1
EXHIBIT 10.2
ADDENDUM TO KEY EMPLOYEE RETENTION AGREEMENT
The following shall constitute an Addendum to the Key Employee Retention
Agreement between Xxxxx X. Xxxxxxxxxx ("Employee") and Xxxx.xxx, Inc. (the
"Company") dated April 17, 2000.
RECITALS
A. On April 17, 2000, Employee entered into a Key Employee Retention
Agreement with the Company (the "Retention Agreement"), a copy of which is
attached as Exhibit A to this Addendum.
B. On October 9, 2000, the Compensation Committee of the Board of the
Directors of the Company agreed to modify certain terms of the Retention
Agreement to provide that the benefits payable to Employee in the event of a
Change of Control shall also be payable in the event of a Liquidation of the
Company (as defined below), with such modifications taking effect as set forth
in this Addendum. All other provisions of the Retention Agreement that are not
modified by this Addendum remain in full force and effect.
NOW, THEREFORE, pursuant to the terms of the Retention Agreement, and in
consideration of the mutual promises, covenants and conditions hereinafter set
forth, the parties hereto mutually agree as follows:
1. Section 1 of the Retention Agreement is hereby amended such that
Section 1 now provides in its entirety as follows:
"Term of Agreement". This Agreement shall terminate upon the
earlier of: (a) the termination of Employee's employment for any reason prior to
a Change of Control or prior to and not in connection with a Liquidation, or (b)
the date that all obligations of the parties hereto with respect to this
Agreement have been satisfied.
2. Section 2 of the Retention Agreement is hereby amended such that
Section 2 now provides in its entirety as follows:
"At-Will Employment". The Company and the Employee acknowledge
that the Employee's employment is and shall continue to be at-will, as defined
under applicable law. If the Employee's employment terminates for any reason
prior to a Change of Control or prior to and not in connection with a
Liquidation, the Employee shall not be entitled to the benefits provided by this
Agreement, or any other benefits unless otherwise available in accordance with
the Company's established employee plans and practices or pursuant to other
agreements with the Company.
2
3. Section 3 of the Retention Agreement is hereby amended such that
Section 3 now provides in its entirety as follows:
"Separation Benefits upon Involuntary Termination following a
Change of Control or as a Result of the Company's Decision to Commence a
Liquidation. If within one year of the effective date of a Change of Control or
as a result of the Company's decision to commence a Liquidation, the Employee's
employment with the Company is terminated as a result of an Involuntary
Termination by the Company or the successor corporation without Cause or by the
Employee as the result of a Constructive Termination by the Company or the
successor corporation, then, subject to Section 4, Employee shall be entitled to
receive the following benefits: (i) severance payments for a period of twelve
(12) months following the termination date (the "Severance Period") equal to the
Employee's then current monthly base salary; (ii) a pro-rated amount of the
Employee's "target bonus" for the fiscal year in which the termination occurs
(or for the prior fiscal year if a target bonus has not yet been determined for
the fiscal year in which the termination occurs), with such payment being made
on the termination date; and (iii) continuation of all health and life insurance
benefits through the end of the Severance Period, at Company expense. Severance
payments under this Section 3 shall be reduced by applicable taxes and shall be
made in accordance with the Company's regular payroll practices."
4. Section 5 of the Retention Agreement is hereby amended to add a new
subsection (d) which reads as follows:
(d) LIQUIDATION. "Liquidation" shall mean a complete liquidation,
dissolution or winding up of the Company.
5. Entire Agreement. Sections 1, 2, 3 and 5 of the Retention Agreement
are modified by the provisions of this Addendum. Except as so modified, the
Retention Agreement shall remain in full force and effect. In the event of any
conflict between this Addendum and the Retention Agreement, this Addendum shall
govern. This Addendum and the Retention Agreement constitute the entire
agreement between Employee and the Company regarding the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be
duly executed as of the day and year written below.
3
XXXX.XXX, INC.
By: /s/ Xxxxx Xxxx
---------------------------------
Title: President
------------------------------
Date: October ___, 2000
Xxxxx X. Xxxxxxxxxx, an individual
/s/ Xxxxx X. Xxxxxxxxxx
------------------------------------
Date: October ____, 2000
ADDENDUM TO KEY EMPLOYEE RETENTION AGREEMENT
The following shall constitute an Addendum to the Key Employee Retention
Agreement between Xxxxxxxxxxx X. Xxxx ("Employee") and Xxxx.xxx, Inc. (the
"Company") dated April 17, 2000.
RECITALS
A. On April 17, 2000, Employee entered into a Key Employee Retention
Agreement with the Company (the "Retention Agreement"), a copy of which is
attached as Exhibit A to this Addendum.
B. On October 9, 2000, the Compensation Committee of the Board of
the Directors of the Company agreed to modify certain terms of the Retention
Agreement to provide that the benefits payable to Employee in the event of a
Change of Control shall also be payable in the event of a Liquidation of the
Company (as defined below), with such modifications taking effect as set forth
in this Addendum. All other provisions of the Retention Agreement that are not
modified by this Addendum remain in full force and effect.
NOW, THEREFORE, pursuant to the terms of the Retention Agreement, and in
consideration of the mutual promises, covenants and conditions hereinafter set
forth, the parties hereto mutually agree as follows:
1. Section 1 of the Retention Agreement is hereby amended such that
Section 1 now provides in its entirety as follows:
4
"Term of Agreement". This Agreement shall terminate upon the
earlier of: (a) the termination of Employee's employment for any reason prior to
a Change of Control or prior to and not in connection with a Liquidation, or (b)
the date that all obligations of the parties hereto with respect to this
Agreement have been satisfied.
2. Section 2 of the Retention Agreement is hereby amended such that
Section 2 now provides in its entirety as follows:
"At-Will Employment". The Company and the Employee acknowledge
that the Employee's employment is and shall continue to be at-will, as defined
under applicable law. If the Employee's employment terminates for any reason
prior to a Change of Control or prior to and not in connection with a
Liquidation, the Employee shall not be entitled to the benefits provided by this
Agreement, or any other benefits unless otherwise available in accordance with
the Company's established employee plans and practices or pursuant to other
agreements with the Company.
