Re: Letter Agreement regarding Service as Interim Chief Executive Officer (the “Agreement”)
March 13,
2009
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Re:
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Letter
Agreement regarding Service as Interim Chief Executive Officer (the
“Agreement”)
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Xx. Xxxxx
Xxxx
Dear
Xxxxx:
This
letter sets forth the terms agreed to by you and XxxXxxxxx.xxx, Inc., a Delaware
corporation (the “Company”) in connection with your service as interim Chief
Executive Officer of the Company.
1. Term. The
term of this Agreement shall commence on the “Effective Date” (as defined in the
Separation Agreement and Mutual Release dated March 13, 2009 between the Company
and Xxxxxx X. Xxxxxx, Xx.) and shall continue for three (3) months thereafter
(the “Initial Term”), subject to extension by the Company for up to three
additional one-month periods (each, a “Renewal Term,” and together with the
Initial Term, the “Term”) by delivery of written notice to you no less than ten
(10) days prior to the end of the Initial Term or current Renewal Term, as the
case may be. Notwithstanding the foregoing, in the event of any
material breach of this Agreement either in whole or in part by either party,
which breach remains uncured for ten (10) days following receipt of written
notice thereof, the other party may cancel this Agreement. If the
Effective Date does not occur, this Agreement shall be null and
void.
2. Services. During
the Term of this Agreement or until the appointment of your permanent successor,
if sooner, you shall serve as the interim Chief Executive Officer of the
Company, reporting to the Board of Directors (the “Board”) of the
Company. In your capacity as interim Chief Executive Officer you will
perform such duties, functions and responsibilities as are generally incident to
such position including, without limitation, recruiting a permanent chief
executive officer and running the business of the Company and its subsidiaries
in accordance with the operating budgets approved by the Board. If a
permanent chief executive officer is appointed during the Initial Term, you will
continue to provide services, as reasonably requested by your successor, to
assist in the transition of your responsibilities for up to the balance of the
Initial Term. You agree to faithfully perform the lawful duties
assigned to you pursuant to this Agreement to the best of your abilities and to
devote substantially all of your business time and attention to the Company’s
and its subsidiaries’ business. During the Term, you will cease to be
a member of the Audit Committee of the Board.
3. Compensation. During
the Term of this Agreement, for all services to be rendered by you, the Company
will pay you a monthly consulting fee of $59,792.00, less any amount received by
you in your capacity as a member of the Board attributable to such
period. In addition, as soon as practicable after the date hereof,
you will receive a one-time grant of 25,000 restricted stock units (“RSU’s)
under the Company’s 2007 Performance Incentive Plan (the “2007 Plan”), pursuant
to a grant agreement substantially in the form attached hereto as Exhibit
A.
4. Expenses. Consultant
will have the right to reimbursement, upon proper accounting, of reasonable
expenses and disbursements incurred by him in the course of his duties
hereunder.
5. Independent Contractor
Status. It is understood and agreed that nothing contained in
this Agreement or the performance of any of the services hereunder shall be
construed as creating the relationship of employer and employee between the
Company and you. You are not an employee of the Company and are not
entitled to the provision of any employee benefits. The Company shall
not be responsible for payment of, and you shall not make a claim against the
Company for, worker’s compensation, disability benefits, or unemployment
insurance, nor shall the Company be responsible for withholding or paying
employment related taxes for you, such being your sole
responsibility.
6. Confidentiality;
Intellectual Property.
(a) Except
as otherwise provided in this Agreement, at all times during and after the Term,
i.e., indefinitely from and after the date hereof, you shall keep secret and
retain in strictest confidence, any and all confidential information relating to
the Company and its subsidiaries, and shall use such confidential information
only in furtherance of the performance by you of your duties to the Company and
its subsidiaries and not for personal benefit or the benefit of any interest
adverse to the Company’s or subsidiaries’ interests. For purposes of this
Agreement, “confidential information” shall mean any information including
without limitation plans, specifications, models, samples, data, customer lists
and customer information, computer programs and documentation, and other
technical and/or business information, in whatever form, tangible or intangible,
that can be communicated by whatever means available at such time, that relates
to the Company’s or its subsidiaries’ current business or future business
contemplated during the Term, products, services and development, or information
received from others that the Company or any of its subsidiaries is obligated to
treat as confidential or proprietary (provided that such confidential
information shall not include any information that (a) has become generally
available to the public or is generally known in the relevant trade or industry
other than as a result of an improper disclosure by you, or (b) was available to
or became known to you prior to the disclosure of such information on a
non-confidential basis without breach of any duty of confidentiality to the
Company or its subsidiaries), and you shall not disclose such confidential
information to any person other than the Company or its subsidiaries, except
with the prior written consent of the Company, as may be required by law or
court or administrative order (in which event you shall so notify the Company as
promptly as practicable), or in performance of your duties hereunder. Further,
this Section 6(a) shall not prevent you from disclosing Confidential Information
in connection with any litigation, arbitration or mediation to enforce this
Agreement, provided that such disclosure is necessary for you to assert any
claim or defense in such proceeding.
