EXHIBIT 10.2
SEVERANCE AGREEMENT
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THIS SEVERANCE AGREEMENT ("Agreement") by and between uBid, Inc., a
Delaware corporation (the "Company") headquartered at 0000 Xxxx Xxxx Xxxx
Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx, CMGI, Inc., ("CMGI") a Delaware
corporation headquartered at 000 Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx and
Xxxxxxx Xxxxx (the "Executive"), residing at 000 Xxxxxx Xxxx Xxxxx, Xxxx Xxxxxx,
Xxxxxxxx, is made as of February 21, 2001.
WHEREAS, the Board of Directors of the Company (the "Board") has determined
that the Executive will play a critical role in the operations of the Company;
and
WHEREAS, the Board has determined that appropriate steps should be taken to
reinforce and encourage the continued employment and dedication of the
Executive;
NOW, THEREFORE, as an inducement for and in consideration of the Executive
remaining in its employ, the Company agrees that the Executive shall receive the
benefits set forth in this Agreement in the circumstances described below.
1. Term of Agreement. The term of this Agreement shall be February 21, 2001 to
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February 21, 2003 ("Retention Period"). Thereafter, this Agreement may be
renewed by written agreement of the parties.
2. Not A Guarantee of Employment. The Executive acknowledges that this
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Agreement does not constitute a guarantee of employment or impose on the Company
any obligation to retain the Executive as an employee and that this Agreement
does not prevent the Executive from terminating his employment. The Executive
understands and acknowledges that he is an employee at will and that either he
or the Company may terminate the employment relationship between them at any
time and for any lawful reason.
3. Severance Pay and Option Acceleration
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(a) In the Absence of a Change in Control
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In the event that no Change in Control (as defined below) has occurred and
the employment of the Executive is terminated by the Company for a reason other
than for Cause (as defined below), then the Executive shall be eligible for
severance pay in accordance with such policies as the Company's Board of
Directors may establish from time to time, provided he executes a copy of the
Company's standard severance agreement and release following his last day of
employment with the Company. Such severance pay (which shall be paid only if
the employment of the Executive is terminated by the Company for a reason other
than for Cause, as defined below) shall amount to no less than the equivalent of
six months' base wages, less applicable taxes and withholding,
and shall be paid in installments, on a semi-monthly basis, in accordance with
the Company's regular payroll practices.
(b) Following a Change in Control.
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In the event a Change in Control (as defined below) occurs and, thereafter,
the employment of the Executive is terminated by the Company for a reason other
than for Cause (as defined below), then the Executive shall be eligible for
severance pay in accordance with such policies as the Company's Board of
Directors may establish from time to time, provided he executes a copy of the
Company's standard severance agreement and release following his last day of
employment with the Company. Such severance pay (which shall be paid only if the
employment of the Executive is terminated by the Company for a reason other than
for Cause, as defined below) shall amount to no less than the equivalent of six
months' base wages, less applicable taxes and withholding, and shall be paid in
installments, on a semi-monthly basis, in accordance with the Company's regular
payroll practices.
Additionally, with respect to each outstanding option to purchase shares of
common stock of the Company then held by the Executive, on the Executive's last
day of employment, twenty-five (25) percent of any unvested portion of each
stock option shall be accelerated such that the Executive shall be entitled to
exercise the stock option (in accordance with the exercise terms and conditions
set forth in the option agreement and/or plan pursuant to which such options
were granted) to the same extent as he would have had the accelerated portion of
the option vested in accordance with the schedule established in the applicable
stock option grant.
4. Guarantee of Payment. In the event the Company fails to pay the sums
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described in section 3(a), CMGI shall, on behalf of the Company, within 10 days
of receipt of written notice from the Executive, pay such overdue sums to the
Executive, provided, however, that in no event shall CMGI be obligated to adopt
a schedule of payments which is less beneficial to it than that which the
Company and the Executive have established in section 3(a), and provided further
that this guaranty (i) shall be capped at $1,000,000, (ii) shall terminate
automatically upon the consummation of the initial public offering after the
date hereof of securities of the Company pursuant to an effective registration
statement under the Securities Act of 1933, as amended, and (iii) shall be
replaceable and terminable, at the sole option of CMGI, with an irrevocable
letter of credit issued by an acceptable lending institution for the account of
the Executive.
5. Sole Remedy. The payment to the Executive of the amounts payable under
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Section 3 (and applicable acceleration of options) along with payment of any
accrued but unused vacation pay shall constitute the sole remedy of the
Executive in the event of a termination of the Executive's employment by the
Company.