3. Section 3 of the Retention Agreement is hereby amended such that
Section 3 now provides in its entirety as follows:
"Separation Benefits upon Involuntary Termination following a
Change of Control or as a Result of the Company's Decision to Commence a
Liquidation. If within one year of the effective date of a Change of Control or
as a result of the Company's decision to commence a Liquidation, the Employee's
employment with the Company is terminated as a result of an Involuntary
Termination by the Company or the successor corporation without Cause or by the
Employee as the result of a Constructive Termination by the Company or the
successor corporation, then, subject to Section 4, Employee shall be entitled to
receive the following benefits: (i) severance payments for a period of twelve
(12) months following the termination date (the "Severance Period") equal to the
Employee's then current monthly base salary; (ii) a pro-rated amount of the
Employee's "target bonus" for the fiscal year in which the termination occurs
(or for the prior fiscal year if a target bonus has not yet been determined for
the fiscal year in which the termination occurs), with such payment being made
on the termination date; and (iii) continuation of all health and life insurance
benefits through the end of the Severance Period, at Company expense. Severance
payments under this Section 3 shall be reduced by applicable taxes and shall be
made in accordance with the Company's regular payroll practices."
4. Section 5 of the Retention Agreement is hereby amended to add a new
subsection (d) which reads as follows:
(d) LIQUIDATION. "Liquidation" shall mean a complete
liquidation, dissolution or winding up of the Company.
5. Entire Agreement. Sections 1, 2, 3 and 5 of the Retention Agreement
are modified by the provisions of this Addendum. Except as so modified, the
Retention Agreement shall remain in full force and effect. In the event of any
conflict between this Addendum and the Retention Agreement, this Addendum shall
govern. This Addendum and the Retention
5
Agreement constitute the entire agreement between Employee and the Company
regarding the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be
duly executed as of the day and year written below.
XXXX.XXX, INC.
By: Xxxxx Xxxxxxxxxx
--------------------------------------
Title: CEO
-----------------------------------
Date: October ___, 2000
Xxxxxxxxxxx X. Xxxx, an individual
/s/ Xxxxxxxxxxx X. Xxxx
-----------------------------------------
Date: October ____, 2000
ADDENDUM TO KEY EMPLOYEE RETENTION AGREEMENT
The following shall constitute an Addendum to the Key Employee Retention
Agreement between Xxxx Xxxxx ("Employee") and Xxxx.xxx, Inc. (the "Company")
dated April 17, 2000.
RECITALS
A. On April 17, 2000, Employee entered into a Key Employee Retention
Agreement with the Company (the "Retention Agreement"), a copy of which is
attached as Exhibit A to this Addendum.
B. On October 9, 2000, the Compensation Committee of the Board of
the Directors of the Company agreed to modify certain terms of the Retention
Agreement to provide that the benefits payable to Employee in the event of a
Change of Control shall also be payable in the event of a Liquidation of the
Company (as defined below), with such modifications taking effect as set forth
in this Addendum. All other provisions of the Retention Agreement that are not
modified by this Addendum remain in full force and effect.
6
NOW, THEREFORE, pursuant to the terms of the Retention Agreement, and in
consideration of the mutual promises, covenants and conditions hereinafter set
forth, the parties hereto mutually agree as follows:
1. Section 1 of the Retention Agreement is hereby amended such that
Section 1 now provides in its entirety as follows:
"Term of Agreement". This Agreement shall terminate upon the
earlier of: (a) the termination of Employee's employment for any reason prior to
a Change of Control or prior to and not in connection with a Liquidation, or (b)
the date that all obligations of the parties hereto with respect to this
Agreement have been satisfied.
2. Section 2 of the Retention Agreement is hereby amended such that
Section 2 now provides in its entirety as follows:
"At-Will Employment". The Company and the Employee acknowledge
that the Employee's employment is and shall continue to be at-will, as defined
under applicable law. If the Employee's employment terminates for any reason
prior to a Change of Control or prior to and not in connection with a
Liquidation, the Employee shall not be entitled to the benefits provided by this
Agreement, or any other benefits unless otherwise available in accordance with
the Company's established employee plans and practices or pursuant to other
agreements with the Company.
3. Section 3 of the Retention Agreement is hereby amended such that
Section 3 now provides in its entirety as follows:
"Separation Benefits upon Involuntary Termination following a
Change of Control or as a Result of the Company's Decision to Commence a
Liquidation. If within one year of the effective date of a Change of Control or
as a result of the Company's decision to commence a Liquidation, the Employee's
employment with the Company is terminated as a result of an Involuntary
Termination by the Company or the successor corporation without Cause or by the
Employee as the result of a Constructive Termination by the Company or the
successor corporation, then, subject to Section 4, Employee shall be entitled to
receive the following benefits: (i) severance payments for a period of six (6)
months following the termination date (the "Severance Period") equal to the
Employee's then current monthly base salary; (ii) a pro-rated amount of the
Employee's "target bonus" for the fiscal year in which the termination occurs
(or for the prior fiscal year if a target bonus has not yet been determined for
the fiscal year in which the termination occurs), with such payment being made
on the termination date; and (iii) continuation of all health and life insurance
benefits through the end of the Severance Period, at Company expense. Severance
payments under this Section 3 shall be reduced by applicable taxes and shall be
made in accordance with the Company's regular payroll practices."
4. Section 5 of the Retention Agreement is hereby amended to add a new
subsection (d) which reads as follows:
7
(d) LIQUIDATION. "Liquidation" shall mean a complete
liquidation, dissolution or winding up of the Company.
5. Entire Agreement. Sections 1, 2, 3 and 5 of the Retention
Agreement are modified by the provisions of this Addendum. Except as so
modified, the Retention Agreement shall remain in full force and effect. In the
event of any conflict between this Addendum and the Retention Agreement, this
Addendum shall govern. This Addendum and the Retention Agreement constitute the
entire agreement between Employee and the Company regarding the subject matter
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be
duly executed as of the day and year written below.
XXXX.XXX, INC.
By: Xxxxx Xxxxxxxxxx
------------------------------------
Title: CEO
---------------------------------
Date: October ___, 2000
Xxxx Xxxxx, an individual
/s/ Xxxx Xxxxx
---------------------------------------
Xxxx Xxxxx
Date: October ____, 2000
ADDENDUM TO KEY EMPLOYEE RETENTION AGREEMENT
The following shall constitute an Addendum to the Key Employee Retention
Agreement between Xxxx Xxxxxxxx ("Employee") and Xxxx.xxx, Inc. (the "Company")
dated April 17, 2000.
RECITALS
A. On April 17, 2000, Employee entered into a Key Employee Retention
Agreement with the Company (the "Retention Agreement"), a copy of which is
attached as Exhibit A to this Addendum.
