executive offices of the Company are closed. In
addition, the use in this Agreement of "year," "annual," "month," or "monthly"
(or similar terms) to indicate a measurement period shall not itself be deemed
to grant rights to Xxxxx for employment or compensation for that period.
15. ENTIRE AGREEMENT. This Agreement, with Exhibits "A" and "B", constitutes the
entire agreement between the Company and Xxxxx with respect to the subject
matter hereof and supersedes any prior agreement between the Company and Xxxxx
with respect to the same subject matter.
16. MODIFICATION AND WAIVER. No amendment to or modification of this Agreement,
or waiver of any term, provision, or condition of this Agreement, will be
binding upon a Party unless the amendment, modification, or waiver is in writing
and signed by the Party to be bound. Any waiver by a Party of a breach or
violation of any provision of this Agreement by the other Party shall not be
deemed a waiver of any other provision or of any subsequent breach or violation.
17. GENDER. Whenever the context requires in this Agreement, words denoting
gender in this Agreement include the masculine, feminine, and neuter.
18. GOVERNING LAW; VENUE. This Agreement, and the rights, remedies, obligations,
and duties of the Parties under this Agreement, shall be governed by, construed
in accordance with, and enforced under the laws of the State of Texas. The
exclusive venue of any action or proceeding relating to this Agreement or its
subject matter shall be in Dallas County, Texas.
19. COUNTERPARTS. This Agreement may be executed in counterparts, each of which
constitutes an original, but all of which constitute one and the same document.
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The Parties have executed this Agreement to be effective as of the date stated
in the first paragraph.
APERIAN, INC.
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------------------------
Xxxxx X. Xxxxxxxx, Vice President,
General Counsel and Secretary
XXXXX X. XXXXX
/s/ Xxxxx X. Xxxxx
-------------------------------------------------------------
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EXHIBIT B
SETTLEMENT AGREEMENT, GENERAL RELEASE
AND COVENANT NOT TO XXX
This Settlement Agreement, General Release, and Covenant Not to Xxx
("Agreement") is made and entered into as of the ___day of _____________ , ____
by and between Xxxxx X. Xxxxx ("Employee") and Aperian, Inc., a Delaware
corporation (the "Company"), both of which are hereinafter collectively referred
to as the "parties".
Recitals
WHEREAS, Employee was employed by the Company as its Executive Vice
President and Chief Operating Officer under the terms of an Employment Agreement
dated as of April 6, 2001 (the "Employment Agreement");
WHEREAS, Employee's employment under the Employment Agreement [shall
terminate/has terminated] effective ____________________ .(the "Termination
Date"); and
WHEREAS, the parties desire to settle fully and finally, in the manner
set forth herein, all differences between them which have arisen, or which may
arise, prior to, or at the time of, the execution of this Agreement, including,
but in no way limited to, any and all claims and controversies arising out of
the Employment Agreement, the employment relationship between Employee and the
Company, and the cessation or termination thereof;
AGREEMENT
NOW, THEREFORE, in consideration of the recitals and the mutual
promises, covenants and agreements set forth herein, the parties covenant and
agree as follows:
1. Employee, for himself or herself and on behalf of his
attorneys, heirs, legatees, assigns, successors, executors, and administrators,
IRREVOCABLY AND UNCONDITIONALLY RELEASES, ACQUITS, AND FOREVER DISCHARGES the
Company, its current and former parent, subsidiary, affiliated, and related
corporations, firms, associations, partnerships, limited liability companies,
and other entities, their successors and assigns, and the current and former
owners, members, shareholders, managers, directors, officers, partners,
employees, agents, attorneys, representatives, and insurers of said
corporations, firms, associations, partnerships, limited liability companies,
and other entities, and their guardians, successors, assigns, heirs, executors,
and administrators (hereinafter collectively referred to as the "Releasees"),
from any and all claims, complaints, grievances, liabilities, obligations,
promises, agreements, damages, causes of action, rights, debts, demands,
controversies, costs, losses, damages, and expenses (including, without
limitation, attorneys' fees and expenses) whatsoever (collectively, ".claims")
under any municipal, local, state, or federal law, common or statutory
including, but in no way limited to, Claims under the Age Discrimination in
Employment Act of 1967, 29 U.S.C. Section 621, et seq. for any actions or
omissions whatsoever, whether known or unknown, that are connected with or
related to the Employment Agreement, the employment of Employee by the Company,
or the cessation or termination thereof, which existed or may have existed prior
to, or contemporaneously with, the execution of this Agreement. Employee does
not, however, release, acquit, or discharge the Releasees from any Claim arising
out of any nonperformance or failure to perform by the Company of any of its
obligations under this Agreement or any Claim not connected with or related to
the Employment Agreement, the employment of Employee by the Company, or the
cessation or termination thereof
14
2. Employee, for himself or herself and on behalf of his or her
attorneys, heirs, legatees, assigns, successors, executors, and administrators,
COVENANTS NOT TO XXX OR OTHERWISE CONSENT TO PARTICIPATE IN ANY ACTION AGAINST,
any of the Releasees based upon any of the Claims released in paragraph 1 of
this Agreement.
3. Employee agrees that he will keep the terms, amount, and fact
of this Agreement STRICTLY AND COMPLETELY CONFIDENTIAL and that he will not
communicate or otherwise disclose to any employee (past, present, or future) of
the Company or any of the other Releasees or to a member of the general public
the terms, amount, or fact of this Agreement, except as may be required by law
or compulsory process.
4. Employee waives and releases forever any right or rights he
might have to employment, reemployment, or reinstatement with the Company or any
of the other Releasees, except as may be provided under the terms of this
Agreement
5. Upon the expiration of seven (7) days after Employee's
execution of this Agreement, the Company agrees to begin to payor provide
Employee the Severance Payments and, if applicable, the Insurance Payments (as
those terms are defined in the Employment Agreement) in accordance with the
surviving terms of the Employment Agreement
6. The parties hereto recognize that, by entering into this
Agreement, the Company and each other Releasee does not admit, and does
specifically deny, any violation of any local, state, or federal law, common or
statutory. The parties further recognize that this Agreement has been entered
into in release and compromise of any claims which might be asserted by Employee
in connection with his employment by the Company, or the termination thereof,
and to avoid the expense and burden of any litigation related thereto.
7. The parties acknowledge and agree that in the event Employee
materially breaches any provision of this Agreement, (a) Employee will indemnify
and hold the Company harmless from and against any and all resulting damages,
expense, or loss incurred by the Company (including, without limitation,
attorneys' fees and expenses), (b) Employee will immediately repay to the
Company in full any payments made to him under the provisions (including,
without limitation, paragraph 5) of this Agreement, and (c) the Company will be
entitled to file counterclaims against Employee for breach of the covenant not
to xxx and may recover from Employee any payment not repaid to the Company, as
required by clause (b) of this paragraph 7, as well as any and all other
resulting actual or consequential damages.