6. Definitions. For purposes of this Agreement, the following terms shall
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have the following meanings:
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(a) "Cause" shall mean a good faith finding by the Company of: (i) gross
negligence or willful misconduct by the Executive in connection with the
Executive's employment duties, (ii) failure by the Executive to perform his
duties or responsibilities required pursuant to the Executive's employment after
written notice and a 30-day opportunity to cure, (iii) mis-appropriation by the
Executive for the Executive's personal use of the assets or business
opportunities of the Company, or its affiliates, (iv) embezzlement or other
financial fraud committed by the Executive, (v) the Executive knowingly allowing
any third party to commit any of the acts described in any of the preceding
clauses (iii) or (iv), or (vi) the Executive's indictment for, conviction of, or
entry of a plea of no contest with respect to, any felony.
(b) "Change in Control" shall mean the consummation of any of the following
events during the Retention Period: (i) a sale, lease or disposition of all or
substantially all of the assets of the Company, or (ii) a merger or
consolidation (in a single transaction or a series of related transactions) of
the Company with or into any other corporation or corporations or other entity,
or any other corporate reorganization, where the stockholders of the Company
immediately prior to such event do not retain (in substantially the same
percentages) beneficial ownership, directly or indirectly, of more than fifty
percent (50%) of the voting power of and interest in the successor entity or the
entity that controls the successor entity; provided, however, that a "Change in
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Control" shall not include a sale, lease, transfer or other disposition of all
or substantially all of the capital stock, assets, properties or business of the
Company (by way of merger, consolidation, reorganization, recapitalization, sale
of assets, stock purchase, contribution or other similar transaction) that
involves the Company, on the one hand, and CMGI or any CMGI Subsidiary (as
defined herein), on the other hand.
(c) "CMGI Subsidiary" shall mean any corporation or other entity that is
controlled, directly or indirectly, by CMGI.
7. Miscellaneous.
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(a) Notices. Any notices delivered under this Agreement shall be deemed duly
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delivered four business days after it is sent by registered or certified
mail, return receipt requested, postage prepaid, or one business day after
it is sent for next-business day delivery via a reputable nationwide
overnight courier service, in each case to the address of the recipient set
forth in the introductory paragraph hereto. Either party may change the
address to which notices are to be delivered by giving notice of such
change to the other party. All notices to the Company shall also be
addressed to the Company's General Counsel with a copy to the General
Counsel of CMGI.
(b) Pronouns. Whenever the context may require, any pronouns used in this
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Agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular forms of nouns and pronouns shall include the
plural, and vice versa.
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(c) Entire Agreement. This Agreement constitutes the entire agreement between
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the parties and supersedes all prior agreements and understandings, whether
written or oral, relating to the subject matter of this Agreement.
(d) Amendment. This Agreement may be amended or modified only by a written
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instrument executed by both the Company and the Executive.
(e) Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the Commonwealth of Massachusetts. The Company
and the Executive each hereby irrevocably waive any right to a trial by
jury in any action, suit or other legal proceeding arising under or
relating to any provision of this Agreement.
(f) Successors and Assigns. This Agreement shall be binding upon and inure to
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the benefit of both parties and their respective successors and assigns,
including any corporation with which or into which the Company may be
merged or which may succeed to its assets or business, provided, however,
that the obligations of the Executive are personal and shall not be
assigned by him.
(g) Waivers. No delay or omission by the Company in exercising any right under
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this Agreement shall operate as a waiver of that or any other right. A
waiver or consent given by the Company on any one occasion shall be
effective only in that instance and shall not be construed as a bar or
waiver of any right on any other occasion.
(h) Captions. The captions of the sections of this Agreement are for
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convenience of reference only and in no way define, limit or affect the
scope or substance of any section of this Agreement.
(i) Severability. In case any provision of this Agreement shall be invalid,
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illegal or otherwise unenforceable, the validity, legality and
enforceability of the remaining provisions shall in no way be affected or
impaired thereby.
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THE EXECUTIVE ACKNOWLEDGES THAT HE HAS CAREFULLY READ THIS AGREEMENT AND
UNDERSTANDS AND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year set forth above.
uBid, Inc.
By: /s/ Xxxxxx X. Xxxxxxxx III
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Title: Treasurer
CMGI, Inc.
By: /s/ Xxxxxx X. Xxxxxxxx III
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Title: Executive Vice President, CFO and
Treasurer
EXECUTIVE
/s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
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