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EXHIBIT 10.57
EMPLOYMENT AGREEMENT
This Employment Agreement ("AGREEMENT") is made and entered into as of
October 25, 2000 by and between Nextera Enterprises, Inc., a Delaware
corporation (the "COMPANY") and Xxxxx Xxxxxxxxx ("EXECUTIVE").
RECITALS
WHEREAS, the Company desires to employ Executive and to enter into an
agreement embodying the terms of such employment; and
WHEREAS, Executive desires to accept employment with the Company,
subject to the terms and provisions of this Agreement;
AGREEMENT
NOW THEREFORE, in consideration of the foregoing recitals, the mutual
promises and covenants contained herein, and for other good and valuable
consideration, the receipt and adequacy of which are mutually acknowledged, the
Company and Executive agree as follows:
1. EMPLOYMENT AND DUTIES. During the Employment Period (as hereinafter
defined), Executive shall serve as President and Chief Executive Officer of the
Company, reporting directly to the Company's Board of Directors (the "BOARD OF
DIRECTORS"). The Executive shall have all the authorities and responsibilities
that are customarily associated with such positions in a company of the size and
structure of the Company. Executive shall faithfully perform his duties and
responsibilities pursuant to this Agreement to the best of his ability, on a
substantially full-time basis, subject to the provisions of Paragraph 10 below.
Except with the prior written approval of the Board of Directors, during the
Employment Period Executive will not (i) accept any other employment with a
third party, (ii) serve on the board of directors or similar body of any other
business entity in any way directly or indirectly competitive with the business
of the Company, or (iii) engage, directly or indirectly, in any other business
or investment activity (whether or not pursued for pecuniary advantage) that is
or may be competitive with, or that might place him in a competing position to
or otherwise conflict with, that of the Company or any of its subsidiaries,
affiliates or divisions.
2. BOARD SEAT. At the next meeting of the Board of Directors, the
Company shall nominate Executive to serve as a director of the Company, and
shall use all reasonable efforts to cause Executive to be elected to the Board
of Directors, with a view toward having Executive serve as a director throughout
the Employment Period. If elected, Executive shall serve in such capacity during
the Employment Period without additional compensation, subject to Executive's
right to resign from the Board of Directors at any time.
3. TERM AND TERMINATION.
3.1. EFFECTIVE DATE. This Agreement shall be effective as of the
date hereof (the "EFFECTIVE DATE"). Executive shall commence his service under
this Agreement no later than sixty (60) days after the Effective Date. If
Executive is not able to commence his
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service for any reason within such sixty (60) day period, this Agreement shall
have no force or effect for any purpose. The date on which Executive actually
commences the performance of his duties hereunder shall be the COMMENCEMENT
DATE.
3.2. EMPLOYMENT PERIOD. The Employment Period shall begin on the
Commencement Date and end at the close of business on the third anniversary of
the Commencement Date (the "INITIAL TERM") or upon the expiration of any renewal
period (the "EXPIRATION Date"), subject to renewal as hereinafter provided for,
unless sooner terminated pursuant to the provisions of this Agreement. So long
as the Employment Period is then in effect, and no termination notice that is
then effective has theretofore been given, the Employment Period shall
automatically extend for an additional one (1) year beyond the Expiration Date
otherwise next set to occur, unless any party gives written notice of
non-renewal to the other party at least one hundred twenty (120) calendar days
prior to that Expiration Date. If such notice of non-renewal is given, the
Employment Period shall expire on that Expiration Date.
3.3. EARLY TERMINATION FOR CAUSE. The Company may terminate
Executive's employment for Cause (as hereinafter defined) by giving Executive
notice in writing of such termination. For all purposes under this Agreement,
the term "CAUSE" shall mean:
(i) Any willful act by Executive which constitutes gross
misconduct of a type and kind which results in material
economic harm to the Company;
(ii) A willful violation by Executive of a federal or state law,
rule or regulation applicable to the business of the Company
of a type and kind that is materially adverse to the Company;
or
(iii) The conviction of Executive of, or entry by Executive of a
guilty or no contest plea to, a felony involving moral
turpitude.
A termination for Cause shall not take effect unless the provisions of this
Paragraph 3.3 are complied with. Executive shall be given written notice by the
Board of the intention to terminate him for Cause, such notice (A) to state in
detail the particular act or acts or failure or failures to act that constitute
the grounds on which the proposed termination for Cause is based and (B) to be
given within six months of the Board learning of such act or acts or failure or
failures to act. The Executive shall have 5 days after the date that such
written notice has been given to the Executive in which to cure such conduct, to
the extent such cure is possible. If he fails to cure such conduct, the
Executive shall then be entitled to a hearing before the Board. Such hearing
shall be held within 15 days of such notice to the Executive, provided he
requests such hearing within 10 days of the written notice from the Board of the
intention to terminate him for Cause. If, within five days following such
hearing, the Executive is furnished written notice by the Board confirming that,
in its judgment, grounds for Cause on the basis of the original notice exist, he
shall thereupon be terminated for Cause. No compensation or benefits shall be
paid or provided to Executive under this Agreement on account of a termination
for Cause, or for periods following the date when a termination for Cause is
effective, except for (i) Base Salary (as hereinafter defined) to the extent
already accrued, (ii) any incentive awards earned (but not
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yet paid), and (iii) any amounts earned, accrued or owing to Executive
but not yet paid under any provision of this Agreement. In the event
Executive's employment is terminated for Cause, Executive's rights under the
benefit plans of the Company shall be determined under the provisions of those
plans. Any waiver of notice shall be valid only if it is made in writing and
expressly refers to the applicable notice requirement of this Paragraph 3.3.
3.4. EARLY TERMINATION FOR DISABILITY. The Company may terminate
Executive's employment for Disability (as hereinafter defined) by giving
Executive thirty (30) days' advance notice in writing of such termination. For
all purposes under this Agreement, the term "DISABILITY" shall mean a
circumstance, as a result of which Executive, at the time notice is given, has
been unable by reason of his incapacity due to physical or mental illness to
perform his obligations under this Agreement for a period of not less than
eighteen (18) consecutive weeks, or fifty percent (50%) or more of the normal
working days throughout any 270 day period as determined by an approved medical
doctor. For this purpose an approved medical doctor shall mean a medical doctor
selected by the Company and the Executive. If the parties cannot agree on a
medical doctor, each party shall select a medical doctor and the two doctors
shall select a third who shall be the approved medical doctor for this purpose.