8
B. On October 9, 2000, the Compensation Committee of the Board of the
Directors of the Company agreed to modify certain terms of the Retention
Agreement to provide that the benefits payable to Employee in the event of a
Change of Control shall also be payable in the event of a Liquidation of the
Company (as defined below), with such modifications taking effect as set forth
in this Addendum. All other provisions of the Retention Agreement that are not
modified by this Addendum remain in full force and effect.
NOW, THEREFORE, pursuant to the terms of the Retention Agreement, and in
consideration of the mutual promises, covenants and conditions hereinafter set
forth, the parties hereto mutually agree as follows:
1. Section 1 of the Retention Agreement is hereby amended such that
Section 1 now provides in its entirety as follows:
"Term of Agreement". This Agreement shall terminate upon the
earlier of: (a) the termination of Employee's employment for any reason prior to
a Change of Control or prior to and not in connection with a Liquidation, or (b)
the date that all obligations of the parties hereto with respect to this
Agreement have been satisfied.
2. Section 2 of the Retention Agreement is hereby amended such that
Section 2 now provides in its entirety as follows:
"At-Will Employment". The Company and the Employee acknowledge
that the Employee's employment is and shall continue to be at-will, as defined
under applicable law. If the Employee's employment terminates for any reason
prior to a Change of Control or prior to and not in connection with a
Liquidation, the Employee shall not be entitled to the benefits provided by this
Agreement, or any other benefits unless otherwise available in accordance with
the Company's established employee plans and practices or pursuant to other
agreements with the Company.
3. Section 3 of the Retention Agreement is hereby amended such that
Section 3 now provides in its entirety as follows:
"Separation benefits upon Involuntary Termination
following a Change of Control or as a Result of the Company's Decision to
Commence a Liquidation.
(a) ACCELERATED VESTING. If within one year of the effective date
of a Change of Control or as a result of the Company's decision to commence a
Liquidation, the Employee's employment with the Company is terminated (an
"Involuntary Termination") by the Company or the successor corporation without
Cause or by the Employee as the result of a Constructive Termination by the
Company or the successor corporation, then, subject to the limitations in this
Section 3(a) and Section 4 below, the vesting of 25% of Employee's then unvested
shares of the Company's common stock shall automatically be accelerated so as to
become vested as of the effective date of the Involuntary Termination or
Constructive Termination. Notwithstanding the above, in the event that the
Company commences substantive discussions with a potential acquiror prior to
January 1, 2001 and such substantive discussions result in a Change of Control
9
of the Company, the stock acceleration benefits described above shall not apply
to the Employee's unvested option shares. The original vesting schedule(s) of
the Employee's option shares would then apply.
(b) SEVERANCE PAYMENT. If within one year of the effective date
of a Change of Control or as a result of the Company's decision to commence a
Liquidation, the Employee's employment with the Company is terminated as a
result of an Involuntary Termination by the Company or the successor corporation
without Cause or by the Employee as the result of a Constructive Termination by
the Company or the successor corporation, then, subject to Section 4 below,
Employee shall be entitled to receive the following benefits: (i) severance
payments for a period of six (6) months following the termination date (the
"Severance Period") equal to the Employee's then current monthly base salary;
(ii) a pro-rated amount of the Employee's "target bonus" for the fiscal year in
which the termination occurs (or for the prior fiscal year if a target bonus has
not yet been determined for the fiscal year in which the termination occurs),
with such payment being made on the termination date; and (iii) continuation of
all health and life insurance benefits through the end of the Severance Period,
at Company expense. Severance payments under this Section 3(b) shall be reduced
by applicable taxes and shall be made in accordance with the Company's regular
payroll practices."
4. Section 5 of the Retention Agreement is hereby amended to add a new
subsection (d) which reads as follows:
(d) LIQUIDATION. "Liquidation" shall mean a complete
liquidation, dissolution or winding up of the Company.
5. Entire Agreement. Sections 1, 2, 3 and 5 of the Retention
Agreement are modified by the provisions of this Addendum. Except as so
modified, the Retention Agreement shall remain in full force and effect. In the
event of any conflict between this Addendum and the Retention Agreement, this
Addendum shall govern. This Addendum and the Retention Agreement constitute the
entire agreement between Employee and the Company regarding the subject matter
hereof.
10
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be
duly executed as of the day and year written below.
XXXX.XXX, INC.
By: Xxxxx Xxxxxxxxxx
----------------------------------------
Title: CEO
-------------------------------------
Date: October ___, 2000
Xxxx Xxxxxxxx, an individual
/s/ Xxxx Xxxxxxxx
-------------------------------------------
Xxxx Xxxxxxxx
Date: October ____, 2000
ADDENDUM TO KEY EMPLOYEE RETENTION AGREEMENT
The following shall constitute an Addendum to the Key Employee Retention
Agreement between Xxxx Xxxxxx ("Employee") and Xxxx.xxx, Inc. (the "Company")
dated April 17, 2000.
RECITALS
A. On April 17, 2000, Employee entered into a Key Employee Retention
Agreement with the Company (the "Retention Agreement"), a copy of which is
attached as Exhibit A to this Addendum.
B. On October 9, 2000, the Compensation Committee of the Board of the
Directors of the Company agreed to modify certain terms of the Retention
Agreement to provide that the benefits payable to Employee in the event of a
Change of Control shall also be payable in the event of a Liquidation of the
Company (as defined below), with such modifications taking effect as set forth
in this Addendum. All other provisions of the Retention Agreement that are not
modified by this Addendum remain in full force and effect.
11
NOW, THEREFORE, pursuant to the terms of the Retention Agreement, and in
consideration of the mutual promises, covenants and conditions hereinafter set
forth, the parties hereto mutually agree as follows:
1. Section 1 of the Retention Agreement is hereby amended such that
Section 1 now provides in its entirety as follows:
"Term of Agreement". This Agreement shall terminate upon the
earlier of: (a) the termination of Employee's employment for any reason prior to
a Change of Control or prior to and not in connection with a Liquidation, or (b)
the date that all obligations of the parties hereto with respect to this
Agreement have been satisfied.
2. Section 2 of the Retention Agreement is hereby amended such that
Section 2 now provides in its entirety as follows:
"At-Will Employment". The Company and the Employee acknowledge
that the Employee's employment is and shall continue to be at-will, as defined
under applicable law. If the Employee's employment terminates for any reason
prior to a Change of Control or prior to and not in connection with a
Liquidation, the Employee shall not be entitled to the benefits provided by this
Agreement, or any other benefits unless otherwise available in accordance with
the Company's established employee plans and practices or pursuant to other
agreements with the Company.
