EXHIBIT 10.36
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EMPLOYMENT AGREEMENT (this "Agreement"), dated as of July
26, 2001 (the "Effective Date"), between EXCHANGE APPLICATIONS, INC.,
a Delaware corporation, (the "Company") and J. XXXXX XXXXXX (the
"Executive").
The Company desires to employ the Executive, and the Executive
desires to accept such employment.
Accordingly, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the receipt and
adequacy of which are mutually acknowledged, the Company and the Executive agree
as follows:
1. Definitions. For purposes of this Agreement, the following terms
shall have the following meanings:
(a) "Affiliate" of a Person means a Person that directly or
indirectly through one or more intermediaries controls, is controlled by or is
under common control with, the Person specified. Unless the context otherwise
requires, the terms "control" (including the terms "controlling", "controlled
by" and "under common control with") means the possession, direct or indirect,
of the power to direct or cause the direction of the management and policies of
a person, whether through the ownership of voting securities, by contract, or
otherwise.
(b) "Base Salary" means the salary provided for in Section 4 or any
increased salary granted to the Executive pursuant to Section 4.
(c) "Board" means the Board of Directors of the Company.
(d) "Cause" means:
(i) the Executive is convicted of a felony; or
(ii) the Executive engages in conduct that constitutes gross
neglect or willful gross misconduct in carrying out his duties under this
Agreement, resulting, in either case, in material economic harm to the Company;
provided, however, that this clause (ii) shall not apply to any conduct by the
Executive if the Executive believed in good faith that such conduct was in, or
not opposed to, the best interests of the Company unless such conduct is
inconsistent with a direct instruction from the Board.
(e) "Change of Control" means the occurrence of any of the following
events after the Effective Date:
(i) any Person becomes the beneficial owner, directly or
indirectly, of securities of the Company representing fifty percent (50%) or
more of the combined voting power of the Company's then outstanding securities,
excluding, however, any Person (or group of which such Person forms a part and
of which such Person owns at least 20%) that is currently an Affiliate of the
Company; or
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(ii) during any period of two (2) consecutive years (not
including any period prior to the Effective Date), individuals who at the
beginning of such period constitute the Board (and any new director, whose
election by the Company's stockholders was approved by a vote of at least a
majority of the directors then still in office who either were directors at the
beginning of the period or whose election or nomination for election was so
approved), cease for any reason to constitute a majority thereof;
(iii) the consummation of (A) a sale or disposition of all or
substantially all of the Company's assets; or (B) a merger, consolidation, or
reorganization of the Company with or involving any other corporation, other
than a merger, consolidation, or reorganization that would result in the holders
of voting securities of the Company outstanding immediately prior thereto (or
any group of which any such stockholders form a part and of which such
stockholders own at least 20%) owning more than fifty percent (50%) of the
combined voting power of the voting securities of the Company (or such surviving
entity) outstanding immediately after such merger, consolidation, or
reorganization; or
(iv) the approval of a plan of complete liquidation of the
Company by the stockholders of the Company.
(f) "Claim" means any claim, demand, request, investigation,
dispute, controversy, threat, discovery request or request for testimony or
information.
(g) "Code" means the Internal Revenue Code of 1986, as amended. Any
reference to a particular section of the Code shall include any provision that
modifies, replaces or supersedes such section.
(h) "Common Stock" means Common Stock, par value $.001 per share, of
the Company.