No compensation or benefits shall be paid or provided to Executive under this
Agreement on account of termination for Disability, or for periods following the
date when a termination for Disability is effective, except for (i) Base Salary
to the extent already accrued, (ii) any incentive awards earned (but not yet
paid), and (iii) any amounts earned, accrued or owing to Executive but not yet
paid under any provision of this Agreement. In the event Executive's employment
is terminated on account of Disability, Executive's rights under the benefit
plans of the Company shall be determined under the provisions of those plans.
Any waiver of notice shall be valid only if it is made in writing and expressly
refers to the applicable notice requirement of this Paragraph 3.4.
3.5. EARLY TERMINATION GENERALLY. The Company may terminate
Executive's employment prior to the end of the Employment Period for any reason
or no reason, but only by giving Executive thirty (30) days' advance notice of
such termination in writing. If the Company terminates Executive's employment
prior to the end of the Employment Period pursuant to this Paragraph 3.5 for any
reason other than Cause or Disability, Executive shall be entitled to receive
the payments and benefits referred to in Paragraph 11.1. below (subject to the
terms and conditions of said Paragraph), and Executive's rights under any
applicable benefit plans shall be determined under the provisions of those
plans. Any waiver of notice shall be valid only if it is made in writing and
expressly refers to the applicable notice requirement of this Paragraph 3.5.
3.6. EARLY TERMINATION ON ACCOUNT OF DEATH. If Executive's
employment is terminated by his death, the Company shall have no obligation to
pay or provide any compensation or benefits under this Agreement on account of
Executive's death, or for periods following Executive's death, except for (i)
Base Salary to the extent already accrued, (ii) any incentive awards earned (but
not yet paid), and (iii) any amounts earned, accrued or owing to Executive but
not yet paid under any provision of this Agreement; PROVIDED, however, that if,
prior to Executive's death, Executive was entitled to receive payments or
benefits under Paragraph 11.1. below, then the Beneficiary (as hereinafter
defined) shall be entitled to continue to receive those payments or benefits
(subject to the terms and conditions of said Paragraph) to
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the same extent that Executive would have been entitled to receive those
payments or benefits if he had not died. The rights of the Beneficiary
under the benefit plans of the Company in the event of Executive's death shall
be determined under the provisions of those plans.
3.7. EARLY TERMINATION BY EXECUTIVE FOR GOOD REASON. Executive may
voluntarily elect to resign his employment with the Company prior to the end of
the Employment Period for Good Reason (as hereinafter defined) upon giving the
Company thirty (30) days' advance notice in writing of such termination. If
Executive terminates his employment for Good Reason, Executive shall be entitled
to receive the payments or benefits referred to in Paragraph 11.1. below
(subject to the terms and conditions of said Paragraph), and Executive's rights
under the benefit plans of the Company shall be determined under the provisions
of those plans. Any waiver of notice shall be valid only if it is made in
writing and expressly refers to the applicable notice requirement of this
Paragraph 3.7. For all purposes of this Agreement, the term "GOOD REASON" means
the occurrence of any one or more of the following events without, in each case,
the prior written consent of Executive thereto:
(i) Any diminution of Executive's titles, responsibilities or
duties with the Company or the assignment to Executive of
titles, responsibilities or duties with the Company which
are inconsistent therewith, which remains uncured for five
(5) days following receipt of notice;
(ii) A substantial reduction, without good business reasons, of
the facilities and perquisites (including office space and
location) then available to Executive, which remains
uncured for five (5) days following receipt of notice;
(iii) Any reduction in the Base Salary then payable to, or Bonus
opportunity then available to, Executive or a failure by
the Company to pay any such amounts when due, which remains
uncured for five (5) days following receipt of notice;
(iv) A material reduction in the kind or level of employee
benefits and fringe benefits to which Executive is then
entitled, with the result that Executive's overall benefits
package is reduced in value by more than ten percent (10%),
which reduction remains uncured for five (5) days following
receipt of notice unless the Company reimburses Executive
for the economic difference;
(v) The involuntary relocation of Executive to a facility or
location outside of a fifteen (15) mile radius of the
existing office of Sibson & Company in Westwood,
California; provided, however, that Executive may be
required to spend a substantial amount of time traveling on
Company business;
(vi) Any breach by the Company of any provision of this
Agreement applicable to it which is material and adverse to
Executive, which
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remains uncured by the Company for five (5) calendar days
following receipt of such notice;
(vii) The Company's failure to substantially provide any material
employee benefits due to be provided to Executive, or to
reimburse Executive for the economic difference, which
failure remains uncured by the Company for five (5)
calendar days following receipt of such notice;
(viii) In the event the Company engages in a merger or other
business combination or a sale of all or substantially all
of its assets, the failure of any successor to the Company
to expressly assume the obligations of the Company under
this Agreement, except that any such successor need not
assume the obligations described in Paragraph 2 (Board
Seat) hereof;
(ix) A Change of Control (as hereinafter defined);
(x) The failure to elect Executive to the Board of Directors of
the Company as set forth in Paragraph 2, or his removal
from the Board of Directors during the Employment Period
for any reason other than a voluntary resignation or
Disability;
(xi) The failure of Knowledge Enterprises, Inc. ("KNOWLEDGE
ENTERPRISES") to grant Executive the options to purchase
Knowledge Enterprises stock on the terms set forth in
Paragraph 7.3, should Executive elect to receive such
options (it being agreed that, in the event of such
failure, the Company shall also be liable to pay Executive
promptly the value of such options as of the Commencement
Date as determined by the Black-Scholes Option Pricing
Model);
(xii) The stockholders of the Company fail to amend the Plan (as
defined in Paragraph 7.1.1) to permit the grant of the
Additional Options (as defined in Paragraph 7.1.2) or the
Special Options (as defined in Paragraph 7.1.3) under the
Plan (it being agreed that, in the event of such failure,
the Company shall also be liable to pay Executive promptly
the value of such Additional Options and Special Options as
of the Commencement Date as determined by the Black-Scholes
Option Pricing Model);
(xiii) Executive is not elected or appointed Chairman of the Board
of Directors prior to the second anniversary of the
Commencement Date;
(xiv) The Company consummates a material acquisition despite
written notice to the Board of Directors of Executive's
opposition to such acquisition; or
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(xv) If there is any change in the Chairmanship of the Board of
Directors prior to the second anniversary of the
Commencement Date, the failure to elect or appoint as
Chairman either Executive or another candidate to whom
Executive consents (such consent not to be unreasonably
withheld).