(b) Upon
the later of the termination of the Term for any reason or the end of your term
as a director, you shall return to the Company all copies, reproductions and
summaries of confidential information in your possession and erase the same from
all media in his possession, and, if the Company so requests, shall certify in
writing that you have done so. All confidential information is and shall remain
the property of the Company (or, in the case of information that the Company
receives from a third party which it is obligated to treat as confidential, then
the property of such third party); provided, you shall be entitled to retain
copies of (i) information showing your compensation or relating to reimbursement
of expenses, (ii) information that is required for the preparation of your
personal income tax return, and (iii) this Agreement and any other agreement by
and between you and the Company with regard to your services hereunder or
termination thereof.
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(c) All
Intellectual Property (as hereinafter defined) and Technology (as hereinafter
defined) created, developed, obtained or conceived of by you during the Term,
and all business opportunities presented to you during the Term, shall be owned
by and belong exclusively to the Company or its subsidiary, as the case may be,
provided that they reasonably relate to any of the business of the Company or
its subsidiaries on the date of such creation, development, obtaining or
conception, and you shall (i) promptly disclose any such Intellectual Property,
Technology or business opportunity to the Company, and (ii) execute and deliver
to the Company, without additional compensation, such instruments as the Company
may require from time to time to evidence its ownership of any such Intellectual
Property, Technology or business opportunity. For purposes of this Agreement,
(x) the term “Intellectual Property” means and includes any and all trademarks,
trade names, service marks, service names, patents, copyrights, and applications
therefor, and (y) the term “Technology” means and includes any and all trade
secrets, proprietary information, invention, discoveries, know-how, formulae,
processes and procedures.
7. Covenants
Reasonable. The parties acknowledge that the restrictions
contained in Section 5 hereof are a reasonable and necessary protection of the
immediate interests of the Company and its subsidiaries, and any violation of
these restrictions could cause substantial injury to the Company and it
subsidiaries and that the Company would not have entered into this Agreement,
without receiving the additional consideration offered by you in binding
yourself to any of these restrictions. In the event of a breach or threatened
breach by you of any of these restrictions, the Company shall be entitled to
apply to any court of competent jurisdiction for an injunction restraining you
from such breach or threatened breach; provided however, that the right to apply
for an injunction shall not be construed as prohibiting the Company from
pursuing any other available remedies for such breach or threatened
breach.
8. Notices. Unless
otherwise provided herein, any notice required or permitted to be given
hereunder shall be in writing and shall be given by overnight delivery service
such as Federal Express, telecopy (or like transmission) or personal delivery
against receipt, or mailed by registered or certified mail (return receipt
requested), to the party to whom it is given at such party’s address set forth
below such party’s name on the signature page or such other address as such
party may hereafter specify by notice to the other party hereto. Any notice or
other communication shall be deemed to have been given as of the date so
personally delivered or transmitted by telecopy or like transmission or on the
next business day when sent by overnight delivery service.
9. Amendment. This
Agreement may be amended only by a written agreement signed by the parties
hereto.
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10. Binding
Effect. Your rights and duties under this Agreement are not
assignable by you other than as a result of your death. This Agreement shall be
binding upon and inure to the benefit of the Company and its
assigns.
11. Governing
Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York applicable to
contracts to be performed wholly within the state and without regard to its
conflict of laws provisions.
12. Execution in
Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and all of which
shall constitute one and the same instrument.
13. Entire
Agreement. This Agreement, together with the award agreement
entered into by and between you and the Company with respect to RSUs granted
after the date hereof, sets forth the entire agreement, and supersedes all prior
agreements and understandings, both written and oral, with respect to the
subject matter hereof and thereof.
