Exhibit 10.38
[Xxxxxxxx.xxx, Inc. Letterhead]
March 8, 2003
Re: Retention Bonus
Dear [Employee]:
Xxxxxxxx.xxx, Inc. (the "Company") recognizes that you are a highly
valued employee and to encourage you to remain in the employ of the Company and
to provide additional incentive for you to promote the success of the business
of the Company, the Company has provided you with this agreement (the
"Agreement"), which provides for a lump-sum retention bonus (the "Retention
Bonus") in the amount set forth on Exhibit A if you remain employed with the
Company through July 31, 2003 subject to the terms below. The Retention Bonus
shall be paid no later than August 15, 2003 and the payment date will be
accelerated under the circumstances referred to in the following paragraph.
Capitalized terms not otherwise defined in this Agreement are defined in Exhibit
B to this Agreement and, unless otherwise indicated, the term "Company" shall
also include the subsidiaries and affiliates of Xxxxxxxx.xxx, Inc.
If a Change in Control occurs prior to July 31, 2003, and on or after
the date of such Change in Control your employment with the Company is
terminated prior to July 31, 2003 (1) by the Company other than for Cause, death
or Disability, (2) by reason of your resignation for Good Reason or (3) by means
of any other termination entitling you to severance payments, you will also be
entitled to the Retention Bonus, which shall be paid within ten (10) days
following such termination of employment. You shall not be entitled to receive
more than one Retention Bonus.
The Company reserves the right to terminate your employment at any time
with Cause or without Cause, subject to the terms of any other written
employment, consulting or similar agreement between you and the Company, and
subject to the terms of any severance plan or arrangement then in effect.
Non-Exclusivity of Rights. Nothing in this Agreement shall prevent or
limit your continuing or future participation in any benefit, bonus, incentive
or other plan, program, arrangement or policy provided by the Company for which
you and/or your dependents may qualify, including without limitation any Change
in Control severance plan in which you are entitled to participate. Amounts that
are vested benefits or that you and/or your family are otherwise entitled to
receive under any plan, program, arrangement, agreement or policy of the Company
or any of its subsidiaries shall be payable in accordance with such plan,
program, arrangement, agreement or policy.
No Set-Off; No Duty to Mitigate. The Company's obligation to make the
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against you
or others. In no event shall you be obligated to seek other employment or take
any other action by way of mitigation of the amounts payable to you under any of
the provisions of this Agreement.
[Employee]
March 8, 2003
Page -2-
Confidentiality. You shall hold in a fiduciary capacity for the benefit
of the Company all confidential information, knowledge or data relating to the
Company and its subsidiaries and their respective businesses that you have
obtained that is not public knowledge ("Confidential Information"). You shall
not use, communicate, divulge or disseminate Confidential Information at any
time, except with the prior written consent of the Company or as otherwise
required by law or legal process or as necessary in performing your duties for
the Company. In the event that you breach the provisions of this paragraph, you
will not be entitled to the Retention Bonus.
Assumption. This letter shall be binding upon any successor of the
Company or its businesses (whether direct or indirect, by purchase, merger,
consolidation or otherwise), in the same manner and to the same extent that the
Company would be obligated under this Agreement if no succession had taken
place. In the case of any transaction in which a successor would not by the
foregoing provision or by operation of law be bound by this Agreement, the
Company shall require such successor expressly and unconditionally to assume and
agree to perform the Company's obligations under this Agreement, in the same
manner and to the same extent that the Company would be required to perform if
no such succession had taken place. The term "Company," as used in this
Agreement, shall mean the Company as hereinbefore defined and any successor or
assignee to the business or assets which by reason hereof becomes bound by this
Agreement.
Miscellaneous. This letter agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, without
reference to its conflict of law rules. All payments hereunder are subject to
withholding for applicable income and payroll taxes or otherwise as required by
law.
XXXXXXXX.XXX, INC.