8. One or more waivers of a breach of any covenant, term, or
provision of this Agreement by either party shall not be construed as a waiver
of a subsequent breach of the same covenant, term, or provision, nor shall it be
considered a waiver of any other then existing or subsequent breach of a
different covenant, term, or provision.
9. If any provision or term of this Agreement is held to be
illegal, invalid, or unenforceable, (a) such provision or term shall be fully
severable, (b) this Agreement shall be construed and enforced as if such
illegal, invalid, or unenforceable provision had never constituted part of this
Agreement, and (c) the
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15
remaining provisions of this Agreement shall remain in full force and effect and
shall not be affected by the illegal, invalid, or unenforceable provision or by
its severance from this Agreement. Furthermore, in lieu of each such illegal,
invalid, or unenforceable provision or term there shall be added automatically
as a part of this Agreement another provision or term as similar to the illegal,
invalid, or unenforceable provision as may be possible and that is legal, valid,
and enforceable.
10. The parties agree that should one party xxx the other party
for a breach of any provision of this Agreement, the prevailing party shall be
entitled to recover its attorneys' fees and costs of court. Each party shall
have the right to xxx for specific performance of this Agreement, and for
declaratory and injunctive relief.
11. Employee may revoke this Agreement, within seven (7) days of
the date of its execution by Employee (the "Revocation Period"), by written
notice to the Company. Employee agrees that if he revokes this Agreement, he
shall receive none of the benefits provided for under its terms or the surviving
terms of the Employment Agreement Employee further understands and agrees that,
unless the Company receives from Employee, prior to the expiration of the
Revocation Period, written notice of his revocation of this Agreement, this
Agreement and all of its terms shall have full force and effect, and Employee
shall have forever waived his right to revoke this Agreement.
12. This Agreement and the terms of the Employment Agreement that
survive the cessation or termination of Employee's employment thereunder
constitute the entire agreement of the parties, and supersedes all prior and
contemporaneous negotiations and agreements, oral or written, between the
parties. All prior and contemporaneous negotiations and agreements are deemed
incorporated and merged into this Agreement and are deemed to have been
abandoned if not so incorporated. No representations, oral or written, are being
relied upon by either party in executing this Agreement other than the express
representations of this Agreement and the terms of the Employment Agreement that
survive the cessation or termination of Employee's employment thereunder. This
Agreement cannot be changed or terminated without the express written consent of
the parties.
13. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas, except where preempted by
federal law.
14. By executing this Agreement, Employee acknowledges that (a)
this Agreement has been reviewed with him by a representative of the Company
(see Attachment" A", which is attached hereto and incorporated herein by
reference), (b) he has had at least twenty-one (21) days to consider the terms
of the Agreement (see Attachment" A"), and has considered its terms for that
period of time or has knowingly and voluntarily waived his right to do so, (C)
he has been advised by the Company in writing to consult with an attorney
regarding the terms of the Agreement (see Attachment" A"), (d) he has consulted
with, or has had sufficient opportunity to consult with, an attorney of his own
choosing regarding the terms of this Agreement, (e) any and all questions
regarding the terms of this Agreement have been asked and answered to his
complete satisfaction, (f) he has read this Agreement and fully understands its
terms and their import, (g) except as provided by this Agreement, he has no
contractual right or claim to the benefits described herein, (h) the
consideration provided for herein is good and valuable, and (i) he is entering
into this Agreement voluntarily, of his own free will, and without any coercion,
undue influence, threat, or intimidation of any kind or type whatsoever.
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16
EXECUTED in _________________ ,Texas, this -day of , ,
i
EMPLOYEE:
______________________________
THE STATE OF Section
Section
COUNTY OF Section
BEFORE :ME, the undersigned, a Notary Public, on this day personally
appeared ______________________, known to me to be the person whose name is
subscribed to the foregoing instrument, and acknowledged to me that he or she
executed the same for the purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND;SEAL OF OFFICE this ______day of ___________ ,
______
________________________________________
Notary Public, State of _________
[SEAL]
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17
EXECUTED in ______________, Texas, this _____day of ____________, ______.
APERIAN, INC.
By: ____________________________________
Its: ____________________________________
COUNTY OF Section
Section
THE STATE OF Section
BEFORE ME, the undersigned, a Notary Public, on this day personally appeared
__________________________________________________________of APERIAN, INC.,
known to me to be the person Whose name is subscribed to the foregoing
instrument, and acknowledged to me that he or she executed the same as the act
of that company for the purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this _____day of ______________ , _____
________________________________________
Notary Public, State of
[SEAL]
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ATTACHMENT A
NOTICE OF RIGHTS
Attached hereto you will find a proposed Settlement Agreement, General
Release, and Covenant Not to Xxx (" Agreement") with respect to the cessation or
termination of your employment. It is required by law that you be given at least
21 days from the date of receipt of the proposed Agreement within which to
consider its terms. During this period, please feel free to contact the person
listed below to ask any questions regarding the Agreement including. but not
limited to, the definitions of words which you do not know and the meanings of
phrases, sentences, or paragraphs which you do not understand. It is recommended
that you consult with an attorney regarding your legal rights with respect to
the Agreement during this 21-day period.
ACKNOWLEDGMENT OF RECEIPT
I acknowledge that I received a copy of APERIAN, INC.'s proposed
Settlement Agreement, General Release, and Covenant Not to Xxx at _:-__.m this
________ day of _________________ , _____.and that the Agreement and the Notice
of Rights above have been reviewed with me by the person signing below on behalf
of APERIAN, INC.
EMPLOYEE:
________________________________
______________ , ____
(Date)
APERIAN, INC.
By: ______________________________
Its: ______________________________
19
EXHIBIT A-1
AMENDED AND RESTATED
RESTRICTED STOCK AWARD AGREEMENT
To: Xxxxx Xxxxx Date of Grant: April 6, 2001 Number of Shares: 85,000
Aperian, Inc., a Delaware company (the "Company"), is pleased to grant
you an award (the "Award") consisting of an aggregate of 85,000 shares (the
"Restricted Shares") of the Company's authorized Common Stock, par value $.01
per share, subject to the terms and conditions set forth in this Restricted
Stock Award Agreement (this "Agreement") and the Aperian, Inc. 2000 Stock Option
Plan as restated (the "Plan"). The Award is governed by the terms of this
Agreement and, where appropriate, the Plan.
This Agreement sets forth the terms of the agreement between you and
the Company with respect to the Restricted Shares. By accepting this Agreement,
you agree to be bound by all of the terms hereof.
1. DEFINITIONS. As used in this Agreement, the following terms
have the meanings set forth below:
(a) "Award" has the meaning set forth in the first
paragraph of this Agreement.
(b) "Board of Directors" means the board of directors of
the Company.
(c) "Business Day" means any day other than a Saturday, a
Sunday or a day on which banking institutions in the State of Texas are
authorized or obligated by law or executive order to close.