3. Section 3 of the Retention Agreement is hereby amended such that
Section 3 now provides in its entirety as follows:
"Separation benefits upon Involuntary Termination
following a Change of Control or as a Result of the Company's Decision to
Commence a Liquidation.
(a) ACCELERATED VESTING. If within one year of the effective date
of a Change of Control or as a result of the Company's decision to commence a
Liquidation, the Employee's employment with the Company is terminated (an
"Involuntary Termination") by the Company or the successor corporation without
Cause or by the Employee as the result of a Constructive Termination by the
Company or the successor corporation, then, subject to the limitations in this
Section 3(a) and Section 4 below, the vesting of 25% of Employee's then unvested
shares of the Company's common stock shall automatically be accelerated so as to
become vested as of the effective date of the Involuntary Termination or
Constructive Termination. Notwithstanding the above, in the event that the
Company commences substantive discussions with a potential acquiror prior to
January 1, 2001 and such substantive discussions result in a Change of Control
of the Company, the stock acceleration benefits described above shall not apply
to the Employee's unvested option shares. The original vesting schedule(s) of
the Employee's option shares would then apply.
(b) SEVERANCE PAYMENT. If within one year of the effective date
of a Change of Control or as a result of the Company's decision to commence a
Liquidation, the Employee's employment with the Company is terminated as a
result of an Involuntary Termination by the
12
Company or the successor corporation without Cause or by the Employee as the
result of a Constructive Termination by the Company or the successor
corporation, then, subject to Section 4 below, Employee shall be entitled to
receive the following benefits: (i) severance payments for a period of six (6)
months following the termination date (the "Severance Period") equal to the
Employee's then current monthly base salary; (ii) a pro-rated amount of the
Employee's "target bonus" for the fiscal year in which the termination occurs
(or for the prior fiscal year if a target bonus has not yet been determined for
the fiscal year in which the termination occurs), with such payment being made
on the termination date; and (iii) continuation of all health and life insurance
benefits through the end of the Severance Period, at Company expense. Severance
payments under this Section 3(b) shall be reduced by applicable taxes and shall
be made in accordance with the Company's regular payroll practices."
4. Section 5 of the Retention Agreement is hereby amended to add a new
subsection (d) which reads as follows:
(d) LIQUIDATION. "Liquidation" shall mean a complete
liquidation, dissolution or winding up of the Company.
5. Entire Agreement. Sections 1, 2, 3 and 5 of the Retention
Agreement are modified by the provisions of this Addendum. Except as so
modified, the Retention Agreement shall remain in full force and effect. In the
event of any conflict between this Addendum and the Retention Agreement, this
Addendum shall govern. This Addendum and the Retention Agreement constitute the
entire agreement between Employee and the Company regarding the subject matter
hereof.
13
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be
duly executed as of the day and year written below.
XXXX.XXX, INC.
By: Xxxxx Xxxxxxxxxx
---------------------------------------
Title: CEO
------------------------------------
Date: October ___, 2000
Xxxx Xxxxxx, an individual
Xxxx Xxxxxx
------------------------------------------
Xxxx Xxxxxx
Date: October ____, 2000
ADDENDUM TO KEY EMPLOYEE RETENTION AGREEMENT
The following shall constitute an Addendum to the Key Employee Retention
Agreement between Xxxxx X. Xxxxxxx ("Employee") and Xxxx.xxx, Inc. (the
"Company") dated April 17, 2000.
RECITALS
A. On April 17, 2000, Employee entered into a Key Employee Retention
Agreement with the Company (the "Retention Agreement"), a copy of which is
attached as Exhibit A to this Addendum.
B. On October 9, 2000, the Compensation Committee of the Board of the
Directors of the Company agreed to modify certain terms of the Retention
Agreement to provide that the benefits payable to Employee in the event of a
Change of Control shall also be payable in the event of a Liquidation of the
Company (as defined below), with such modifications taking effect as set forth
in this Addendum. All other provisions of the Retention Agreement that are not
modified by this Addendum remain in full force and effect.
14
NOW, THEREFORE, pursuant to the terms of the Retention Agreement, and in
consideration of the mutual promises, covenants and conditions hereinafter set
forth, the parties hereto mutually agree as follows:
1. Section 1 of the Retention Agreement is hereby amended such that
Section 1 now provides in its entirety as follows:
"Term of Agreement". This Agreement shall terminate upon the
earlier of: (a) the termination of Employee's employment for any reason prior to
a Change of Control or prior to and not in connection with a Liquidation, or (b)
the date that all obligations of the parties hereto with respect to this
Agreement have been satisfied.
2. Section 2 of the Retention Agreement is hereby amended such that
Section 2 now provides in its entirety as follows:
"At-Will Employment". The Company and the Employee acknowledge
that the Employee's employment is and shall continue to be at-will, as defined
under applicable law. If the Employee's employment terminates for any reason
prior to a Change of Control or prior to and not in connection with a
Liquidation, the Employee shall not be entitled to the benefits provided by this
Agreement, or any other benefits unless otherwise available in accordance with
the Company's established employee plans and practices or pursuant to other
agreements with the Company.
3. Section 3 of the Retention Agreement is hereby amended such that
Section 3 now provides in its entirety as follows:
"Separation Benefits upon Involuntary Termination following a
Change of Control or as a Result of the Company's Decision to Commence a
Liquidation. If within one year of the effective date of a Change of Control or
as a result of the Company's decision to commence a Liquidation, the Employee's
employment with the Company is terminated as a result of an Involuntary
Termination by the Company or the successor corporation without Cause or by the
Employee as the result of a Constructive Termination by the Company or the
successor corporation, then, subject to Section 4, Employee shall be entitled to
receive the following benefits: (i) severance payments for a period of twelve
(12) months following the termination date (the "Severance Period") equal to the
Employee's then current monthly base salary; (ii) a pro-rated amount of the
Employee's "target bonus" for the fiscal year in which the termination occurs
(or for the prior fiscal year if a target bonus has not yet been determined for
the fiscal year in which the termination occurs), with such payment being made
on the termination date; and (iii) continuation of all health and life insurance
benefits through the end of the Severance Period, at Company expense. Severance
payments under this Section 3 shall be reduced by applicable taxes and shall be
made in accordance with the Company's regular payroll practices."
4. Section 5 of the Retention Agreement is hereby amended to add a new
subsection (d) which reads as follows:
15
(d) LIQUIDATION. "Liquidation" shall mean a complete
liquidation, dissolution or winding up of the Company.