Executive's continued employment during the thirty (30) day period referred to
above in this Paragraph 3.7 shall not constitute Executive's consent to, or a
waiver of rights with respect to, any act or failure to act constituting Good
Reason hereunder. For purposes of this Agreement, "CHANGE OF CONTROL" means the
occurrence of any of the following:
(i) The Company is merged, consolidated or reorganized into or
with another corporation or legal person, and as a result
of such merger, consolidation or reorganization less than
fifty percent (50%) of the combined voting power of the
then outstanding securities of such resulting corporation
or person immediately after such transaction are held in
the aggregate by the holders of voting stock of the Company
immediately prior to such transaction;
(ii) The Company sells or otherwise transfers all or
substantially all of its assets to another corporation or
other legal person, and as a result of such sale or
transfer less than fifty percent (50%) of the combined
voting power of the then outstanding voting stock of such
corporation or person immediately after such sale or
transfer is held in the aggregate by the holders of voting
stock of the Company immediately prior to such sale or
transfer;
(iii) The approval by the stockholders of the Company of a
complete liquidation or dissolution of the Company;
(iv) A change in the composition of the Board of Directors
during any period of two (2) consecutive years commencing
on the Commencement Date such that individuals who at the
beginning of such period were members of the Board of
Directors cease for any reason to constitute at least a
majority thereof, unless the election, or the nomination
for election by the Company's stockholders, of each new
director was approved by a vote of at least two-thirds of
the directors then still in office who were directors at
the beginning of the period;
(v) The appointment or election of a new Chairman of the Board
of Directors prior to the second anniversary of
Commencement Date other than Executive or another candidate
to whom Executive consents (such consent not to be
unreasonably withheld); or
(vi) Any "person" (other than Executive and Nextera Enterprises
Holdings, Inc. or any of their respective affiliates) as
such term is
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used in Sections 3(a)(9) and 13(d) of the Securities
Exchange Act of 1934, becomes a "beneficial owner" as such
term is used in Rule 13d-3 promulgated under such Act, of
25% or more of the voting stock of the Company in a single
transaction or a series of related transactions.
3.8. EARLY TERMINATION BY EXECUTIVE FOR OTHER THAN GOOD REASON.
Executive may voluntarily elect to resign his employment with the Company prior
to the end of the Employment Period for any reason or no reason upon sixty (60)
days advance written notice, and such termination shall not be, nor shall it be
deemed to be, a breach of this Agreement. Upon such termination, Executive shall
be entitled to receive the payments and benefits referred to in Paragraph 11.1.2
below.
4. PLACE OF EMPLOYMENT. The principal place of employment of Executive
shall be at the Company's executive offices in the Los Angeles, California area.
The parties acknowledge, however, that Executive may be required to spend a
substantial amount of time traveling in connection with the performance of his
duties hereunder.
5. BASE SALARY. For all services to be rendered by Executive pursuant
to this Agreement, the Company shall pay to Executive during the Employment
Period a base salary (the "BASE SALARY") at an annual rate of not less than
Seven Hundred Fifty Thousand Dollars ($750,000). The Base Salary shall be paid
in periodic installments in accordance with the Company's regular payroll
practices, subject to all applicable taxes and withholding. The Board of
Directors shall review the amount of the Base Salary at least annually as of the
payroll payment date nearest each anniversary of the Commencement Date and,
taking into consideration the merits of Executive's performance, may (but shall
have no obligation to) increase but not decrease the amount thereof.
6. BONUS.
6.1 Beginning with the Company's 2001 fiscal year end and for each
fiscal year thereafter during the Employment Period, Executive shall be eligible
to receive an annual bonus (the "BONUS"), at the sole, absolute, and
unrestricted discretion of the Board of Directors, in an amount of up to one
hundred percent (100%) of Executive's Base Salary for such fiscal year (the
"TARGET AMOUNT") based upon the Company's achievement of certain operating
income and revenue growth targets established by the Board of Directors (such
criteria being hereinafter collectively referred to as the "TARGETS"). Fifty
percent (50%) of the Bonus shall be determined by Targets based on the Company's
achievement of operating income targets. Fifty percent (50%) of the Bonus shall
be determined by the Company's achievement of revenue growth targets. The
Targets for each fiscal year after 2001 during the Employment Period shall be
established by the Board of Directors in consultation with Executive not less
than 45 days prior to the beginning of such fiscal year. The parties acknowledge
that it is their intention that the Targets for each fiscal year shall be set at
levels that are aggressive but achievable. In the event that one or the other,
but not both of the Targets is achieved in any fiscal year during the Employment
Term, the Board of Directors may (but shall have no obligation to) award
Executive a partial bonus with respect to the Target that was not achieved and,
if the Board does so, such bonus shall be in such amount as the Board in its
sole, absolute
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and unrestricted discretion, shall determine. For fiscal year 2001, the
operating income Target shall be an increase in the Company's operating income
over the Company's fiscal year 2000 operating income in the range of 15% to 20%.
If the Company achieves an increase in operating income in fiscal year 2001 of
at least 15% over fiscal year 2000 operating income, Executive shall be entitled
to receive 1/3 of the 50% portion of the Target Amount allocated to this Target.
If fiscal year 2001 operating income increases by between 15% and 20% over
fiscal year 2000 operating income, the balance of the 50% portion of the Target
Amount will be prorated accordingly. Executive shall be entitled to receive the
entire 50% portion of the Target Amount allocated to this Target if fiscal year
2001 operating income increases by 20% over fiscal year 2000 operating income.
For fiscal year 2001, the revenue growth Target shall be an increase in the
Company's revenues over fiscal year 2000 revenues in the range of 10% to 20%. If
the Company achieves an increase in fiscal year 2001 revenues of at least 10%
over fiscal year 2000 revenues, Executive shall be entitled to receive 1/3 of
the 50% portion of the Target Amount allocated to this Target. If fiscal year
2001 revenues increase by between 10% and 20% over fiscal year 2000 revenues,
the balance of the 50% portion of the Target Amount allocated to this Target
will be prorated accordingly. Executive shall be entitled to receive the entire
50% portion of the Target Amount allocated to this Target if fiscal year 2001
revenues increase by 20% over fiscal year 2000 revenues. If the Company fails to
achieve in fiscal year 2001 an increase of at least 15% in operating income or
an increase of at least 10% in revenues over fiscal year 2000, Executive shall
be entitled to no Bonus for that fiscal year. For purposes of this Paragraph
6.1, the operating income and revenues of "the Company" shall mean the Company's
existing core business units (Lexecon, Inc.; Sibson & Company; and Nextera
Interactive, Inc.). In the event of the Company's acquisition of additional
business units during the Employment Term, the Board of Directors and Executive
will discuss revised Targets.