(d) "Cause" means any of the following: (i) your willful
failure to substantially perform your duties under the employment agreement, if
any, entered into between you and the Company (the "Employment Agreement")
without legal cause, other than any such failure resulting from your incapacity
due to physical or mental illness or Disability; (ii) your engaging willfully in
any action which, or omitting to engage in any action the omission of which, you
know or should know is, or is reasonably expected to be, substantially injurious
(monetarily or otherwise) to the Company or its business or reputation; (iii)
your performance of any illegal conduct or act or omission constituting serious
dishonesty that results, directly or indirectly, in significant gain or
enrichment of your or your affiliates at the expense of the Company or which
adversely affects, or reasonably could in the future adversely affect, your
value, reliability, or performance in a material manner; or (iv) any deliberate
breach by you of any material obligation under your employment agreement which
relates to the preservation of confidential information, disclosure of Company
contact information, the nonsolicitation of Company employees or consultants, or
the disclosure or assignment of the acquisition or development of intellectual
property. Whether an event or circumstance constituting Cause exists will be
determined in good faith by the Board of Directors, but only if such
determination
20
is approved by at least two-thirds of the members of the Board of Directors,
after you have been given written notice by the Company of the specific reason
for such termination and an opportunity, together with counsel, to be heard
before the Board of Directors. A member of the Board of Directors may
participate in any hearing that is required pursuant to Section 1 of this
Agreement by means of conference telephone or similar communications equipment
by means of which all persons participating in the hearing can hear and speak to
each other; provided, however, that at least one-half of the members of the
Board of Directors (in addition to you) shall attend the hearing in person. If
the Company determines that Cause for termination exists pursuant to Section
1(d)(i) of this Agreement, the Company shall notify you of that belief, and that
notice shall describe the event or circumstance believed to constitute Cause for
termination. If that event or circumstance may reasonably be remedied or
corrected, you shall have thirty (30) days to effect that correction or remedy.
If not corrected or remedied within that thirty (30) day period (as determined
by at least two-thirds of the members of the Board of Directors after
opportunity for a hearing as described in this Section 1), Cause for termination
shall immediately be deemed to exist and your employment shall be terminated. If
the Company determines, as provided above, that Cause for termination exists
under Sections 1(d)(ii)-(iv) of this Agreement, the Company shall notify you of
that belief and that notice shall constitute immediate termination of your
employment.
(e) "Change in Control" shall mean the first to occur of
the following events: (i) any sale, lease, exchange, or other transfer (in one
transaction or series of related transactions) of all or substantially all of
the assets of the Company to any Person or group of related Persons for purposes
of section 13(d) of the Exchange Act; (ii) a majority of the Board of Directors
shall consist of Persons who are not Continuing Directors; (iii) the acquisition
after the date of this Agreement by any Person or group of Persons of the power,
directly or indirectly, to vote or direct the voting of securities having more
than 50% of the ordinary voting power for the election of directors of the
Company; or (iv) the approval by the shareholders of the Company of a merger or
consolidation of the Company with any other entity, other than a merger or
consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity or such surviving entity's parent) at least fifty percent (50%)
of the total voting power represented by the voting securities of the Company or
such surviving entity or such surviving entity's parent outstanding immediately
after such merger or consolidation.
(f) "Change in Control Price" means the Common Stock
price established, in connection with a Change in Control, under an applicable
following scenario: (i) the per share price offered to holders of the Common
Stock of the Company in any such merger or consolidation; (ii) the per share
value of the Common Stock immediately before the Change in Control without
regard to assets sold in the Change in Control and assuming the Company has
received the consideration paid for the assets in the case of a sale of the
assets; (iii) the amount distributed per share of Common Stock in a dissolution
transaction; or (iv) the price per share offered to holders of the Common Stock
of the Company in any tender offer or exchange offer whereby a Change in Control
takes place. In the event that the consideration offered to stockholders of the
Company in any transaction described in this Section 1(f) consists of anything
other than cash, the Committee shall determine the fair cash equivalent of the
portion of the consideration offered which is other than cash.
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(g) "Committee" shall mean the committee or sub-committee
established by the Board of Directors to administer part or all of the Plan.
(h) "Common Stock" means the common stock, par value $.01
per share, of the Company.
(i) "Continuing Director" shall mean, as of the date of
determination, any Person who (i) was a member of the Board of Directors on the
date of this Agreement, or (ii) was nominated for election or elected to the
Board of Directors with the affirmative vote of a majority of the Continuing
Directors who were members of the Board of Directors at the time of such
nomination or election.
(j) "Date of Grant" means April 6, 2001.
(k) "Disability" shall have the meaning given it in any
employment agreement between you and the Company; provided, however, that if you
do not have an employment agreement, "Disability" shall mean your permanent and
total disability, which shall be deemed to exist if you are reasonably unable to
perform your employment duties because of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted
or can be expected to last for at least ninety (90) consecutive days; provided
that, the existence of any Disability shall be determined by the Board of
Directors or an authorized committee or representative thereof
("Representative"), in its sole and absolute discretion, upon receipt of
competent medical advice from a qualified physician selected by or acceptable to
the Board of Directors or its Representative; provided, further that, you shall,
if there is any question about your Disability, submit to a physical examination
by a qualified physician selected by the Board of Directors or its
Representative.
(l) "Employee" means any employee of the Company or of
any of its Subsidiaries, including officers and directors of the Company who are
also employees of the Company or of any of its Subsidiaries.
(m) "Exchange Act" means the Securities Exchange Act of
1934.
(n) "Fair Market Value" shall, as it relates to the
Common Stock, mean, notwithstanding anything in the Plan to the contrary, the
closing price of such shares of Common Stock as reported on the principal
national securities exchange on which the shares of Common Stock are then listed
or the NASDAQ National Market, as applicable, on the Business Day preceding the
date specified herein for such a determination, or if there were no sales on
such preceding date, on the prior immediately preceding day on which there were
sales, or if such Common Stock is not listed on a national securities exchange
or the NASDAQ National Market, the last reported bid price in the
over-the-counter market, or if such shares are not traded in the
over-the-counter market, the per share cash price for which all of the
outstanding shares of Common Stock could be sold to a willing purchaser in an
arms length transaction (without regard to minority discount, absence of
liquidity, or transfer restrictions imposed by any applicable law or agreement)
as of the Business Day preceding the date of the event giving rise to a need for
a determination.