14. Consent to
Jurisdiction. The parties hereby irrevocably submit to the
exclusive jurisdiction of any New York State or Federal court sitting in the
City of New York in any action or proceeding to enforce the provisions of this
Agreement, and waive the defense of inconvenient forum to the maintenance of any
such action or proceeding. The parties hereby irrevocably waive their
right to request a jury trial in any such proceeding.
15. Indemnification. The
Company agrees that if you are or are made a party, or are threatened to be made
a party, to any action, suit or proceeding (a “Proceeding”), by reason of the
fact that you are or were a director, officer or employee of the Company or are
or were serving at the request of the Company as a director, officer, member,
employee or agent of another entity, you shall be fully indemnified and held
harmless by the Company to the fullest extent permitted by law against all cost,
expense, liability and loss reasonably incurred or suffered by you in connection
therewith, and such indemnification shall continue after termination of your
services with respect to acts or omissions which occurred prior to the
termination of your services and which occur after your termination of your
services pursuant to this Section 15, and shall inure to the benefit of
Consultant’s heirs, executors and administrators. To the fullest extent allowed
by law, the Company shall advance to you all reasonable costs and expenses
incurred by you in connection with a Proceeding within 20 calendar days after
receipt by the Company of a written request for such advance. Such request shall
include an undertaking by you to repay the amount of such advance if it shall
ultimately be determined that you are not entitled to be indemnified against
such costs and expenses.
16. Liability
Insurance. The Company shall cover you under directors and
officers liability insurance both during and, while potential liability exists,
after the Term in the same amount and to the same extent as the Company
generally provides to its other senior executive officers and directors. This
provision shall in all events survive any termination of this
Agreement.
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Sincerely
yours,
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XXXXXXXXX.XXX,
INC.
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By: /s/ Xxxxx
Xxxxx
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Name: Xxxxx
Xxxxx
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Title: Director,
Member of Compensation Committee
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Date: _____________________________
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c/o
XxxXxxxxx.xxx, Inc.
00
Xxxx Xxxxxx
Xxx
Xxxx, XX 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
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AGREED
AND ACCEPTED:
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/s/ Xxxxx
Xxxx
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Xxxxx
Xxxx
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Address: _____________________
_____________________
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Date:
_____________________
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5
EXHIBIT A
XXXXXXXXX.XXX,
INC.
AGREEMENT
FOR GRANT
OF
RESTRICTED
STOCK UNITS
(Directors)
March __,
0000
Xxxxx
Xxxx
00 X 0xx
Xxxxxx, Xxx 0
Xxx Xxxx,
XX 00000
Dear
Xxxxx:
This
letter (the “Letter”) sets forth the terms and
conditions of the grant of the restricted stock units hereby awarded to you by
XxxXxxxxx.xxx, Inc. (the “Company”),
in accordance with the provisions of the Company's 2007 Performance Incentive
Plan (the “Plan”).
The award granted hereunder shall be
referred to as Restricted Stock Units (or “RSUs”) and is subject to the terms and
conditions set forth in the Plan, any rules and regulations adopted by the Board
of Directors of the Company or the committee of the Board which administers the
Plan (collectively, the “Committee”), and this Letter. The
provisions of the Plan are hereby incorporated by reference, and any term used
in this Letter and not defined shall have the meaning set forth in the
Plan.
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1.
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Grant of Restricted Stock
Units
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(a) You have been granted
25,000 Restricted Stock
Units. Each Restricted Stock Unit represents the right to receive one
share of the Company’s Common Stock (“Common Stock”) on the applicable vesting date for
such Restricted Stock Unit. No Restricted Stock Unit may be sold,
transferred, assigned, pledged or otherwise encumbered by you, except pursuant
to the laws of descent and distribution.
(b) Until
such time as stock certificates for the shares of Common Stock represented by
the Restricted Stock Units have been delivered to you in accordance with Section
4 below, you shall have none of the rights of a stockholder with respect to the
Common Stock. However, this grant includes the grant of dividend
equivalents with respect to your RSUs. The Company will maintain a
bookkeeping account to which it will credit, whenever cash dividends are paid on
the Common Stock, an amount equal to the amount of the dividend paid on a share
of Common Stock for each of your then-outstanding RSUs covered by this
Letter. The accumulated dividend equivalents will vest on the
applicable vesting date for the RSU with respect to which such dividend
equivalents were credited, and will be paid in cash at the time a stock
certificate evidencing the shares represented by such vested RSU is delivered to
you.