(i) "Constructive Termination" means a termination by the Executive
of his employment with the Company on written notice given to the Company
following the date on which he learns of the occurrence, without his prior
written consent, of any of the following events, if the Company shall have
failed to cure such event within twenty (20) days following receipt of written
notice from the Executive of a request to cure such event:
(i) a reduction in his then current Base Salary or in his
Minimum Bonus Amount;
(ii) a failure to timely grant, or timely honor, any equity
award under Section 6(a) of this Agreement or a material breach of the Company's
obligations under this Agreement or the Option Agreement;
(iii) the termination of, or a reduction in, any material
employee benefit or perquisite enjoyed by him (other than as part of an
across-the-board reduction applying to all executive officers of the Company
which has been approved by the Board);
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(iv) the failure to elect or reelect him to any of the positions
described in Section 3 or the removal of him from any such position;
(v) a material diminution in his duties or the assignment to him
of duties that are not materially consistent with those customarily assigned to
a member of the Board and Chief Executive Officer of a corporation of the size
and nature of the Company or which do, or would be reasonably expected to,
materially impair his ability to function as the a member of the Board and Chief
Executive Officer of the Company;
(vi) the relocation of the Company's principal office, or of his
own office as assigned to him by the Company, to a location more than 75 miles
from Boston, MA, Westport, CT or New York, New York;
(vii) the failure of the Company to obtain the assumption in
writing of its obligation to fully perform this Agreement by any successor to
all or substantially all of the assets of the Company within 15 days after
written request from the Executive following a merger, consolidation, sale or
similar transaction; or
(viii) the material breach by the Company of any of its
representations or warranties under the Option Agreement.
(j) "Disability" means the Executive's inability, due to physical or
mental incapacity, to substantially perform his duties and responsibilities
under this Agreement for a period of 180 consecutive days as determined by an
approved medical doctor. For this purpose an "approved medical doctor" means a
medical doctor mutually selected by the Executive and the Company. If the
Executive and the Company 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.
(k) "Market Price" means, as to any Marketable Security, the average
of the closing prices of such Marketable Security's sales on all United States
securities exchanges on which such security may at the time be listed, or, if
there have been no sales on any such exchange on any day, the average of the
highest bid and lowest asked prices on all such exchanges at the end of such
day, or, if on any day such security is not so listed, the average of the
representative bid and asked prices quoted on NASDAQ as of 4:00 P.M., New York
time, on such day, or, if on any day such security is not quoted on NASDAQ, the
average of the highest bid and lowest asked prices on such day in the domestic
over-the-counter market as reported by the National Quotation Bureau,
Incorporated, or any similar or successor organization, in each such case
averaged over a period of 5 business days ending immediately prior to the day as
of which "Market Price" is being determined.
(l) "Marketable Securities" means securities that are traded on an
established United States securities exchange or reported through the NASDAQ, or
otherwise traded over-the-counter or traded on PORTAL (in the case of securities
eligible for trading pursuant to Rule 144A under the Securities Act of 1933, as
amended).
(m) "Option" has the meaning given such term in the Option
Agreement.
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(n) "Option Agreement" means the Option Agreement, dated as of the
date hereof, by and between the Executive and the Company.
(o) "Option Price" has the meaning given such term in the Option
Agreement.
(p) "Option Shares" means the 1,943,552 shares of Common Stock
underlying the Option.
(q) "Option Value" means, at any given point in time, the sum of (i)
the amount of cash and the fair market value of any property received by the
Executive on any prior sales or other dispositions of Option Shares (to the
extent such amount exceeds the amount paid by the Executive to acquire such
Option Shares), (ii) the amount of cash and the fair market value of any
property received by the Executive on any prior sales or other dispositions of
the Option, and (iii) (A)if the Common Stock is a Marketable Security at such
time, the amount, if any, by which(x) the number of remaining Option Shares
(i.e., not previously sold or disposed of) multiplied by the Market Price
exceeds (y) the number of such remaining Option Shares multiplied by the Option
Price; provided, however, that foregoing shall constitute only a rebuttable
presumption, and that Executive shall, if applicable, be entitled to introduce
evidence to the effect that the value of any remaining Option Shares is, in
fact, less than the amount obtained above (for example, if the Common Stock is
thinly traded) or (B) if the Common Stock is not a Marketable Security at such
time, zero.
(r) "Parties" means the Company and the Executive.
