Exhibit 10.47
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Agreement
Between XxxxxxxxxXxx.xxx, Inc. and Xx Xxxxxx
THIS AGREEMENT (this "Agreement") is being made as of the 1/st/ day of March
2000 among XxxxxxxxxXxx.xxx, INC., a Nevada corporation having its principal
office at 000 Xxxx Xxxxx, Xxxxx 000, Xxxxxxxxx Xxxxxxx, Xx. 00000 ("Company");
and XXXXXX X. XXXXXX, an individual residing at 000 Xxxxx Xxxx Xxxx, Xxxxxxxx
Xxxx, Xxxxxxxxxxxxx 00000 ("Xxxxxx").
XxxxxxxxxXxx.xxx desires to engage Xxxxxx X. Xxxxxx (Xxxxxx") as its Chairman of
its Board of Directors for a term of three years and based on the considerations
in this Agreement Xxxxxx desires to serve as Chairman of XxxxxxxxxXxx.xxx's
Board of Directors for the indicated term.
Promptly after this agreement is executed, the Board of Directors of
XxxxxxxxxXxx.xxx (the "Board") shall appoint Xxxxxx to serve as a member of the
Board. Thereafter, for so long as this Agreement is in effect, the Company shall
cause Xxxxxx to be nominated as a Board-endorsed nominee for election by the
stockholders of the Company at the expiration of his term.
1. Scope of Services. As chairman of XxxxxxxxxXxx.xxx,Inc.'s Board of
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Directors Xxxxxx will be responsible for conducting monthly Board meetings
and advising the BOD and CEO on strategic matters. Xxxxxx'x role will not
include day-to-day operations or issues. It is anticipated that Xxxxxx will
spend up to two days per month working on XxxxxxxxxXxx.xxx business. If
Xxxxxx'x services require him to spend more that two days per month, then
he will be compensated on a per diem basis.
2. Stock Options. In consideration of the first year of service, Xxxxxx is
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hereby granted a seven-year option (the "Option") to acquire 750,000 shares
of common stock, at an exercise price equal to $4.50 per share. The Option
shall vest and be fully exercisable immediately as to 1/3 of the shares;
and the remaining shares shall vest in twelve (12) equal monthly
installments on the first day of each calendar month commencing after the
execution of this Agreement.
At the commencement of the second year of service, Xxxxxx shall be granted
an additional seven year option to purchase 200,000 shares of common stock
at an exercise price of $4.50 per share. The option shall vest in twenty
four (24) equal monthly installments on the first day of each calendar
month after Xxxxxx'x first anniversary of service.
The shares underlying the Options will be promptly registered under a
registration statement on Form S-8 promptly following the execution of this
Agreement.
The 950,000 Options set forth herein are subject to accelerated vesting upon a
Change of Control (as defined in Section 7 of this Agreement). In the event of a
Change of Control, all options shall be deemed granted and shall automatically
become fully vested and exercisable. Xxxxxx'x Option strike price and number of
shares will be adjusted for all splits to common and or Preferred Shares.
3. Non-Exclusive. Xxxxxx may serve as an employee, consultant or on the Board of
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Directors (or other similar body) of any other organization. Xxxxxx shall not
serve as an employee, consultant or on the Board of Directors (or other similar
body) of an organization that directly competes with the Company.
4. Compensation. The following are the fees the Company will pay Xxxxxx for
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his services:
Board meetings: $2,500 per meeting
Per Diem: $2,500 plus any expenses
All fees will be paid within 30 days from when they occur.
5. Expenses. Reimbursement for reasonable travel, legal and other out-of-pocket
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expenses incurred in the performance of his duties hereunder shall be paid upon
submission of written statements and bills.
6. Indemnification. To the fullest extent permitted by law, the Company shall
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indemnify Xxxxxx for all amounts (including, without limitation, judgments,
fines, settlement payments, losses, damages, costs and expenses, including
reasonable attorneys' fees) incurred or paid by Xxxxxx in connection with any
action, proceeding, suit or investigation arising out of or relating to the
performance by Xxxxxx of services for, or acting as a director, or
representative of, XxxxxxxxxXxx.xxx or any subsidiary thereof. In addition,
during the Term, XxxxxxxxxXxx.xxx shall maintain directors' and officers'
insurance on behalf of Xxxxxx on the same basis as that maintained for other
directors and officers of the Company with a minimum of $10,000,000.
7. Change in Control. For purposes of this Agreement, a "Change in Control"
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shall be deemed to have occurred if:
(A) any "person," as such term is used in Section 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") (other than (1)
XxxxxxxxxXxx.xxx, (2) any trustee or other fiduciary holding securities under an
employee benefit plan of XxxxxxxxxXxx.xxx or (3) any corporation owned, directly
or indirectly, by the stockholders of XxxxxxxxxXxx.xxx in substantially the same
proportion as their ownership of Shares), is or becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of XxxxxxxxxXxx.xxx representing 30% or more of the combined voting
power of XxxxxxxxxXxx.xxx's then outstanding voting securities;
(B) individuals, who upon the execution of this Agreement, constitute the Board,
and any new director whose election by the Board or nomination for election by
the Board or nomination for election by the Board or nomination for election by
XxxxxxxxxXxx.xxx's
stockholders was approved by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors at the beginning of the
period or whose election or nomination for election was previously so approved,
cease for any reason to constitute at least a majority thereof;
(C) the stockholders of XxxxxxxxxXxx.xxx approve a merger or consolidation of
the Company with any other corporation, other than (1) a merger or consolidation
that would result in the voting securities of XxxxxxxxxXxx.xxx outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving or
parent entity) a majority of the voting securities of XxxxxxxxxXxx.xxx or such
surviving or parent entity outstanding immediately after such merger or
consolidation or (2) a merger or consolidation effected to implement a
recapitalization of XxxxxxxxxXxx.xxx (or similar transaction) in which no
"person" (as hereinabove defined) acquires 30% or more of the combined voting
power of XxxxxxxxxXxx.xxx's then outstanding securities;
(D) the stockholders of XxxxxxxxxXxx.xxx approve a plan of complete liquidation
of XxxxxxxxxXxx.xxx or an agreement for the sale or disposition by
XxxxxxxxxXxx.xxx of all or substantially all of XxxxxxxxxXxx.xxx's assets (or
any transaction having a similar effect).
8. Termination. Either party may terminate this agreement at any time. If Xxxxxx
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terminates this Agreement he will be entitled to exercise all vested Stock
Options according to the terms of this Agreement. If XxxxxxxxxXxx.xxx terminates
this agreement, any unvested Stock Options which would have vested by the end of
the year of service in which the termination occurs shall become fully vested
and exercisable under the terms of this Agreement
9. Arbitration. Any dispute or controversy arising under or in connection with
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this Agreement shall be settled exclusively by arbitration, conducted before a
single arbitrator but, if Xxxxxx and XxxxxxxxxXxx.xxx fail to agree on a single
arbitrator within ten (10) days after a notice of dispute by one given to the
other, a panel of three arbitrators, one of which shall be selected by each of
them and the third of which shall be selected by the two arbitrators selected by
the parties, in Boston, Massachusetts, or in such other location as may be
agreed upon by the parties, in accordance with the rules of the American
Arbitration Association then in effect. The prevailing party in such arbitration
shall be reimbursed for his or its reasonable attorneys' fees and expenses
incurred in such proceeding as determined by the arbitrators.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
first written above.
XxxxxxxxxXxx.xxx, Inc.
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Chief Executive Officer
/s/ Xxxxxx Xxxxxx
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Xxxxxx X. Xxxxxx