5. Entire Agreement. Sections 1, 2, 3 and 5 of the Retention
Agreement are modified by the provisions of this Addendum. Except as so
modified, the Retention Agreement shall remain in full force and effect. In the
event of any conflict between this Addendum and the Retention Agreement, this
Addendum shall govern. This Addendum and the Retention Agreement constitute the
entire agreement between Employee and the Company regarding the subject matter
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be
duly executed as of the day and year written below.
XXXX.XXX, INC.
By: Xxxxx Xxxxxxxxxx
------------------------------------------
Title: CEO
---------------------------------------
Date: October ___, 2000
Xxxxx X. Xxxxxxx, an individual
/s/ Xxxxx Xxxxxxx
----------------------------------------------
Date: October ____, 2000
ADDENDUM TO KEY EMPLOYEE RETENTION AGREEMENT
The following shall constitute an Addendum to the Key Employee Retention
Agreement between Xxxxx Xxxxx ("Employee") and Xxxx.xxx, Inc. (the "Company")
dated April 17, 2000.
RECITALS
A. On April 17, 2000, Employee entered into a Key Employee Retention
Agreement with the Company (the "Retention Agreement"), a copy of which is
attached as Exhibit A to this Addendum.
16
B. On October 9, 2000, the Compensation Committee of the Board of
the Directors of the Company agreed to modify certain terms of the Retention
Agreement to provide that the benefits payable to Employee in the event of a
Change of Control shall also be payable in the event of a Liquidation of the
Company (as defined below), with such modifications taking effect as set forth
in this Addendum. All other provisions of the Retention Agreement that are not
modified by this Addendum remain in full force and effect.
NOW, THEREFORE, pursuant to the terms of the Retention Agreement, and in
consideration of the mutual promises, covenants and conditions hereinafter set
forth, the parties hereto mutually agree as follows:
1. Section 1 of the Retention Agreement is hereby amended such that
Section 1 now provides in its entirety as follows:
"Term of Agreement". This Agreement shall terminate upon the
earlier of: (a) the termination of Employee's employment for any reason prior to
a Change of Control or prior to and not in connection with a Liquidation, or (b)
the date that all obligations of the parties hereto with respect to this
Agreement have been satisfied.
2. Section 2 of the Retention Agreement is hereby amended such that
Section 2 now provides in its entirety as follows:
"At-Will Employment". The Company and the Employee acknowledge
that the Employee's employment is and shall continue to be at-will, as defined
under applicable law. If the Employee's employment terminates for any reason
prior to a Change of Control or prior to and not in connection with a
Liquidation, the Employee shall not be entitled to the benefits provided by this
Agreement, or any other benefits unless otherwise available in accordance with
the Company's established employee plans and practices or pursuant to other
agreements with the Company.
3. Section 3 of the Retention Agreement is hereby amended such that
Section 3 now provides in its entirety as follows:
"Separation Benefits upon Involuntary Termination following a
Change of Control or as a Result of the Company's Decision to Commence a
Liquidation. If within one year of the effective date of a Change of Control or
as a result of the Company's decision to commence a Liquidation, the Employee's
employment with the Company is terminated as a result of an Involuntary
Termination by the Company or the successor corporation without Cause or by the
Employee as the result of a Constructive Termination by the Company or the
successor corporation, then, subject to Section 4, Employee shall be entitled to
receive the following benefits: (i) severance payments for a period of twelve
(12) months following the termination date (the "Severance Period") equal to the
Employee's then current monthly base salary; (ii) a pro-rated amount of the
Employee's "target bonus" for the fiscal year in which the termination occurs
(or for the prior fiscal year if a target bonus has not yet been determined for
the fiscal year in which the termination occurs), with such payment being made
on the termination date; and (iii) continuation of all health and life insurance
benefits through the end of the Severance
17
Period, at Company expense. Severance payments under this Section 3 shall be
reduced by applicable taxes and shall be made in accordance with the Company's
regular payroll practices."
4. Section 5 of the Retention Agreement is hereby amended to add a new
subsection (d) which reads as follows:
(d) LIQUIDATION. "Liquidation" shall mean a complete
liquidation, dissolution or winding up of the Company.
5. Entire Agreement. Sections 1, 2, 3 and 5 of the Retention
Agreement are modified by the provisions of this Addendum. Except as so
modified, the Retention Agreement shall remain in full force and effect. In the
event of any conflict between this Addendum and the Retention Agreement, this
Addendum shall govern. This Addendum and the Retention Agreement constitute the
entire agreement between Employee and the Company regarding the subject matter
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be
duly executed as of the day and year written below.
XXXX.XXX, INC.
By: Xxxxx Xxxxxxxxxx
-----------------------------------------
Title: CEO
--------------------------------------
Date: October ___, 2000
Xxxxx Xxxxx, an individual
/s/ Xxxxx Xxxxx
--------------------------------------------
Date: October ____, 2000
ADDENDUM TO KEY EMPLOYEE RETENTION AGREEMENT
The following shall constitute an Addendum to the Key Employee Retention
Agreement between Xxxx Xxxxxx ("Employee") and Xxxx.xxx, Inc. (the "Company")
dated April 17, 2000.
RECITALS
18
A. On April 17, 2000, Employee entered into a Key Employee Retention
Agreement with the Company (the "Retention Agreement"), a copy of which is
attached as Exhibit A to this Addendum.
B. On October 9, 2000, the Compensation Committee of the Board of
the Directors of the Company agreed to modify certain terms of the Retention
Agreement to provide that the benefits payable to Employee in the event of a
Change of Control shall also be payable in the event of a Liquidation of the
Company (as defined below), with such modifications taking effect as set forth
in this Addendum. All other provisions of the Retention Agreement that are not
modified by this Addendum remain in full force and effect.
NOW, THEREFORE, pursuant to the terms of the Retention Agreement, and in
consideration of the mutual promises, covenants and conditions hereinafter set
forth, the parties hereto mutually agree as follows:
1. Section 1 of the Retention Agreement is hereby amended such that
Section 1 now provides in its entirety as follows:
"Term of Agreement". This Agreement shall terminate upon the
earlier of: (a) the termination of Employee's employment for any reason prior to
a Change of Control or prior to and not in connection with a Liquidation, or (b)
the date that all obligations of the parties hereto with respect to this
Agreement have been satisfied.