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(o) "Good Reason" means any of the following: (i) a
significant reduction in the nature or scope of your authorities or duties from
those customarily performed by persons acting in your capacity; (ii) a change in
your reporting relationship so that you report to anyone other than the Board of
Directors of the Company; (iii) a reduction in your annual base salary or target
opportunity under any applicable bonus or incentive compensation plan or
arrangement; (iv) a diminution in your eligibility to participate in bonus,
stock option, incentive award and other compensation plans which provide
opportunities for compensation which are at least equivalent to the
opportunities afforded by the Company (including its Subsidiaries) to its most
senior executives; (v) a diminution in employee benefits (including but not
limited to medical, dental, life insurance, and long-term disability plans) and
perquisites applicable to you from the employee benefits and perquisites
provided by the Company (including its Subsidiaries) to its most senior
executives; or (vi) a change, without your consent, in the location of your
principal place of employment by the Company by more than 50 miles from the
location where you were principally employed prior to such change. If you
determine that an event constituting Good Reason has occurred, you shall notify
the Company and the Chairman of the Compensation Committee of the Board of
Directors of that belief, which notice shall set forth the bases for that
belief. The Company shall have 30 days after receipt of such notice in which to
either rectify such event to your reasonable satisfaction or determine that an
event constituting Cause exists. If the Company does not take either of such
actions within such 30-day period, you may terminate your employment for Good
Reason immediately by giving written notice to the Company.
(p) "Non-Surviving Event" means the occurrence of one or
both of the following:
(i) the merger or consolidation of the Company
with any Person, whether effected as a single transaction or a series
of related transactions, with (A) the Company not being the continuing
or surviving entity of that merger or consolidation or (B) the Company
remaining the continuing or surviving entity of that merger or
consolidation but all or a part of the outstanding shares of stock are
changed into or exchanged for stock or other securities of any other
Person or the Company, cash, or other property; or
(ii) the transfer, directly or indirectly, of all
or substantially all of the assets of the Company (whether by sale,
merger, consolidation, liquidation, or otherwise) to any Person,
whether effected as a single transaction or a series of related
transactions.
(q) "Person" means any person or entity of any nature,
whatsoever, specifically including an individual, a firm, a company, a
partnership, a trust, or other entity.
(r) "Subsidiary" means, with respect to any Person, any
company, limited partnership, limited liability company or other entity of which
a majority of the voting power of the voting equity securities or equity
interest is owned, directly or indirectly, by that Person.
2. ESCROW OF RESTRICTED SHARES. The Company shall issue in your
name a certificate or certificates representing the Restricted Shares and retain
that certificate or those certificates until the restrictions on such Restricted
Shares expire as described in Sections 5, 6, 8, 9 and 10 of this Agreement or
the Restricted Shares are forfeited as contemplated in Sections 4
4
23
and 8 of this Agreement. You shall execute one or more stock powers in blank for
those certificates and deliver those stock powers to the Company. You hereby
agree that the Company shall hold the certificate or certificates representing
the Restricted Shares and the related stock powers pursuant to the terms of this
Agreement until such time as such certificate or certificates are either
delivered to you or canceled pursuant to this Agreement.
3. OWNERSHIP OF RESTRICTED SHARES. From and after the time that a
certificate or certificates representing the Restricted Shares has been issued
in your name, you will be entitled to all the rights of absolute ownership of
the Restricted Shares, including the right to vote those shares and to receive
dividends thereon if, as, and when declared by the Board of Directors, subject,
however, to the terms, conditions and restrictions set forth in this Agreement.
4. RESTRICTIONS; FORFEITURE. The Restricted Shares are restricted
in that they may not be sold, transferred or otherwise alienated or hypothecated
until such restrictions are removed or expire as described in Section 5, 6, 8, 9
or 10 of this Agreement. The Restricted Shares are also subject to forfeiture at
the Company's election as set forth in this Agreement if your employment with
the Company is terminated on or prior to April 6, 2003 (either by you or by the
Company), subject to the provisions set forth in Sections 5, 6, 8, 9 and 10 of
this Agreement. You hereby agree that if the Restricted Shares are forfeited as
provided in this Section 4, the Company shall have the right to deliver the
certificate(s) representing the Restricted Shares to the Company's transfer
agent for cancellation or, at the Company's election, for transfer to the
Company to be held by the Company in treasury or any designee of the Company.
5. EXPIRATION OF RESTRICTIONS AND RISK OF FORFEITURE. The
restrictions on all of the Restricted Shares granted pursuant to this Agreement
will expire on April 6, 2003, provided, however, that such restrictions will
expire on that date only if you have been an Employee continuously from the Date
of Grant through April 6, 2003. The Company may, in its discretion,
prospectively reduce the restriction period applicable to the Restricted Shares
and the period during which the Restricted Shares may be forfeited as
contemplated in Section 4 of this Agreement.
6. PERFORMANCE TARGETS. Notwithstanding any other provision of
this Agreement, any portion of the Award which has not expired shall become
nonforfeitable according to the following schedule:
(a) 20% of the Award shall be accelerated and become
nonforfeitable if the Common Stock attains a Fair Market Value of at least $4
per share for a period of no less than 30 consecutive days;
(b) an additional 40% of the Award shall be accelerated
and become nonforfeitable if the Common Stock attains a Fair Market Value of at
least $8 per share for a period of no less than 30 consecutive days; and
(c) the final 40% of the Award shall be accelerated and
become nonforfeitable if the Common Stock attains a Fair Market Value of at
least $12 per share for a period of not less than 30 consecutive days.
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All Common Stock prices in this Section 6 shall be adjusted as provided in
Section 7.
7. ADJUSTMENT PROVISIONS.
(a) ADJUSTMENT OF AWARD. Except as otherwise contemplated
in Section 7(b), in the event that, by reason of any merger, consolidation,
combination, liquidation, reorganization, recapitalization, stock dividend,
stock split, split-up, split-off, spin-off, combination of shares, exchange of
shares or other like change in capital structure of the Company (collectively, a
"Reorganization"), the Common Stock is substituted, combined, or changed into
cash, property, or other securities, or the shares of Common Stock is
substituted, combined, or changed into a greater or lesser number of shares of
Common Stock, the number and/or kind of shares and/or interests subject to the
Award and the per share price or value thereof shall be appropriately adjusted
by the Committee to give appropriate effect to such Reorganization. Any
fractional shares or interests resulting from such adjustment shall be
eliminated.
(b) CERTAIN CHANGES IN CONTROL. If a Change in Control
shall occur and such Change in Control constitutes a Non-Surviving Event, the
Committee shall (i) accelerate, to the Change in Control date, the time at which
the Award will become nonforfeitable and shall cause the Company to purchase the
accelerated portion of the Award at a price equal to the Change in Control Price
multiplied by the number of shares of Common Stock subject to the Award,
provided that in connection with the Change in Control shares of a Person
subject to 12(b) or 12(g) of the Exchange Act (a "Public Entity") are not
issuable or deliverable in exchange for Common Stock in whole or in part or (ii)
if a Public Entity remains following the Change in Control and as part of such
Non-Surviving Event shares of the Public Entity are issuable or deliverable, in
whole or in part, in exchange for Common Stock, then the Award shall thereafter
entitle you to that number of shares of stock of the Public Entity, other
securities, cash or property which a holder of the number of shares of Common
Stock subject to the Award would be entitled to in connection with the Change in
Control.