By:
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Title:
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Accepted and Acknowledged:
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Dated:
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EXHIBIT A
Amount of Retention Bonus
$
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EXHIBIT B
The following terms shall have the meaning set forth below when used in the
attached letter Agreement:
"Cause" means (i) your conviction of, or plea of guilty or nolo contendere to, a
felony (other than a traffic-related felony), (ii) your gross negligence or
willful misconduct having a material adverse impact on the Company, or (iii)
your willful refusal to attempt to perform your job duties (other than due to
Disability or an approved leave) after receipt of written notice from the
Company.
"Change in Control" means the occurrence of any of the following events prior to
July 31, 2003:
(i) The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) (a "Person") of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of 50% or more of
either (x) the then outstanding shares of common stock of the Company (the
"Outstanding Company Common Stock") or (y) the combined voting power of the then
outstanding voting securities of the Company entitled to vote generally in the
election of directors (the "Outstanding Company Voting Securities"); provided,
however, that for purposes of this subsection (i), the following acquisitions
shall not constitute a Change in Control: (A) any acquisition directly from the
Company, (B) any acquisition by the Company, (C) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company, or (D) any acquisition by any corporation
pursuant to a transaction which complies with clauses (A), (B) and (C) of
paragraph (iii) below; or
(ii) Individuals who, as of the Effective Date, constitute the Board
(the "Incumbent Board") cease for any reason to constitute at least a majority
of the Board; provided, however, that any individual becoming a director
subsequent to the Effective Date whose election, or nomination for election by
the Company's shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the election
or removal of directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board; or
(iii) Consummation of a reorganization, merger, consolidation, sale or
other disposition of all or substantially all of the assets of the Company or an
acquisition of the assets of another entity (a "Business Combination"), in each
case, unless, following such Business Combination, (A) all or substantially all
of the individuals and entities who were the beneficial owners, respectively, of
the Outstanding Company Common Stock and Outstanding Company Voting Securities
immediately prior to consummation of such Business Combination beneficially own,
directly or indirectly, more than 50% of, respectively, the then outstanding
shares of Common stock and the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of directors (or
other governing body, if applicable), as the case may be, of the entity
resulting from such Business Combination (including, without limitation, an
entity which as a result of such transaction owns the Company or all or
substantially all of the Company's assets either directly or through one or more
subsidiaries) in substantially the same proportions as their ownership,
immediately prior to consummation of such Business Combination of the
Outstanding Company Common Stock and Outstanding Company Voting Securities, as
the case may be, (B) no Person (excluding any corporation resulting from such
Business Combination or any employee benefit plan (or related trust))
beneficially owns, directly or indirectly, 50% or more of, respectively, the
then outstanding shares of common stock of the entity resulting from such
Business Combination or of the combined voting power of the then outstanding
voting securities of such entity, except to the extent that such ownership
existed prior to consummation of the Business Combination, and (C) at least a
majority of the members of the board of directors (or other governing body, if
applicable) of the entity resulting from such Business Combination were members
of the Incumbent Board at the time of the execution of the initial agreement, or
of the action of the Board, providing for such Business Combination; or
(iv) Approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
For purposes of this definition, "Company" shall be limited to Xxxxxxxx.xxx,
Inc.
"Disability" means your physical or mental injury which has prevented you from
performing your duties (as they existed immediately prior to the illness or
injury) on a full-time basis for one hundred eighty (180) consecutive days.
"Effective Date" means the date of this Agreement.
"Good Reason" means, without your written consent: (i) the relocation of your
place of employment to a location in excess of thirty-five (35) miles from the
place of your employment immediately prior to a Change in Control; or (ii) any
reduction by the Company of your annual rate of base pay or salary from the
annual rate of base pay or salary for you immediately prior to the Change in
Control; or (iii) the failure of the Company to obtain from a successor
(including a successor to a material portion of the business or assets of the
Company) a satisfactory assumption in writing of the Company's obligations under
this Agreement; provided, that you shall give the Company thirty (30) days'
written notice and opportunity to cure prior to any termination for Good Reason
based on the grounds specified herein. In addition, any termination of your
employment for "Good Reason" under any Individual Agreement shall also be a
termination of employment for Good Reason under this Agreement.
"Individual Agreement" means any individual employment agreement or severance
agreement between the Company and you.