2. Section 2 of the Retention Agreement is hereby amended such that
Section 2 now provides in its entirety as follows:
"At-Will Employment". The Company and the Employee acknowledge
that the Employee's employment is and shall continue to be at-will, as defined
under applicable law. If the Employee's employment terminates for any reason
prior to a Change of Control or prior to and not in connection with a
Liquidation, the Employee shall not be entitled to the benefits provided by this
Agreement, or any other benefits unless otherwise available in accordance with
the Company's established employee plans and practices or pursuant to other
agreements with the Company.
3. Section 3 of the Retention Agreement is hereby amended such that
Section 3 now provides in its entirety as follows:
"Separation benefits upon Involuntary Termination
following a Change of Control or as a Result of the Company's Decision to
Commence a Liquidation.
(a) ACCELERATED VESTING. If within one year of the effective date
of a Change of Control or as a result of the Company's decision to commence a
Liquidation, the Employee's employment with the Company is terminated (an
"Involuntary Termination") by the Company or the successor corporation without
Cause or by the Employee as the result of a Constructive Termination by the
Company or the successor corporation, then, subject to the limitations in this
19
Section 3(a) and Section 4 below, the vesting of 25% of Employee's then unvested
shares of the Company's common stock shall automatically be accelerated so as to
become vested as of the effective date of the Involuntary Termination or
Constructive Termination. Notwithstanding the above, in the event that the
Company commences substantive discussions with a potential acquiror prior to
January 1, 2001 and such substantive discussions result in a Change of Control
of the Company, the stock acceleration benefits described above shall not apply
to the Employee's unvested option shares. The original vesting schedule(s) of
the Employee's option shares would then apply.
(b) SEVERANCE PAYMENT. If within one year of the effective date
of a Change of Control or as a result of the Company's decision to commence a
Liquidation, the Employee's employment with the Company is terminated as a
result of an Involuntary Termination by the Company or the successor corporation
without Cause or by the Employee as the result of a Constructive Termination by
the Company or the successor corporation, then, subject to Section 4 below,
Employee shall be entitled to receive the following benefits: (i) severance
payments for a period of six (6) months following the termination date (the
"Severance Period") equal to the Employee's then current monthly base salary;
(ii) a pro-rated amount of the Employee's "target bonus" for the fiscal year in
which the termination occurs (or for the prior fiscal year if a target bonus has
not yet been determined for the fiscal year in which the termination occurs),
with such payment being made on the termination date; and (iii) continuation of
all health and life insurance benefits through the end of the Severance Period,
at Company expense. Severance payments under this Section 3(b) shall be reduced
by applicable taxes and shall be made in accordance with the Company's regular
payroll practices."
4. Section 5 of the Retention Agreement is hereby amended to add a new
subsection (d) which reads as follows:
(d) LIQUIDATION. "Liquidation" shall mean a complete
liquidation, dissolution or winding up of the Company.
5. Entire Agreement. Sections 1, 2, 3 and 5 of the Retention
Agreement are modified by the provisions of this Addendum. Except as so
modified, the Retention Agreement shall remain in full force and effect. In the
event of any conflict between this Addendum and the Retention Agreement, this
Addendum shall govern. This Addendum and the Retention Agreement constitute the
entire agreement between Employee and the Company regarding the subject matter
hereof.
20
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be
duly executed as of the day and year written below.
XXXX.XXX, INC.
By: Xxxxx Xxxxxxxxxx
-------------------------------------------
Title: CEO
----------------------------------------
Date: October ___, 2000
Xxxx Xxxxxx, an individual
/s/ Xxxx Xxxxxx
----------------------------------------------
Xxxx Xxxxxx
Date: October ____, 2000
ADDENDUM TO KEY EMPLOYEE RETENTION AGREEMENT
The following shall constitute an Addendum to the Key Employee Retention
Agreement between Xxxxxxx Xxxxxxxxx ("Employee") and Xxxx.xxx, Inc. (the
"Company") dated April 17, 2000.
RECITALS
A. On April 17, 2000, Employee entered into a Key Employee Retention
Agreement with the Company (the "Retention Agreement"), a copy of which is
attached as Exhibit A to this Addendum.
B. On October 9, 2000, the Compensation Committee of the Board of
the Directors of the Company agreed to modify certain terms of the Retention
Agreement to provide that the benefits payable to Employee in the event of a
Change of Control shall also be payable in the event of a Liquidation of the
Company (as defined below), with such modifications taking effect as set forth
in this Addendum. All other provisions of the Retention Agreement that are not
modified by this Addendum remain in full force and effect.
21
NOW, THEREFORE, pursuant to the terms of the Retention Agreement, and in
consideration of the mutual promises, covenants and conditions hereinafter set
forth, the parties hereto mutually agree as follows:
1. Section 1 of the Retention Agreement is hereby amended such that
Section 1 now provides in its entirety as follows:
"Term of Agreement". This Agreement shall terminate upon the
earlier of: (a) the termination of Employee's employment for any reason prior to
a Change of Control or prior to and not in connection with a Liquidation, or (b)
the date that all obligations of the parties hereto with respect to this
Agreement have been satisfied.
2. Section 2 of the Retention Agreement is hereby amended such that
Section 2 now provides in its entirety as follows:
"At-Will Employment". The Company and the Employee acknowledge
that the Employee's employment is and shall continue to be at-will, as defined
under applicable law. If the Employee's employment terminates for any reason
prior to a Change of Control or prior to and not in connection with a
Liquidation, the Employee shall not be entitled to the benefits provided by this
Agreement, or any other benefits unless otherwise available in accordance with
the Company's established employee plans and practices or pursuant to other
agreements with the Company.
3. Section 3 of the Retention Agreement is hereby amended such that
Section 3 now provides in its entirety as follows:
"Separation benefits upon Involuntary Termination
following a Change of Control or as a Result of the Company's Decision to
Commence a Liquidation.
(a) ACCELERATED VESTING. If within one year of the effective date
of a Change of Control or as a result of the Company's decision to commence a
Liquidation, the Employee's employment with the Company is terminated (an
"Involuntary Termination") by the Company or the successor corporation without
Cause or by the Employee as the result of a Constructive Termination by the
Company or the successor corporation, then, subject to the limitations in this
Section 3(a) and Section 4 below, the vesting of 25% of Employee's then unvested
shares of the Company's common stock shall automatically be accelerated so as to
become vested as of the effective date of the Involuntary Termination or
Constructive Termination. Notwithstanding the above, in the event that the
Company commences substantive discussions with a potential acquiror prior to
January 1, 2001 and such substantive discussions result in a Change of Control
of the Company, the stock acceleration benefits described above shall not apply
to the Employee's unvested option shares. The original vesting schedule(s) of
the Employee's option shares would then apply.