8. TERMINATION OF EMPLOYMENT.
(a) VOLUNTARY TERMINATION OTHER THAN FOR GOOD REASON AND
TERMINATION FOR CAUSE. Subject to Sections 5 and 6, if your employment
relationship with the Company or any of its Subsidiaries is terminated
voluntarily after one year from the date hereof, except in the case of
termination for Good Reason, or is terminated by the Company for Cause, then
that portion, if any, of this Award for which restrictions have not lapsed as of
the date of termination shall become null and void; provided, however, that the
portion, if any, of this Award for which restrictions have expired as of the
date of such termination shall survive such termination.
(b) VOLUNTARY TERMINATION FOR GOOD REASON OR INVOLUNTARY
OTHER THAN TERMINATION FOR CAUSE. Subject to Sections 5 and 6, if your
employment relationship with the Company or any of its Subsidiaries is
voluntarily terminated for Good Reason or is voluntarily terminated by you
within one year from the date hereof or is terminated by the Company other than
for Cause, then the restriction period for the Restricted Shares shall
immediately be accelerated and the restrictions shall expire.
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9. DEATH. Upon your death, the restriction period of the
Restricted Shares shall immediately be accelerated and the restrictions shall
expire.
10. DISABILITY. If your employment relationship is terminated by
reason of your Disability, then the restriction period of the Restricted Shares
shall immediately be accelerated and the restrictions shall expire.
11. LEAVE OF ABSENCE. With respect to the Award, the Company may,
in its sole discretion, determine that if you are on leave of absence for any
reason you will be considered to still be in the employ of the Company, provided
that rights to the Restricted Shares during a leave of absence will be limited
to the extent to which those rights were earned or vested when the leave of
absence began.
12. DELIVERY OF CERTIFICATES OF STOCK. Promptly following the
expiration of the restrictions on the Restricted Shares as contemplated in
Sections 5, 6, 8, 9 and 10 of this Agreement, the Company shall cause to be
issued and delivered to you or your designee a certificate representing the
number of Restricted Shares as to which restrictions have lapsed, free of any
restrictive legend relating to the lapsed restrictions, upon receipt by the
Company of any tax withholding as may be requested. The value of such Restricted
Shares shall not bear any interest owing to the passage of time.
13. CONDITIONS TO DELIVERY OF STOCK. Nothing herein shall require
the Company to issue any shares with respect to the Award if (a) that issuance
would, in the opinion of counsel for the Company, constitute a violation of the
Securities Act of 1933 or any similar or superseding statute or statutes, any
other applicable statute or regulation, or the rules of any applicable
securities exchange or securities association, as then in effect or (b) the
withholding obligation as provided in Section 19 has not been satisfied.
14. LEGEND REGARDING RESTRICTIONS ON TRANSFER. Each certificate
representing shares issued to you pursuant to this Agreement shall bear the
following legend with respect to the restrictions on transferability contained
in this Agreement:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY IMPOSED BY THAT CERTAIN AMENDED AND
RESTATED RESTRICTED STOCK AWARD AGREEMENT BETWEEN THE REGISTERED OWNER
HEREOF AND APERIAN, INC. DATED AS OF APRIL 6, 2001, AND MAY NOT BE
SOLD, TRANSFERRED OR OTHERWISE ALIENATED OR HYPOTHECATED EXCEPT AS
THEREIN PROVIDED. THE COMPANY WILL FURNISH A COPY OF SUCH AGREEMENT TO
THE RECORD HOLDER OF THIS CERTIFICATE WITHOUT CHARGE ON REQUEST TO THE
COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS OR REGISTERED OFFICE.
15. FURNISH INFORMATION. You agree to furnish to the Company all
information requested by the Company to enable it to comply with any reporting
or other requirement imposed upon the Company by or under any applicable statute
or regulation.
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16. REMEDIES. The parties to this Agreement shall be entitled to
recover from each other reasonable attorneys' fees incurred in connection with
the enforcement of the terms and provisions of this Agreement whether by an
action to enforce specific performance or for damages for its breach or
otherwise.
17. INFORMATION CONFIDENTIAL. As partial consideration for the
granting of the Award hereunder, you hereby agree with the Company that you will
keep confidential all information and knowledge, except that which has been
disclosed in any public filings required by law, that you have relating to the
terms and conditions of this Agreement; provided, however, that such information
may be disclosed as required by law and may be given in confidence to your
spouse, tax and financial advisors, or to a financial institution to the extent
that such information is necessary to secure a loan. In the event any breach of
this promise comes to the attention of the Company, it shall take into
consideration that breach in determining whether to recommend the grant of any
future similar award to you, as a factor militating against the advisability of
granting any such future award to you.
18. CONSIDERATION. No restriction on the Restricted Shares shall
lapse unless and until you have performed services for the Company or any of its
Subsidiaries that the Company believes is equal to or greater in value than the
par value of the Common Stock subject to this Award.
19. PAYMENT OF TAXES. The Company may from time to time, in its
discretion, require you to pay to the Company (or the Company's Subsidiary if
you are an employee of a Subsidiary of the Company), the amount that the Company
deems necessary to satisfy the Company's or its Subsidiary's current or future
obligation to withhold federal, state or local income or other taxes that you
incur as a result of the Award. With respect to any required tax withholding,
you may (a) direct the Company to withhold from the shares of Common Stock to be
issued to you the number of shares necessary to satisfy the Company's obligation
to withhold taxes, that determination to be based on the shares' Fair Market
Value at the time as of which such determination is made; (b) deliver to the
Company sufficient shares of Common Stock to satisfy the Company's tax
withholding obligations, based on the shares' Fair Market Value at the time as
of which such determination is made; or (c) deliver sufficient cash to the
Company to satisfy its tax withholding obligations. If you elect to use such a
stock withholding feature, you must make the election at the time and in the
manner that the Company prescribes. The Company may, at its sole option, deny
your request to satisfy withholding obligations through Common Stock instead of
cash. In the event the Company subsequently determines that the aggregate Fair
Market Value (as determined above) of any shares of Common Stock withheld as
payment of any tax withholding obligation is insufficient to discharge that tax
withholding obligation, then you shall pay to the Company, immediately upon the
Company's request, the amount of that deficiency.
20. PARACHUTE PAYMENTS. In the event that any payments to you
pursuant to this Agreement or any payment received by you or paid by the Company
on your behalf is treated as contingent on a change of ownership or control of
the Company or in the ownership of a substantial portion of the assets of the
Company or any Person affiliated with the Company (but only if such payment or
other benefit is in connection with your employment relationship with the
Company) (collectively, the "Total Value") shall result in you becoming liable
for the
8
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payment of any excise taxes pursuant to section 4999 of the Internal Revenue
Code of 1986, as amended (the "Code") ("Excise Tax"), you shall be entitled to
an additional payment equal to the amount of any Excise Taxes payable by you
pursuant to section 4999 of the Code as a result of such payments plus all
federal, state and local taxes applicable to the Company's payment of such
Excise Taxes, including any additional taxes due under section 4999 of the Code
with respect to payments made pursuant to this provision. The intent of this
Section 20 is to provide that the Company shall pay you an additional amount
(the "Gross-Up Payment") such that the net amount retained by you after
deduction: (a) of any Excise Tax imposed on the Total Value; and (b) of any
excess tax, federal, state or local income, payroll, and/or other taxes, imposed
on the Gross-Up Payment, shall equal the Total Value.