6.2 Any Bonus payable hereunder shall be payable in a single
installment within thirty (30) days following the date on which audited
financial statements for the fiscal year to which such Bonus relates are
delivered to the Board of Directors, or as otherwise agreed by Executive and the
Board of Directors.
6.3 In addition to the Bonus, the Company shall pay Executive a
one-time cash bonus in the amount of $250,000 to compensate Executive for the
bonus opportunity he would have enjoyed for calendar year 2000 had he remained
an employee of his prior employer, less any portion of said bonus paid to
Executive by his prior employer; said payment to be made by the Company at the
time that Executive's prior employer pays such bonus or would have made the
bonus payment had he continued his employment.
7. STOCK AND STOCK OPTIONS.
7.1 OPTION GRANTS. The Company represents to Executive that as of
the close of business on October 17, 2000, the number of shares of its Class A
Common Stock outstanding was 31,396,789. The Company agrees to grant to
Executive options to purchase 2,569,840 shares of the Company's Class A Common
Stock (the "COMMON STOCK") as set forth in Paragraphs 7.1.1, 7.1.2 and 7.1.3
below:
7.1.1 INITIAL OPTIONS. Effective as of the Commencement Date, and
contingent upon the execution of this Agreement by the Executive, the Company
shall grant
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the Executive options (the "INITIAL OPTIONS") to purchase an aggregate of
eight hundred fifty thousand (850,000) shares of Common Stock under the
Amended and Restated 1998 Equity Participation Plan of Nextera Enterprises, Inc.
(the "PLAN"). The Initial Options shall be governed by the terms and conditions
of the Non-Qualified Stock Option Agreement of Nextera Enterprises, Inc., the
form of which is attached hereto as Exhibit A (the "OPTION AGREEMENT"), and the
Plan. The exercise price per share of Common Stock covered by the Initial
Options shall be equal to the Fair Market Value (as defined in the Plan) of a
share of the Common Stock on the date of grant. The Initial Options shall vest
and become exercisable over four (4) years at the rate of 25% on the first
anniversary of the date of grant, and 6.25% at the end of each calendar quarter
after the first anniversary, for the next twelve (12) quarters, subject to
acceleration of vesting and exercisability as described in the Option Agreement.
7.1.2 ADDITIONAL OPTIONS. Effective as of the Commencement Date, and
contingent upon the execution of this Agreement by the Executive, the Company
shall grant the Executive options (the "ADDITIONAL OPTIONS") to purchase an
aggregate of 719,840 shares of Common Stock under the Plan. The Additional
Options shall be governed by the terms and conditions of the Non-Qualified Stock
Option Agreement of Nextera Enterprises, Inc. (Contingent Option), the form of
which is attached hereto as Exhibit B (the "CONTINGENT OPTION AGREEMENT"), and
the Plan. The exercise price per share of Common Stock covered by the Additional
Options shall be equal to the Fair Market Value (as defined in the Plan) of a
share of the Common Stock on the date of grant. The Additional Options shall
vest and become exercisable on the same basis as set forth in Paragraph 7.1.1,
subject to acceleration of vesting and exercisability as described therein. The
grant of the Additional Options is subject to the approval by the stockholders
of the Company of an amendment to the Plan as described in the Contingent Option
Agreement.
7.1.3 SPECIAL OPTIONS. Effective as of the Commencement Date, and
contingent upon the execution of this Agreement by the Executive, the Company
shall grant the Executive options (the "SPECIAL OPTIONS") to purchase one
million (1,000,000) shares of Common Stock. The Special Options shall, to the
maximum extent possible, be granted under the Plan. The Special Options shall be
governed by the terms and conditions of the Non-Qualified Stock Option Agreement
of Nextera Enterprises, Inc. (Special Option), the form of which is attached
hereto as Exhibit C (the "SPECIAL OPTION AGREEMENT"), and the Plan. The exercise
price (the "EXERCISE PRICE") per share of Common Stock covered by the Special
Options shall be equal to the Fair Market Value (as defined in the Plan) of a
share of the Common Stock on the date of grant. The Special Options shall vest
and become exercisable on the fifth anniversary of the Commencement Date;
provided, however, that the Special Options shall vest and become exercisable in
full for the balance of their original ten-year term on the third anniversary of
the Commencement Date if (i) Executive is still employed by the Company on the
third anniversary of the Commencement Date and (ii) either (x) the average of
the closing prices or last sales prices of the Common Stock over the last 180
days of the third year following the Commencement Date is at least $10 per share
(as appropriately adjusted for any stock splits, stock dividends,
reclassifications, or similar events), or (y) the Company's net income after tax
is equal to or greater than $12,000,000 (excluding one-time charges) during any
period of twelve consecutive months during the three (3) year period commencing
on the Commencement Date, subject to further acceleration of vesting and
exercisability as described in the Special Option
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Agreement. The grant of the Special Options is subject to the approval by
the stockholders of the Company of an amendment to the Plan as described in
the Special Option Agreement. If and only if the Special Options vest and become
exercisable, the Company shall pay to Executive a cash bonus in one or more
installments (the "SPECIAL BONUS"), in an aggregate amount equal to one million
times the Exercise Price (the "MAXIMUM AMOUNT"). The Special Bonus(es) shall be
paid if and when Executive elects to exercise the Special Options, with each
Special Bonus payment equal to the number of shares of Common Stock acquired
upon exercise of the Special Options times the Exercise Price, subject to all
applicable taxes and withholding. In no event shall the aggregate Special Bonus
payments exceed the Maximum Amount. Executive shall be solely responsible for
any income taxes and excise taxes resulting from the Special Options and the
Special Bonus(es). The Special Options shall not be transferable by Executive
during Executive's lifetime.
7.2 DILUTION PROTECTION. The Company agrees that in the event the
Company makes an offering of, or distribution to, its stockholders of rights
("Rights") to purchase additional shares of Common Stock at any time after the
Commencement Date and prior to the first anniversary of the Commencement Date,
or an equity offering or offerings ("Equity Offerings") in connection with a
recapitalization or restructuring of the Company's current capital structure
during such time, the Company shall grant to Executive options (the "RIGHTS
OPTIONS") to purchase additional shares of Common Stock in an amount equal to
the lesser of (i) five percent (5%) of the aggregate number of shares of Common
Stock issued or issuable upon exercise of the Rights and pursuant to the Equity
Offerings, or (ii) 930,160 shares. The Rights Options shall, to the maximum
extent possible, be granted under the Plan and shall have an exercise price per
share of Common Stock covered thereby equal to the greater of (i) the Fair
Market Value of a share of the Common Stock on the date of grant, or (ii) the
exercise or purchase price of a share of the Common Stock associated with the
Rights or the purchase price of a share of the Common Stock pursuant to the
Equity Offerings as the case may be. The Rights Options, if granted, shall vest
on the same basis as set forth in Paragraph 7.1.1, subject to similar
acceleration of vesting and exercisability as described in the Option Agreement.