(b) SEVERANCE PAYMENT. If within one year of the effective date
of a Change of Control or as a result of the Company's decision to commence a
Liquidation, the Employee's employment with the Company is terminated as a
result of an Involuntary Termination by the
22
Company or the successor corporation without Cause or by the Employee as the
result of a Constructive Termination by the Company or the successor
corporation, then, subject to Section 4 below, Employee shall be entitled to
receive the following benefits: (i) severance payments for a period of six (6)
months following the termination date (the "Severance Period") equal to the
Employee's then current monthly base salary; (ii) a pro-rated amount of the
Employee's "target bonus" for the fiscal year in which the termination occurs
(or for the prior fiscal year if a target bonus has not yet been determined for
the fiscal year in which the termination occurs), with such payment being made
on the termination date; and (iii) continuation of all health and life insurance
benefits through the end of the Severance Period, at Company expense. Severance
payments under this Section 3(b) shall be reduced by applicable taxes and shall
be made in accordance with the Company's regular payroll practices."
4. Section 5 of the Retention Agreement is hereby amended to add a new
subsection (d) which reads as follows:
(d) LIQUIDATION. "Liquidation" shall mean a complete
liquidation, dissolution or winding up of the Company.
5. Entire Agreement. Sections 1, 2, 3 and 5 of the Retention
Agreement are modified by the provisions of this Addendum. Except as so
modified, the Retention Agreement shall remain in full force and effect. In the
event of any conflict between this Addendum and the Retention Agreement, this
Addendum shall govern. This Addendum and the Retention Agreement constitute the
entire agreement between Employee and the Company regarding the subject matter
hereof.
23
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be
duly executed as of the day and year written below.
XXXX.XXX, INC.
By: Xxxxx Xxxxxxxxxx
--------------------------------
Title: CEO
-----------------------------
Date: October ___, 2000
Xxxxxxx Xxxxxxxxx, an individual
/s/ Xxxxxxx Xxxxxxxx
-----------------------------------
Xxxxxxx Xxxxxxxxx
Date: October ____, 2000
XXXX.XXX
KEY EMPLOYEE RETENTION AGREEMENT
This Key Employee Retention Agreement (the "Agreement") is made and
entered into by and between Xxxxxxx Xxx (the "Employee") and Xxxx.xxx, Inc., a
Delaware corporation (the "Company"), effective as of October 9, 2000.
RECITALS
A. It is expected that the Company from time to time will consider
the possibility of an acquisition by another company or other change of control
or liquidation. The Board of Directors of the Company (the "Board") recognizes
that such consideration can be a distraction to the Employee and can cause the
Employee to consider alternative employment opportunities. The Board has
determined that it is in the best interests of the Company and its stockholders
to assure that the Company will have the continued dedication and objectivity of
the Employee, notwithstanding the possibility, threat or occurrence of a Change
of Control or a Liquidation (as each term is defined in Section 5 below) of the
Company.
24
B. The Board believes that it is in the best interests of the
Company and its stockholders to provide the Employee with an incentive to
continue his or her employment and to motivate the Employee to maximize the
value of the Company upon a Change of Control or a Liquidation for the benefit
of its stockholders.
C. The Board believes that it is imperative to provide the Employee
with certain benefits upon a Change of Control or in connection with a
Liquidation that provide the Employee with enhanced financial security and
incentive and encouragement to the Employee to remain with the Company
notwithstanding the possibility of a Change of Control or a Liquidation.
D. Certain capitalized terms used in the Agreement are defined in
Section 5 below.
The parties hereto agree as follows:
1. TERM OF AGREEMENT. This Agreement shall terminate upon the
earlier of: (a) the termination of Employee's employment for any reason prior to
a Change of Control or prior to and not in connection with a Liquidation or (b)
the date that all obligations of the parties hereto with respect to this
Agreement have been satisfied.
2. AT-WILL EMPLOYMENT. The Company and the Employee acknowledge that
the Employee's employment is and shall continue to be at-will, as defined under
applicable law. If the Employee's employment terminates for any reason prior to
a Change of Control or prior to and not in connection with a Liquidation, the
Employee shall not be entitled to the benefits provided by this Agreement, or
any other benefits unless otherwise available in accordance with the Company's
established employee plans and practices or pursuant to other agreements with
the Company.
3. SEPARATION BENEFITS UPON INVOLUNTARY TERMINATION FOLLOWING
CHANGE OF CONTROL OR AS A RESULT OF THE COMPANY'S DECISION TO
COMMENCE A LIQUIDATION.
(a) ACCELERATED VESTING. If within one year of the effective date
of a Change of Control or as a result of the Company's decision to commence a
Liquidation, the Employee's employment with the Company is terminated (an
"Involuntary Termination") by the Company or the successor corporation without
Cause or by the Employee as the result of a Constructive Termination by the
Company or the successor corporation, then, subject to the limitations in this
Section 3(a) and Section 4 below, the vesting of 25% of Employee's then unvested
shares of the Company's common stock shall automatically be accelerated so as to
become vested as of the effective date of the Involuntary Termination or
Constructive Termination. Notwithstanding the above, in the event that the
Company commences substantive discussions with a potential acquiror prior to
January 1, 2001 and such substantive discussions result in a Change of Control
of the Company, the stock acceleration benefits described above shall not apply
to your unvested option shares. The original vesting schedule(s) of your option
shares would then apply.
(b) SEVERANCE PAYMENT. If within one year of the effective date
of a Change of Control or as a result of the Company's decision to commence a
Liquidation, the Employee's
25
employment with the Company is terminated as a result of an Involuntary
Termination by the Company or the successor corporation without Cause or by the
Employee as the result of a Constructive Termination by the Company or the
successor corporation, then, subject to Section 4 below, Employee shall be
entitled to receive the following benefits: (i) severance payments for a period
of six (6) months following the termination date (the "Severance Period") equal
to the Employee's then current monthly base salary; (ii) a pro-rated amount of
the Employee's "target bonus" for the fiscal year in which the termination
occurs (or for the prior fiscal year if a target bonus has not yet been
determined for the fiscal year in which the termination occurs), with such
payment being made on the termination date; and (iii) continuation of all health
and life insurance benefits through the end of the Severance Period, at Company
expense. Severance payments under this Section 3(b) shall be reduced by
applicable taxes and shall be made in accordance with the Company's regular
payroll practices.