If you determine that you are liable for an Excise Tax with respect to
a payment or other benefit, you must promptly so notify the Company in writing.
Upon receipt of such notice from you, the Company must, within twenty (20) days
thereafter, either (i) notify you, in writing, that the Company agrees with your
determination of Excise Tax liability, in which case the Company shall become
obligated to immediately pay to you the Gross-Up Payment, or (ii) submit to you
an opinion, prepared by counsel of the Company's choice which counsel is
reasonably satisfactory to you, that you are not liable for the Excise Tax (the
"Tax Opinion"). If the Tax Opinion is provided to you and you nevertheless
choose not to contest the assertion of the Excise Tax, the Company shall be
relieved of its obligation to make the Gross-Up Payment specified hereunder. If
you choose to contest the assertion of the Excise Tax after receipt of the Tax
Opinion, you may do so with counsel of your choice that is reasonably
satisfactory to the Company and the reasonable legal fees and expenses of such
contest shall be paid by the Company, on a monthly basis, subject to the
Company's receipt of proper documentation therefore. If the Excise Tax is so
contested, then the Company shall pay to you the Gross-Up Payment upon the
earlier of ten (10) days after (A) the entry of a final judgment, decree, or
other order by a court of competent jurisdiction that you are liable for the
Excise Tax, or (B) a mutual determination of you and the Company not to proceed
further with the contest. The Company also shall reimburse you at that time for
any penalties and interest attributable to any delay in payment of the Excise
Tax that results from a decision by you not to pay the Excise Tax liability
based upon the Tax Opinion.
If the Internal Revenue Service ("IRS") notifies you in writing that
the Excise Tax will or may be assessed against you, if the Company provides you
with the Tax Opinion specified herein, and if you choose to contest the
assertion of the Excise Tax, then the Company shall obtain and deliver to you an
irrevocable standby letter of credit (the "Letter of Credit") issued by a bank
acceptable to you and the Company in an amount equal to the amount of the
Company's potential payment obligation herein, computed as if the Excise Tax
were paid to the IRS on the date the Letter of Credit was obtained. Immediately
upon the earlier of (1) a determination letter (within the meaning of section
1313 of the Code) that you are not liable for the Excise Tax, or (2) the
Company's payment to you of the full amount of its obligation herein, you shall
xxxx the Letter of Credit "canceled" and return it to the Company. In lieu of
such a Letter of Credit, the Company may choose to secure its obligations
hereunder by establishing an appropriate escrow account with terms reasonably
satisfactory to you, and by depositing therein the same amount as would be
required for the Letter of Credit. The obligations contained in this Section 21
shall survive the termination or expiration of your employment with the Company
and shall be fully enforceable thereafter.
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21. RIGHT OF THE COMPANY AND SUBSIDIARIES TO TERMINATE EMPLOYMENT.
Nothing contained in this Agreement shall confer upon you the right to continue
in the employ of the Company or any Subsidiary, or interfere in any way with the
rights of the Company or any Subsidiary to terminate your employment at any
time.
22. NO LIABILITY FOR GOOD FAITH DETERMINATIONS. The Company and
the members of the Board of Directors shall not be liable for any act, omission
or determination taken or made in good faith with respect to this Agreement or
the Restricted Shares granted hereunder.
23. NO GUARANTEE OF INTERESTS. The Board of Directors and the
Company do not guarantee the Common Stock of the Company from loss or
depreciation.
24. COMPANY RECORDS. Records of the Company or its Subsidiaries
regarding your period of employment, termination of employment and the reason
therefor, leaves of absence, re-employment, and other matters shall be
conclusive for all purposes hereunder, unless determined by the Company to be
incorrect.
25. COMPANY ACTION. Any action required of the Company shall be by
resolution of its Board of Directors or by a person authorized to act by
resolution of the Board of Directors.
26. SEVERABILITY. If any provision of this Agreement is held to be
illegal or invalid for any reason, the illegality or invalidity shall not affect
the remaining provisions hereof, but such provision shall be fully severable and
this Agreement shall be construed and enforced as if the illegal or invalid
provision had never been included herein.
27. NOTICES. Whenever any notice is required or permitted
hereunder, such notice must be in writing and personally delivered or sent by
mail. Any such notice required or permitted to be delivered hereunder shall be
deemed to be delivered on the date on which it is personally delivered, or,
whether actually received or not, on the third Business Day after it is
deposited in the United States mail, certified or registered, postage prepaid,
addressed to the person who is to receive it at the address which such person
has theretofore specified by written notice delivered in accordance herewith.
The Company or you may change, at any time and from time to time, by written
notice to the other, the address which it or he had previously specified for
receiving notices.
The Company and you agree that any notices shall be given to the
Company or to you at the following addresses:
Company or Board of Directors:
Aperian, Inc.
00000 Xxxx 0xx Xxxxxx
Xxxxxx, Xxxxx 00000
Attn: Corporate Secretary
Holder: At your current address as shown in the Company's records.
28. WAIVER OF NOTICE. Any person entitled to notice hereunder may
waive such notice.
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29. SUCCESSORS. This Agreement shall be binding upon you, your
legal representatives, heirs, legatees and distributees, and upon the Company,
its successors and assigns.
30. HEADINGS. The titles and headings of Sections are included for
convenience of reference only and are not to be considered in construction of
the provisions hereof.
31. GOVERNING LAW. All questions arising with respect to the
provisions of this Agreement shall be determined by application of the laws of
the State of Texas except to the extent Texas law is preempted by federal law.
The obligation of the Company to sell and deliver Common Stock hereunder is
subject to applicable laws and to the approval of any governmental authority
required in connection with the authorization, issuance, sale, or delivery of
such Common Stock.
32. WORD USAGE. Words used in the masculine shall apply to the
feminine where applicable, and wherever the context of this Agreement dictates,
the plural shall be read as the singular and the singular as the plural.
33. THE PLAN. This Agreement is subject to all the terms,
conditions, limitations and restrictions contained in the Plan. In the event of
any conflict or inconsistency between the terms hereof and the terms of the
Plan, the terms of the Plan shall be controlling.