7.3 KNOWLEDGE ENTERPRISES STOCK OPTIONS. The Company shall recommend
to the Board of Directors of Knowledge Enterprises that, effective as of the
Commencement Date, Executive shall receive a grant of Knowledge Enterprises
non-qualified options to purchase 200,000 shares of Knowledge Enterprises Class
A common stock at an exercise price of $3.00 per share. Such options shall vest
and become exercisable 25% on each anniversary of the grant date. The option
shall be subject to all of the terms of the Knowledge Enterprises Non-Qualified
Stock Option Plan and the establishment of said Plan. On the Commencement Date,
and in lieu of said Knowledge Enterprises options, Executive may choose to have
an additional grant of options to purchase shares of Company Class A common
stock owned by Nextera Enterprises Holdings, Inc. (the "NEH OPTIONS") at a per
share exercise price equal to the fair market value of a share of Common Stock
on the Commencement Date. The number of NEH Options granted to Executive shall
equal $600,000 divided by the fair market value of a share of Common Stock on
the Commencement Date. The NEH Options shall vest and become exercisable on the
same basis as the Initial Options and otherwise be on similar terms to the
Initial Options. At the next meeting of the Board of Directors of Knowledge
Enterprises, the Company shall also recommend to the Board of Directors of
Knowledge Enterprises that Executive be nominated to serve as a director of
Knowledge Enterprises, and
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shall use all reasonable efforts to cause Executive to be elected to the
Board of Directors of Knowledge Enterprises, with a view toward having
Executive serve as a director throughout the Employment Period. If elected,
Executive shall serve in such capacity during the Employment Period without
additional compensation, subject to Executive's right to resign from the Board
of Directors of Knowledge Enterprises at any time.
7.4 CHANGE OF CONTROL. All Initial Options, Additional Options,
Rights Options (collectively "THE PLAN OPTIONS") and Special Options not then
vested shall immediately vest and become exercisable in full at the effective
time of a Change of Control, in the event Executive is then employed by the
Company.
7.5 REGISTRATION OF COMMON STOCK.
7.5.1. PLAN OPTIONS AND SPECIAL OPTIONS. The Company agrees to
file with the Securities and Exchange Commission (the "SEC") under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), one or more
registration statements on Form S-8 (collectively, "S-8 REGISTRATION STATEMENT")
covering the issuance of Common Stock to the Executive pursuant to the exercise
of the Plan Options and the Special Options. An S-8 Registration Statement
covering the Plan Options shall be filed by the Company as soon as reasonably
practicable, but in no event later than the earlier of (i) the first anniversary
of the Commencement Date, or (ii) within thirty (30) days from any termination
of Executive's employment that, under Paragraph 11.1.3 below, results in the
acceleration of the vesting and exercisability of the unvested portion of the
Plan Options. An S-8 Registration Statement covering the Special Options shall
be filed by the Company not later than the earlier of (i) the vesting of the
Special Options pursuant to their terms, or (ii) within thirty (30) days from
any termination of Executive's employment that, under Paragraph 11.1.3 below,
results in the acceleration of the vesting and exercisability of the unvested
portion of the Special Options. Additionally, upon Executive's written request,
the Company agrees to file with the SEC one or more reoffer prospectuses
prepared in accordance with the requirements of Part I of Form S-3
(collectively, the "REOFFER PROSPECTUS") and file the Reoffer Prospectus as a
post-effective amendment to the applicable S-8 Registration Statement. The
Reoffer Prospectus shall cover the resale by the Executive of the shares of
Common Stock acquired upon exercise of the Plan Options and the Special Options.
A Reoffer Prospectus relating to the Plan Options shall be filed by the Company
not later than the earlier of (i) the first anniversary of the Commencement
Date, or (ii) within thirty (30) days from any termination of Executive's
employment that, under paragraph 11 below, results in the acceleration of the
vesting and exercisability of the unvested portion of the Plan Options. A
Reoffer Prospectus relating to the Special Options shall be filed by the Company
not later than the earlier of (i) the vesting and exercisability of the Special
Options pursuant to their terms, or (ii) within thirty (30) days from any
termination of Executive's employment that, under Paragraph 11.1.3 below,
results in the acceleration of the vesting and exercisability of the unvested
portion of the Special Options.
7.5.2 NEH OPTIONS. In the event that the Executive elects
pursuant to Paragraph 7.3 to receive the grant of the NEH Options, upon
Executive's written request the Company agrees to file with the SEC a
registration statement on Form S-3 (the "S-3 REGISTRATION STATEMENT") under the
Securities Act. The S-3 Registration Statement shall cover the resale by the
Executive of the Common Stock acquired by the Executive from Nextera
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Enterprises Holdings, Inc. upon exercise of the NEH Options. The S-3
Registration Statement shall be filed by the Company with the SEC within thirty
(30) days from the date of Executive's exercise of the NEH Options and the
Company shall use its reasonable best efforts to have the S-3 Registration
Statement declared effective as soon as practicable thereafter.
7.5.3. VOLUME RESTRICTIONS. The Executive agrees that Executive
may sell shares of Common Stock acquired upon exercise of the Plan Options, the
Special Options and the NEH Options, if any (collectively, "OPTION STOCK"), only
in accordance with the volume limitations set forth herein. Executive agrees
that, in any period of three (3) consecutive months, whether during the
Employment Period or after the termination thereof, Executive's aggregate sales
of Option Stock pursuant to (i) the S-8 Registration Statement, (ii) the Reoffer
Prospectus, and (iii) Rule 144 under the Securities Act, shall not exceed the
sum of (x) 642,460 shares, plus (y) twenty-five percent (25%) of the shares of
Common Stock acquired by Executive upon exercise of the Rights Options, plus (z)
twenty-five percent (25%) of the shares of Common Stock acquired by Executive
upon exercise of the NEH Options. For purposes of determining the aggregate
sales of Option Stock by the Executive for purposes of the volume limitations
set forth herein, all sales of Option Stock by any Family Member (as hereinafter
defined) of Executive within a period of three (3) consecutive months shall be
aggregated with sales of Option Stock by the Executive during such period.