4. LIMITATION ON PAYMENTS. In the event that the severance and other
benefits (the "Benefits") provided for in this Agreement or otherwise payable to
the Employee (i) constitute "parachute payments" within the meaning of Section
280G of the Internal Revenue Code of 1986, as amended (the "Code"), and (ii) but
for this Section 4, would be subject to the excise tax imposed by Section 4999
of the Code (or any corresponding provisions of state income tax law), then the
Employee's Benefits under Section 3 shall be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no
portion of such Benefits being subject to excise tax under Section 4999 of the
Code, whichever of the foregoing amounts, taking into account the applicable
federal, state and local income taxes and the excise tax imposed by Section
4999, results in the receipt by the Employee on an after-tax-basis, of the
greater amount of Benefits, notwithstanding that all or some portion of such
Benefits may be taxable under Section 4999 of the Code. Unless the Company and
the Employee otherwise agree in writing, any determination required under this
Section 4 shall be made in writing by the Accountants, whose determination shall
be conclusive and binding upon the Employee and the Company for all purposes.
For purposes of making the calculations required by this Section 4, the
Accountants may make reasonable assumptions and approximations concerning
applicable taxes and may rely on reasonable, good faith interpretations
concerning the application of Sections 280G and 4999 of the Code. The Company
and the Employee shall furnish to the Accountants such information and documents
as the Accountants may reasonably request in order to make a determination under
this Section. The Company shall bear all costs the Accountants may reasonably
incur in connection with any calculations contemplated by this Section 4. In the
event that subsection (a) above applies, then Employee shall be responsible for
any excise taxes imposed with respect to such severance and other benefits. In
the event that subsection (b) above applies, then each benefit provided
hereunder shall be proportionately reduced to the extent necessary to avoid
imposition of such excise taxes.
5. DEFINITION OF TERMS. The following terms referred to in this
Agreement shall have the following meanings:
26
(a) CHANGE OF CONTROL. "Change of Control" shall mean a sale or
merger of the Company, in which more than fifty percent (50%) of the voting
power of the Company is transferred to a third party.
(b) CAUSE. "Cause" for Employee's termination shall mean the good
faith judgment of the Company's Board of Directors, that the undersigned has
engaged in or committed any of the following: (i) gross negligence or willful
misconduct in the performance of his duties to the Company where such gross
negligence or willful misconduct has resulted or is likely to result in
substantial and material damage to the Company or its subsidiaries, (ii)
repeated unexplained or unjustified absence from the Company, (iii) a material
and willful violation of any federal or state law, (iv) commission of any act of
fraud with respect to the Company, (v) breach of any confidentiality obligation
to the Company, whether determined by agreement or by applicable law; or (vi)
conviction of a felony or a crime involving moral turpitude causing material
harm to the standing and reputation of the Company, in each case as determined
in good faith by the Board of Directors of the Company.
(c) CONSTRUCTIVE TERMINATION. "Constructive Termination" shall
be deemed to occur if there is (i)(A) a material adverse change in Employee's
position causing such position to be of materially reduced responsibility, (B)
any reduction of Employee's base compensation unless in connection with similar
decreases of other similarly situated employees of the Company or its successor
corporation, or (C) Employee's refusal to relocate to a facility or location
more than 50 miles from the Company's current location in San Francisco,
California; and (ii) within the 30-day period immediately following any of the
foregoing events, Employee elects to terminate his or her employment
voluntarily.
(d) LIQUIDATION. "Liquidation" shall mean a complete liquidation,
dissolution of winding up of the Company.
6. SUCCESSORS.
(a) COMPANY'S SUCCESSORS. Any successor to the Company (whether
direct or indirect and whether by purchase, merger, consolidation, liquidation
or otherwise) to all or substantially all of the Company's business and/or
assets shall assume the obligations under this Agreement and agree expressly to
perform the obligations under this Agreement in the same manner and to the same
extent as the Company would be required to perform such obligations in the
absence of a succession. For all purposes under this Agreement, the term
"Company" shall include any successor to the Company's business and/or assets
which executes and delivers the assumption agreement described in this Section
6(a) or which becomes bound by the terms of this Agreement by operation of law.
(b) EMPLOYEE'S SUCCESSORS. The terms of this Agreement and all
rights of the Employee hereunder shall inure to the benefit of, and be
enforceable by, the Employee's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.
27
7. NOTICE. Notices and all other communications contemplated by this
Agreement shall be in writing and shall be deemed to have been duly given when
personally delivered or three (3) days after being mailed by U.S. registered or
certified mail, return receipt requested and postage prepaid. In the case of the
Employee, mailed notices shall be addressed to him or her at the home address
which he or she most recently communicated to the Company in writing. In the
case of the Company, mailed notices shall be addressed to its corporate
headquarters, and all notices shall be directed to the attention of its
Secretary.
8. MISCELLANEOUS PROVISIONS.
(a) NO DUTY TO MITIGATE. The Employee shall not be required to
mitigate the amount of any payment contemplated by this Agreement, nor shall any
such payment be reduced by any earnings that the Employee may receive from any
other source.
(b) WAIVER. No provision of this Agreement shall be modified,
waived or discharged unless the modification, waiver or discharge is agreed to
in writing and signed by the Employee and by an authorized officer of the
Company (other than the Employee). No waiver by either party of any breach of,
or of compliance with, any condition or provision of this Agreement by the other
party shall be considered a waiver of any other condition or provision or of the
same condition or provision at another time.
(c) WHOLE AGREEMENT. This Agreement represents the entire
agreement between the Employee and the Company with respect to the matters set
forth herein. No agreements, representations or understandings (whether oral or
written and whether express or implied) which are not expressly set forth in
this Agreement have been made or entered into by either party with respect to
the subject matter hereof.
(d) CHOICE OF LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
California as applied to agreements entered into and performed within California
solely by residents of that state.
(e) SEVERABILITY. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision hereof, which shall remain in full force
and effect.
(f) LEGAL FEES AND EXPENSES. The parties shall each bear their
own expenses, legal fees, and other fees incurred in connection with this
Agreement.
(g) WITHHOLDING. All payments made pursuant to this Agreement
will be subject to withholding of applicable income and employment taxes.
(h) COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together will
constitute one and the same instrument.
28
IN WITNESS WHEREOF, each of the parties has executed this
Agreement, in the case of the Company by its duly authorized officer, as of the
date set forth above.
COMPANY: XXXX.XXX, INC.
By: /s/ Xxxxx Xxxxxxxxxx
-------------------------------
Title: CEO
----------------------------
EMPLOYEE: XXXXXXX XXX
Signature: /s/ Xxxxxxx Xxx
------------------------
----------------------------------
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