34. GRANT SUBJECT TO AVAILABILITY. The grant, vesting and delivery
of any shares issued to you pursuant to this Agreement is subject to the
availability of shares under the Plan as the result of forfeitures, surrenders
of cancellations of existing grants on or after the date hereof or approval by
shareholders of the Company of an amendment to the Plan increasing the number of
shares that may be issued under the Plan. Any shares becoming available for
grant under the Plan as the result of forfeitures, surrenders or cancellations
shall, first be applied to grants that were issued before the date hereof (which
does not exceed 32,775) and than shall be allocated pro rata among grants made
under the Plan on the date hereof to you and Xxxxxx Xxxxx until none of such
grants are subject to this condition, and shall be allocated under each grant in
the order awards under such xxxxx xxxx. If any shares would otherwise vest while
subject to this condition, such shares will instead vest when such condition is
satisfied (even if you no longer are an employee of the Company on such date).
Shares which remain subject to this condition on the second anniversary of this
Agreement shall be void.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer on April 6, 2001 to be effective as of
the Date of Grant first above written.
APERIAN, INC..
By: ____________________________________
Name: Xxxxx X. Xxxxxxxx
Title: Vice President and Secretary
ACKNOWLEDGED AND AGREED:
By: ____________________________________
Name: Xxxxx Xxxxx
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EXHIBIT A-2
THE SHARES ISSUABLE PURSUANT TO THIS AGREEMENT ARE SUBJECT TO THE PROVISIONS OF
THE COMPANY"S 2000 STOCK OPTION PLAN AND THIS AGREEMENT IS ENTERED INTO PURSUANT
THERETO. A COPY OF SUCH PLAN IS AVAILABLE UPON WRITTEN REQUEST TO THE COMPANY AT
ITS PRINCIPAL EXECUTIVE OFFICES.
APERIAN, INC.
2000 STOCK OPTION PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
April 6, 2001
Xxxxx Xxxxx
Aperian, Inc.
0000 Xxxx 0xx Xxxxxx
Xxxxxx, Xxxxx 00000
Re: Grant of Stock Option
Dear Xx. Xxxxx:
The Board of Directors of Aperian, Inc. (the "Company") has adopted the
Company's 2000 Stock Option Plan (the "Plan"). A copy of the Plan is being
furnished to you concurrently with the execution of this Option Agreement and
shall be deemed a part of this Option Agreement as if fully set forth herein.
Unless the context otherwise requires, all terms defined in the Plan shall have
the same meaning when used herein.
1. The Grant.
Subject to the conditions set forth below, the Company hereby grants to
you, effective as of April 6, 2001 ("Grant Date"), as a matter of separate
inducement and not in lieu of any salary or other compensation for your
services, the right and option to purchase (the "Option"), in accordance with
the terms and conditions set forth herein and in the Plan, an aggregate of
121,000 shares of Common Stock of the Company (the "Option Shares"), at the
Exercise Price (as hereinafter defined). As used herein, the term "Exercise
Price" shall mean a price equal to $1.281 per share, subject to the adjustments
and limitations set forth herein and in the Plan. The Option granted hereunder
is intended to constitute a Non-Qualified Option within the meaning of the Plan;
however, you should consult with your tax advisor concerning the proper
reporting of any federal or state tax liability that may arise as a result of
the grant or exercise of the Option.
2. Exercise.
(a) Normal Vesting. For purposes of this Option
Agreement, the Option Shares shall be deemed "Nonvested Shares" unless and until
they have become "Vested Shares." Except
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as otherwise provided in subsection (b) below or Section 3, the Option Shares
shall become "Vested Shares" with respect to 1/3 of the Option Shares on October
6, 2001, an additional 1/3 of the Option Shares on April 6, 2002 and the final
1/3 of the Option Shares on April 6, 2003, provided that vesting shall cease
upon your ceasing to be an employee of the Company or a Related Entity as
expressly provided in Section 3 hereof.
(b) Accelerated Vesting. All Option Shares shall vest and
become exercisable in the event of your Involuntary Termination (as defined
below) within one year following a Change of Control. For purposes of this
Agreement, "Change in Control" means the first to occur of the following events:
(i) any sale, lease, exchange, or other transfer (in one transaction or series
of related transactions) of all or substantially all of the assets of the
Company to any person or group of related persons for purposes of section 13(d)
of the Exchange Act; (ii) a majority of the Board of Directors shall consist of
persons who are not Continuing Directors; (iii) the acquisition after the date
of this Agreement by any person or group of persons of the power, directly or
indirectly, to vote or direct the voting of securities having more than 50% of
the ordinary voting power for the election of directors of the Company; or (iv)
the approval by the shareholders of the Company of a merger or consolidation of
the Company with any other entity, other than a merger or consolidation which
would result in the voting securities of the Company outstanding immediately
prior thereto continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity or such surviving
entity's parent) at least fifty percent (50%) of the total voting power
represented by the voting securities of the Company or such surviving entity or
such surviving entity's parent outstanding immediately after such merger or
consolidation. "Continuing Director" shall mean, as of the date of
determination, any person who (i) was a member of the Board of Directors on the
date of this Agreement, or (ii) was nominated for election or elected to the
Board of Directors with the affirmative vote of a majority of the Continuing
Directors who were members of the Board of Directors at the time of such
nomination or election. "Involuntary Termination" means (i) a termination by the
Company of your relationship with the Company other than for Good Cause; (ii) a
material reduction of or variation in your duties, authority or
responsibilities, as compared to your duties, authority or responsibilities as
in effect immediately prior to such reduction or variation; (iii) a material
reduction by the Company in your base compensation as compared to the base
compensation in effect immediately prior to such reduction; (iv) a material
reduction by the Company in the kind or level of benefits, including bonuses, as
compared to the benefits to which you were entitled immediately prior to such
reduction, with the result that your overall benefits package is materially
reduced; or (v) your relocation to a facility or a location more than fifty (50)
miles from your then present location.
(c) Subject to the relevant provisions and limitations
contained herein and in the Plan, you may exercise the Option to purchase all or
a portion of the applicable number of Vested Shares at any time prior to the
termination of the Option pursuant to this Option Agreement. In no event shall
you be entitled to exercise the Option for any Nonvested Shares or for a
fraction of a Vested Share.
(d) The unexercised portion of the Option, if any, will
automatically, and without notice, terminate and become null and void upon the
expiration of ten (10) years from the Grant Date.
(e) Any exercise by you of the Option shall be in writing
addressed to the Secretary of the Company at its principal place of business (a
copy of the form of exercise to be used will be available upon written request
to the Secretary), and shall be accompanied by a certified or bank check payable
to the order of the Company in the full amount of the Exercise Price of the
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shares so purchased, or in such other manner as described in the Plan and
approved by the Committee.
The terms and provisions of the employment agreement, if any, between
you and the Company or any Related Entity (the "Employment Agreement") that
relate to or affect the Option are incorporated herein by reference.
Notwithstanding the foregoing provisions of this Section 2, in the event of any
conflict or inconsistency between the terms and conditions of this Section 2 and
the terms and conditions of the Employment Agreement, the terms and conditions
of the Employment Agreement shall be controlling.