7.6 TRANSFER OF OPTIONS. The Company shall request that the Board
adopt an amendment the Plan to permit the transfer of Plan Options by the
Executive to any child, stepchild, grandchild, parent, stepparent,
grandparent, spouse, sibling, niece, nephew, mother-in-law, father-in-law,
son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including
adoptive relationships, a trust in which these persons (or the Executive)
control the management of assets, and any other entity in which these persons
(or the Executive) own more than fifty percent of the voting interests
(collectively, ("FAMILY MEMBERS"). In the event that such amendment is approved
by the Board, the Executive shall have the right to transfer Plan Options to
Family Members in accordance with the Plan, as amended.
8. EXPENSES.
8.1 LEGAL EXPENSES. Executive shall be entitled to prompt
reimbursement by the Company for all reasonable legal fees incurred by
Executive in connection with the negotiation and completion of this Agreement,
not to exceed $27,500; PROVIDED, however, that Executive shall properly account
for such expenses in accordance with the policies and procedures of the Company.
8.2 ORDINARY EXPENSES. Executive shall be entitled to prompt
reimbursement for all reasonable, ordinary and necessary travel, entertainment,
and other expenses incurred by Executive during the Employment Period (in
accordance with the policies and procedures established for senior executive
officers of the Company) in the performance of his duties and responsibilities
for the Company under this Agreement; PROVIDED, however, that Executive shall
properly account for such expenses in accordance with the policies and
procedures of the Company.
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9. EMPLOYEE BENEFIT PLANS AND FRINGE BENEFITS. During the Employment
Period, Executive shall be entitled to participate in all employee benefit and
fringe benefit plans or programs of the Company, if any (including but not
limited to medical benefits, life insurance, disability benefits, retirement,
profit sharing, vacation, and holidays), on the same basis as other senior
managers of the Company, to the extent that his position, tenure, salary, age,
health and other qualifications make him eligible to participate, subject to the
terms, conditions, rules and regulations applicable thereto. During the
Employment Period, the Company shall provide Executive with a car allowance of
$2,000 per month. Executive may travel first class on Company business in his
discretion. During the Employment Period, the Company shall ensure that the
group medical coverage available to its employees includes an indemnity plan
feature with an out-of-pocket cap no higher than $2,500 per year and a co-pay no
higher than 20%, or, if the group medical coverage does not include such an
indemnity plan, provide such a plan to Executive at its expense on a
supplemental basis. Executive shall be entitled to professional services from
the Company's independent auditing firm, including but not limited to personal
tax return preparation, personal tax planning, and personal financial planning
at the Company's expense, not to exceed $5,000 per year. During the Employment
Period, the Company shall maintain, at its expense, life insurance coverage for
Executive providing for a benefit of $2,000,000 (subject to Executive meeting
the insurer's underwriting criteria and other eligibility requirements) and
business travel accident insurance providing for a benefit of $2,000,000. During
the Employment Period, the Company shall supplement Executive's Base Salary in
an amount not to exceed $20,000 per year to be applied to the cost of disability
income insurance coverage to be obtained by Executive in addition to the
Company's standard group coverage.
10. OTHER ACTIVITIES. During the Employment Period, Executive shall
devote substantially all of his working time and efforts during normal business
hours to the business and affairs of the Company and to the diligent and
faithful performance of the duties and responsibilities duly assigned to him
pursuant to this Agreement, except for vacations, holidays and absences due to
illness. However, Executive may devote a reasonable amount of his time to civic,
community, or charitable activities and, with the prior written approval of the
Board of Directors, to serve as a director of other corporations.
11. TERMINATION BENEFITS. In the event Executive's employment
terminates prior to the end of the Employment Period, then Executive shall be
entitled to receive severance and other benefits as follows:
11.1 SEVERANCE.
11.1.1 INVOLUNTARY TERMINATION. If the Company terminates
Executive's employment for reasons other than for Disability or Cause, or
if Executive terminates his employment for Good Reason, then subject to
Executive's execution of a general release of all claims in law and equity
against the Company arising out of the termination of his employment, in a form
reasonably satisfactory to the Company, Executive shall be entitled to
continuing monthly payments of his Base Salary until the earlier to occur of (i)
the later of (x) the Expiration Date or (y) the first anniversary of the date of
termination of Executive's employment or (ii) a material breach by Executive of
his obligations under Paragraphs 12 or 13 hereof that remains uncured for five
(5) calendar days following notice by the Company of such breach. In the event
that the Company provides Executive with a notice of non-renewal pursuant
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to Paragraph 3.2 prior to the end of the Initial Term, the Company shall,
subject to the same conditions and in the same manner as set forth
earlier in this Paragraph 11.1.1, make continuing monthly payments to Executive
of his Base Salary for a period of one (1) year following the date of
termination of Executive's employment or until a material breach by Executive of
his obligations under Paragraphs 12 or 13 hereof.
11.1.2 OTHER TERMINATION. If the Company terminates Executive's
employment for reasons of Disability or Cause, or if Executive terminates his
employment for other than Good Reason, Executive shall not be entitled to
receive any severance and shall be eligible to receive only such benefits as may
then be established under the Company's existing benefit plans and policies at
the time of such termination, subject to the terms of such plans and policies,
and as may be otherwise specifically provided for herein.
11.1.3 OPTIONS.
11.1.3.1 TERMINATION DURING THE FIRST YEAR OF EMPLOYMENT
PERIOD. If, during the first twelve (12) months following the Commencement
Date, the Company terminates Executive's employment for reasons other than
Disability or Cause, or if Executive terminates his employment for Good
Reason, then the vesting of the unvested portion of the Plan Options and Special
Options shall automatically accelerate upon termination of Executive's
employment and Executive shall thereafter have the right to exercise all or any
portion of such Plan Options and Special Options in addition to any portion of
the Plan Options and Special Options exercisable prior to such event for the
balance of their original ten-year term.
11.1.3.2 TERMINATION AFTER THE FIRST YEAR OF EMPLOYMENT
PERIOD. If, after the first anniversary of the Commencement Date, the Company
terminates Executive's employment for any reason other than Cause, or if
Executive terminates his employment for Good Reason, then the vesting of the
unvested portion of the Plan Options and Special Options shall automatically
accelerate upon termination of Executive's employment and Executive shall
thereafter have the right to exercise all or any portion of such Plan Options
and Special Options in addition to any portion of the Plan Options and Special
Options exercisable prior to such event for the balance of their original
ten-year term.