EXHIBIT A
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2.
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Vesting of Restricted Stock
Units
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100% of
your RSUs will vest on January 2, 2010 provided that you are in the Service (as
defined below) of the Company or one of its subsidiaries on such
date. For purposes hereof, you shall be considered to be in the
"Service"
of the Company or one of its subsidiaries if you are continuing to perform
services either as an independent contractor pursuant to the Letter Agreement
dated March 13, 2009 between you and the Company or as a director of the Company
(or one of its subsidiaries, as applicable). If you cease to be in
Service prior to January 2, 2010 for any reason other than (i) termination by
the Company for reasons constituting grounds for removal of a director for cause
or (ii) your voluntary resignation, your RSUs will immediately
vest. If you cease to be in Service prior to January 2, 2010 due to
termination by the Company for reasons constituting grounds for removal of a
director for cause or due to your voluntary resignation, the RSUs granted to you
which have not vested shall be forfeited upon your ceasing to be in
Service.
3.
Accelerated Vesting in Certain
Events
Notwithstanding
Section 2 of this Letter, in the event of the occurrence of a Change of Control
(as defined in the Plan) prior to the termination of your Service for any
reason, your then unvested RSUs will immediately become vested.
4.
Delivery of Common
Stock
Upon the
vesting of your RSUs pursuant to Section 2 above, the shares will be delivered
to you on January 2, 2010. Upon the vesting of your RSUs pursuant to
Section 3 above, the shares will be delivered to you on or around the applicable
vesting date set forth in Section 3 above. Common Stock delivered
will be fully transferable (subject to any applicable securities law
restrictions) and not subject to forfeiture, and will entitle the holder to all
rights of a stockholder of the Company.
5.
Income Tax
Withholding
You will
be required to pay, pursuant to such arrangements as the Company may establish
from time to time, any applicable federal, state and local withholding tax
liability at the time that the value of the RSUs and/or related dividend
equivalents becomes includable in your income. For purposes of
computing taxes owed, the value of the RSU grant will be assessed fair market
value based upon the closing price of common shares of the Company’s stock on
the day of vesting or, if the day of vesting is not a trading day on such
market, then the trading day immediately following the day of
vesting. If the Committee approves, at time of grant, to defer
delivery of the shares, then fair market value will be assessed based upon the
closing price of common shares of the Company’s stock on the day of delivery of
the common shares or the next trading day thereafter if delivery date is not a
trading day.
EXHIBIT A
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6.
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No Guarantee of Continuation of
Service
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This
grant of Restricted Stock Units does not constitute an assurance of continued
Service for any period or in any way interfere with the Company’s right to
terminate your Service or to change the terms and conditions of your
Service.
7.
Administration
The
Committee has the sole power to interpret the Plan and this Letter and to act
upon all matters relating this grant. Any decision, determination,
interpretation, or other action taken pursuant to the provisions of the Plan and
this Letter by the Committee shall be final, binding, and
conclusive.
8.
Amendment
(a) The
Committee may from time to time amend the terms of this grant in accordance with
the terms of the Plan in effect at the time of such amendment, but no amendment
which is unfavorable to you can be made without your written
consent.
(b) The
Plan is of unlimited duration, but may be amended, terminated or discontinued by
the Board of Directors of the Company at any time. However, no
amendment, termination or discontinuance of the Plan will unfavorably affect
this grant.
(c) Notwithstanding
the foregoing, the Committee expressly reserves the right to amend the terms of the
Plan and this grant without your consent to the extent it determines that such
amendment is necessary or desirable for compliance with Section 409A of the
Code. It is intended that the RSUs evidenced hereby shall not
constitute “deferred compensation” within the meaning of Section 409A or, if
they do constitute “deferred compensation,” shall satisfy the requirements of
Section 409A. However, the Company makes no representation as to the
tax treatment of your RSUs and expressly disclaims any liability
therefor.
______________________
[text
continued on next page]
EXHIBIT A
This
Letter contains the formal terms and conditions of your award and accordingly
should be retained in your files for future reference. The Company
may require you to provide evidence of your acknowledgment of this letter using
such means of notification as may be communicated to you by the Company or its
service provider.
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Very
truly yours,
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XXXXXXXXX.XXX,
INC.
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By:
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AGREED
TO AND ACCEPTED:
Xxxxx
Xxxx