3. Termination of Employment.
Upon the termination of your employment with the Company or any Related
Entity, you may, until the earlier of (x) one year from the date of such
termination or (y) the expiration of the Option in accordance with its terms,
exercise the Option with respect to all or any part of the Vested Shares which
you were entitled to purchase immediately prior to such termination and,
thereafter, the Option shall, to the extent not previously exercised,
automatically terminate and become null and void, provided that:
(a) in the case of termination of your employment with the Company
or any Related Entity due to death, your estate (or any Person
who acquired the right to exercise such Option by bequest or
inheritance or otherwise by reason of your death) may, until
the earlier of (x) the 181st day after the date of death (but
in no event prior to the 90th day after the date of death) or
(y) the expiration of the Option in accordance with its terms,
exercise the Option with respect to all or any part of the
Vested Shares which you were entitled to purchase immediately
prior to the time of your death;
(b) in the case of termination of your employment with the Company
or any Related Entity due to Disability, you or your legal
representative may, until the earlier of (x) the 181st day
after the date your employment was terminated (but in no event
prior to the 90th day after the date of such termination of
employment) or (y) the expiration of the Option in accordance
with its terms, exercise the Option with respect to all or any
part of the Vested Shares which you were entitled to purchase
immediately prior to the time of such termination;
(c) in the case of termination of your employment with the Company
or any Related Entity for Good Cause (as determined by the
Committee in its sole judgment in accordance with the Plan and
this Agreement), then you shall immediately forfeit your
rights under the Option except as to those Option Shares
already purchased.
Notwithstanding the foregoing provisions of this Section 3, in the
event of any conflict or inconsistency between the terms and conditions of this
Section 3 and the terms and conditions of the Employment Agreement, the terms
and conditions of the Employment Agreement shall be controlling.
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4. Transferability.
The Option and any rights or interests therein will be assignable or
transferable by you only as provided in the Plan and by will or the laws of
descent and distribution. Any Option Shares received upon exercise of this
Option are subject to the Company's Right of First Refusal (as defined in the
Plan).
5. Registration.
The Company shall not in any event be obligated to file any
registration statement under the Securities Act or any applicable state
securities laws to permit exercise of the Option or to issue any Common Stock in
violation of the Securities Act or any applicable state securities laws. You (or
in the event of your death or, in the event a legal representative has been
appointed in connection with your Disability, the Person exercising the Option)
shall, as a condition to your right to exercise the Option, deliver to the
Company an agreement or certificate containing such representations, warranties
and covenants as the Company may deem necessary or appropriate to ensure that
the issuance of the Option Shares pursuant to such exercise is not required to
be registered under the Securities Act or any applicable state securities laws.
Certificates for Option Shares, when issued, shall have substantially
the following legend, or statements of other applicable restrictions, endorsed
thereon, and may not be immediately transferable:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES
LAWS. THE SHARES MAY NOT BE OFFERED FOR SALE, SOLD, PLEDGED,
TRANSFERRED OR OTHERWISE DISPOSED OF UNTIL THE HOLDER HEREOF PROVIDES
EVIDENCE SATISFACTORY TO THE ISSUER (WHICH, IN THE DISCRETION OF THE
ISSUER, MAY INCLUDE AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER)
THAT SUCH OFFER, SALE, PLEDGE, TRANSFER OR OTHER DISPOSITION WILL NOT
VIOLATE APPLICABLE FEDERAL OR STATE LAWS.
The foregoing legend may not be required for Option Shares issued
pursuant to an effective, registration statement under the Securities Act and in
accordance with applicable state securities laws.
6. Withholding Taxes.
By acceptance hereof, you hereby (i) agree to reimburse the Company or
any Related Entity by which you are employed for any federal, state or local
taxes required by any government to be withheld or otherwise deducted by such
corporation in respect of your exercise of all or a portion of the Option, (ii)
authorize the Company or any Related Entity by which you are employed to
withhold from any cash compensation paid to you or on your behalf, an amount
sufficient to discharge any federal, state and local taxes imposed on the
Company, or the Related Entity by which you are employed, and which otherwise
has not been reimbursed by you, in respect of your exercise of all or a portion
of the Option, and (iii) agree that the Company may, in its discretion, hold the
stock certificate to which you are entitled upon exercise of the Option as
security for the payment of the aforementioned withholding tax liability, until
cash sufficient to pay that liability has been accumulated, and may, in its
discretion, effect such withholding by retaining shares issuable upon
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the exercise of the Option having a Fair Market Value on the date of exercise
which is equal to the amount to be withheld.
7. Adjustments.
In the event that, by reason of any merger, consolidation, combination,
liquidation, reorganization, recapitalization, stock dividend, stock split,
split-up, split-off, spin-off, combination of shares, exchange of shares or
other like change in capital structure of the Company (collectively, a
"Reorganization"), the Common Stock is substituted, combined, or changed into
any cash, property, or other securities, or the shares of Common Stock are
changed into a greater or lesser number of shares of Common Stock, the number
and/or kind of shares and/or interests subject to an Option and the per share
price or value thereof shall be appropriately adjusted by the Committee to give
appropriate effect to such Reorganization.
8. Miscellaneous.
(a) This Option Agreement is subject to all the terms,
conditions, limitations and restrictions contained in the Plan. In the event of
any conflict or inconsistency between the terms hereof and the terms of the
Plan, the terms of the Plan shall be controlling.
(b) This Option Agreement is not a contract of employment
and the terms of your employment shall not be affected by, or construed to be
affected by, this Option Agreement, except to the extent specifically provided
herein. Nothing herein shall impose, or be construed as imposing, any obligation
(i) on the part of the Company or any Related Entity to continue your
employment, or (ii) on your part to remain in the employ of the Company or any
Related Entity.
(c) This Option Agreement may be amended as provided in
the Plan.
9. Grant Subject to Availability.
The grant, vesting and delivery of any shares issued to you pursuant to
this Agreement is subject to the availability of shares under the Plan as the
result of forfeitures, surrenders of cancellations of existing grants on or
after the date hereof or approval by shareholders of the Company of an amendment
to the Plan increasing the number of shares that may be issued under the Plan.
Any shares becoming available for grant under the Plan as the result of
forfeitures, surrenders or cancellations shall, first be applied to grants that
were issued before the date hereof (which does not exceed 32,775) and then shall
be allocated pro rata among grants made under the Plan on the date hereof to you
and Xxxxxx Xxxxx until none of such grants are subject to this condition, and
shall be allocated under each grant in the order awards under such xxxxx xxxx.
If any shares would otherwise vest while subject to this condition, such shares
will instead vest when such condition is satisfied (even if you no longer are an
employee of the Company on such date). Shares which remain subject to this
condition on the second anniversary of this Agreement shall be void.
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Please indicate your acceptance of all the terms and conditions of the
Option and the Plan by signing and returning a copy of this Option Agreement.
Very truly yours,
APERIAN, INC.
By: ____________________________________
Name: Xxxxx X. Xxxxxxxx
Title: Secretary
ACCEPTED:
___________________________________
Xxxxx Xxxxx
Date: _________________, ____