11.1.3.3 NOTICE OF NON-RENEWAL. If, prior to the end of
the Initial Term, the Company provides Executive with a notice of
non-renewal as set forth in Paragraph 3.2, above, then the vesting of the
unvested portion of the Plan Options shall automatically accelerate upon the
third anniversary of the Commencement Date if Executive is then employed by the
Company, and Executive shall thereafter have the right to exercise for the
balance of their original ten-year term all or any portion of such Plan Options.
11.1.4 NO DUTY TO MITIGATE. Executive shall not be required to
mitigate the amount of any payment contemplated by this Agreement (whether by
seeking new employment or in any other manner).
12. NON-COMPETE, NON-SOLICITATION, PROPRIETARY INFORMATION,
CONFIDENTIALITY AND INVENTIONS AGREEMENTS. Executive agrees to sign the
Noncompete, Non-Solicitation,
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Proprietary Information, Confidentiality and Inventions Agreement (the
"NONCOMPETE AGREEMENT"), the form of which is attached hereto as Exhibit "D" and
to comply with such Noncompete Agreement during the Employment Period and
thereafter, in accordance with the terms of the Noncompete Agreement.
13. NON-SOLICITATION. Executive covenants and agrees with the Company
that during the Employment Period and for a period expiring eighteen (18) months
after the date of termination or expiration thereof, neither Executive nor any
Controlled Affiliate shall, whether on his or its own behalf or on behalf of any
other person, firm, partnership, corporation or other business venture
(hereinafter, a "person"):
(a) solicit or cause to be solicited, or aid in the solicitation
of business or services of the type engaged in or provided by
the Company from firms for which the Company did work or from
whom the Company actively solicited business during
Executive's employment with the Company or any of its
subsidiaries or affiliates; and
(b) directly or indirectly contact or solicit any employee of the
Company with regard to present, future or contemplated
employment opportunities on behalf of himself, or any other
person, firm, corporation, governmental agency or other
entity.
As used herein, "Controlled Affiliate" of Executive means any person or entity
which, directly or indirectly, is at any time controlled by Executive. For
purposes of this definition, "control" of a person or entity means the power,
direct or indirect, to direct or cause the direction of the management and
policies of such person, whether by contract or otherwise.
14. NO ADEQUATE REMEDY AT LAW.
14.1. EQUITABLE RELIEF. In the event that Executive shall breach
any of the provisions of Paragraphs 12 or 13 hereof, or in the event that any
such breach is threatened by Executive, in addition to and without limiting or
waiving any other remedies available to the Company in law or in equity, the
Company shall be entitled to immediate injunctive relief in any court, domestic
or foreign, having the capacity to grant such relief, to restrain such breach or
threatened breach and to enforce the provisions of such Paragraphs. Executive
acknowledges that it is impossible to measure in money the damages that the
Company will sustain in the event that Executive breaches or threatens to breach
any of the provisions of such Paragraphs and, in the event that the Company
shall institute any action or proceeding to enforce those provisions seeking
injunctive relief, Executive hereby waives and agrees not to assert and shall
not use as defense thereto the claim or defense that the Company has an adequate
remedy at law. The foregoing shall not prejudice the right of the Company to
require Executive to account for and pay over to it the amount of any actual
damages incurred by the Company as a result of any such breach.
14.2. The parties acknowledge that (i) the provisions of Paragraphs
12 and 13 are essential to protect the business and goodwill of the Company, and
(ii) the foregoing
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restrictions are under all of the circumstances reasonable and necessary
for the protection of the Company and its business. If, however, at the
time of enforcement of any or all of such paragraphs or any other provision
of this Agreement, a court or arbitrator shall hold that the duration, scope or
area restriction or any other provision hereof is unreasonable under
circumstances now or then existing, the parties hereto agree that the maximum
duration, scope or area reasonable under the circumstances shall be substituted
for the stated duration, scope or area.
15. RIGHT TO ADVICE OF COUNSEL. Executive acknowledges that he has
consulted with counsel and is fully aware of his rights and obligations under
this Agreement. Executive acknowledges that the stock options, payments, and
other matters provided in this Agreement have tax consequences, that the Company
(or its counsel) has not provided any tax advice to Executive, and that
Executive is solely responsible for consulting with an accountant, legal
counsel, or other tax advisor regarding the tax consequences of this Agreement.
16. SUCCESSORS. The Company shall require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of its business and/or assets to expressly assume and agree to
perform 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.
Failure of the Company to obtain such assumption agreement prior to or in
connection with the effectiveness of any such succession shall constitute Good
Reason, within the meaning of Paragraph 3.7 (viii) hereof, for Executive to
terminate his employment hereunder. If Executive terminates his employment for
such Good Reason, he shall be entitled to the payments and benefits described in
Paragraph 11.1. of this Agreement, subject to the terms and conditions of said
Paragraph.
17. ARBITRATION.
17.1. GENERAL RULE. Any dispute or controversy arising under
or in connection with this Agreement shall be settled exclusively by
arbitration in Los Angeles, California, in accordance with the rules of the
American Arbitration Association then in effect by an arbitrator selected by the
Company, on the one hand, and Executive, on the other, within ten (10) days
after any party has notified the others in writing that it desires a dispute
between them to be settled by arbitration. In the event the parties cannot agree
on such arbitrator within such ten (10) day period, the Company, on the one
hand, and Executive, on the other, shall each select an arbitrator and inform
the other party in writing of such arbitrator's name and address within five (5)
days after the end of such 10-day period and the arbitrators so selected shall
select a third arbitrator within fifteen (15) days thereafter; PROVIDED,
however, that in the event of a failure by the Company or Executive to select an
arbitrator and notify the other party of such selection within the time period
provided above, the arbitrator selected by the other party shall be the sole
arbitrator of the dispute. The decision of the arbitrator or a majority of the
panel of arbitrators shall be binding upon the parties, and judgment in
accordance with that decision may be entered in any court having jurisdiction
over the parties.
17.2 COSTS AND ATTORNEYS' FEES. The Company and Executive
acknowledge the importance of resolving disputes amicably, utilizing mediation
and other forms of alternative dispute resolution prior to resort to
arbitration, and, when arbitration is
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unavoidable, to conducting the arbitration proceeding in an expeditious
and economical manner. To that end, in the event of a dispute that cannot
be resolved amicably and informally, the Company shall bear the cost of the
mediation (if any) and arbitration proceeding. Each party shall bear his or
its reasonable costs and expenses, including reasonable attorneys' fees incurred
in the mediation, if any, and arbitration proceeding.
17.3. INJUNCTIVE RELIEF. Notwithstanding the foregoing, each
party hereto specifically reserves the right to seek equitable remedies in a
court of competent jurisdiction.
18. ABSENCE OF CONFLICT. If Executive is enjoined from performing
his duties under this Agreement due to a breach, conflict or constraint arising
from any prior employment or consulting agreement or relationship to which
Executive was a party, or if Executive is prevented from performing all or
substantially all of his duties as President and Chief Executive Officer due to
such a breach, conflict, or constraint, the Company may give written notice to
Executive that the Agreement shall have no further force and effect, and any
Options not yet vested shall be forfeited. Executive's termination pursuant to
this Paragraph shall be deemed a termination for Cause, but neither such
termination nor the circumstances resulting in such termination shall give rise
to any claim for damages or other claim whether at law or in equity by the
Company against Executive, or vice versa.
19. INDEMNIFICATION AND DIRECTORS' AND OFFICERS' LIABILITY INSURANCE.
19.1. The Company agrees that if Executive is made a party, or is
threatened to be made a party, to any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "Proceeding"), by reason of the
fact that he is or was a director, officer or employee of the Company or is or
was serving at the request of the Company as a director, officer, member,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, including service with respect to employee benefit plans (as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974
("ERISA")), whether or not the basis of such Proceeding is Executive's alleged
action in an official capacity while serving as a director, officer, member,
employee or agent, Executive shall be indemnified and held harmless by the
Company to the fullest extent legally permitted or authorized by the Company's
articles of incorporation or bylaws or resolutions of the Company's Board of
Directors or, if greater, by the laws of the State of Delaware, against all
cost, expense, liability and loss (including, without limitation, attorneys'
fees, judgments, fines, ERISA excise taxes or other liabilities or penalties and
amounts paid or to be paid in settlement) reasonably incurred or suffered by
Executive in connection therewith, and such indemnification shall continue as to
Executive even if he has ceased to be a director, officer, member, employee or
agent of the Company or other entity and shall inure to the benefit of
Executive's heirs, executors and administrators; provided, however, that this
Paragraph shall not apply to any excise taxes imposed pursuant to Section 4975
of the Internal Revenue Code of 1986, as amended. The Company shall advance to
Executive all reasonable costs and expenses incurred by him in connection with a
Proceeding within 20 calendar days after receipt by the Company of a written
request for such advance, subject to Executive reasonably cooperating with the
Company in connection with any such Proceeding. Such request shall include an
undertaking by Executive to
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repay the amount of such advance if it shall ultimately be determined
that he is not entitled to be indemnified against such costs and expenses.
19.2. Neither the failure of the Company (including its board of
directors, independent legal counsel or stockholders) to have made a
determination prior to the commencement of any proceeding concerning payment of
amounts claimed by Executive under Paragraph 19.1 above that indemnification of
Executive is proper because he has met the applicable standard of conduct, nor a
determination by the Company (including its board of directors, independent
legal counsel or stockholders) that Executive has not met such applicable
standard of conduct, shall create a presumption that Executive has not met the
applicable standard of conduct.
19.3 The Company agrees to continue and maintain a directors'
and officers' liability insurance policy covering the Executive during the term
of his employment and for six years thereafter with no less favorable terms than
those which apply to any other present or former director or officer of the
Company
20. ASSIGNMENT. This Agreement and all rights under this Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
parties hereto and their respective personal or legal representatives,
executors, administrators, heirs, distributees, devisees, legatees, successors
and assigns. This Agreement is personal in nature, and neither of the parties to
this Agreement shall, without the written consent of the other party, assign or
transfer this Agreement or any one or more of its rights or obligations under
this Agreement to any other person or entity, except that the Company may assign
or transfer this Agreement to any successor entity as provided in Paragraph 16;
PROVIDED, that such assignment shall not relieve the assigning party of its
obligations hereunder. If Executive should die while any amounts are still
payable, or any benefits are still required to be provided to Executive
hereunder, all such amounts or benefits, unless otherwise provided herein, shall
be paid or provided in accordance with the terms of this Agreement to
Executive's devisee, legatee, or other designee or, if there by no such
designee, to Executive's estate (in each case, a "BENEFICIARY").
21. NOTICES. For purposes of this Agreement, notices and other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; five (5) business days after being deposited in the mail, postage
prepaid, if mailed; when answered back if telexed; when receipt acknowledged, if
telecopied; and the next business day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next day delivery, addressed as
follows:
If to Executive: Xxxxx Xxxxxxxxx
000 Xxxx Xxxx
Xxxxxx xxx Xxx, XX 00000
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With a copy to: Xxxxxx X. Xxxxxx
Law Offices of Xxxxxx X. Xxxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
If to the Company: Nextera Enterprises, Inc.
Xxx Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxx
With a copy to: Xxxxxxx X. Xxxxx
Xxxxx & Xxxxxxx
000 Xxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
or to such other address or the attention of such other persons as the recipient
party has previously furnished to the other parties in writing in accordance
with this paragraph.
22. INTEGRATION. This Agreement and the exhibits hereto represent
the entire agreement and understanding among the parties as to the subject
matter hereof and supersede all prior or contemporaneous agreements whether
written or oral. This Agreement and the exhibits thereto supersede all prior
negotiations and discussions relating to the employment of Executive by the
Company. No waiver, alteration, or modification of any of the provisions of this
Agreement shall be binding unless in writing and signed by duly authorized
representatives of the parties hereto.
23. WAIVER. Failure or delay on the part of either party hereto to
enforce any right, power, or privilege hereunder shall not be deemed to
constitute a waiver hereof. Additionally, a waiver by either party for a breach
of any provision hereof by the other party shall not operate as or be construed
to constitute a waiver of any subsequent breach by such other party.
24. SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
25. HEADINGS. The headings of the paragraphs contained in this
Agreement are for reference purposes only and shall not in any way affect the
meaning or interpretation of any provision of this Agreement.
26. APPLICABLE LAWS. This Agreement shall be governed by and
construed in accordance with the internal substantive laws, and not the choice
of law rules, of the State of California.
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27. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, none of which need contain the signature of more than one party
hereto, each of which shall be deemed to be an original, and all of which
together shall constitute a single agreement. To the maximum extent permitted by
law or by any applicable governmental authority, this Agreement may be signed
and transmitted by facsimile with the same validity as if it were an ink-signed
document.
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IN WITNESS WHEREOF, each of the parties has executed this Agreement as
of the day and year first above written.
NEXTERA ENTERPRISES, INC.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: XXXXXXX X. XXXXX
---------------------------------
Title: Director
---------------------------------
EXECUTIVE
/s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx
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