(s) "Person" means any individual, corporation, partnership, limited
liability company, joint venture, trust, estate, board, committee, agency, body,
employee benefit plan or other person or entity.
(t) "Proceeding" means any threatened or actual action, suit or
proceeding, whether civil, criminal, administrative, investigative, appellate or
other.
(u) "Subsidiary" of any company means any corporation of which such
company beneficially owns, directly or indirectly, more than 50% of the Voting
Stock, measured either by number of shares and other voting securities or by
number of votes entitled to be cast.
(v) "Term of Employment" means the period specified in Section 2.
(w) "Termination Date" means the date on which the Executive's
employment hereunder terminates in accordance with this Agreement.
(x) "Voting Stock" means issued and outstanding capital stock or
other securities of any class or classes having general voting power, under
ordinary circumstances in the absence of contingencies, to elect, in the case of
a corporation, the directors of such corporation and, in the case of any other
entity, the corresponding governing Person(s).
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2. Term of Employment. The Company agrees to employ the Executive under
this Agreement, and the Executive accepts such employment, for the Term of
Employment. The Term of Employment shall commence on the Effective Date and
shall end on the second anniversary thereof. On the second anniversary of the
Effective Date, and on every successive one year anniversary thereafter, the
Term of Employment shall automatically be renewed for one year unless either
Party provides the other Party with 90 days' advance written notice of that
Party's desire that the Term of Employment should terminate. Notwithstanding the
foregoing, the Term of Employment may be earlier terminated, but only in strict
accordance with the provisions of Section 9.
3. Positions, Duties and Responsibilities. (a) During the Term of
Employment, the Executive shall be employed as the President and Chief Executive
Officer of the Company and be responsible for the general management of the
affairs of the Company, and shall perform such duties and exercise such powers
as are incident to the offices of Chief Executive Officer of the Company. The
Executive, in carrying out his executive duties under this Agreement, shall
report to the Board. It is the intention of the Parties that the Executive shall
be elected to and serve as a member of the Board, and the Company shall use its
best efforts to cause its principal stockholders to cause the election of the
Executive to the Board prior to the first anniversary of this Agreement, and
continuing through the Term of this Agreement.
(b) As a condition of the Executive's employment and of the
Company's obligations under this Agreement, the Executive will execute and
perform the Company's Nondisclosure and Development Agreement, Planned Stock
Sale Policy, Policy on Xxxxxxx Xxxxxxx and Confidentiality and Non-Competition
and Non-Solicitation Agreement (with certain changes to Section 1 thereof to be
negotiated in good faith between Executive and the Company), which are hereby
incorporated into this Agreement and made a part hereof.
(c) Subject to the Executive's obligations hereunder, the Executive
may (i) serve on the boards of directors of a reasonable number of other
corporations or the boards of a reasonable number of trade associations and/or
charitable organizations, (ii) engage in charitable activities and community
affairs, including political activities, and (iii) manage his personal
investments and affairs, provided that such activities do not, in the reasonable
judgment of the Board, after notice, materially interfere with the proper
performance of his duties and responsibilities as the Company's Chief Executive
Officer and a member of the Board.
4. Base Salary. Commencing as of the Effective Date, the Executive shall
be paid an annualized Base Salary of $250,000. Such Base Salary shall be payable
at intervals in accordance with the regular payroll practices of the Company
applicable to senior executives but no less frequently than monthly. The Base
Salary shall be reviewed no less frequently than annually during the Term of
Employment for increases. The Base Salary shall not be decreased at any time, or
for any purpose, during the Term of Employment (including, without limitation,
for the purpose of determining benefits due under Section 9).
5. Minimum Bonus /Annual Incentive Awards. The Executive shall receive
an annual guaranteed cash bonus award from the Company at the annualized rate of
$250,000 (the "Minimum Bonus"). The Minimum Bonus shall not be decreased at any
time during the Term of
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Employment. In addition, the Executive shall be eligible for an annual incentive
bonus award from the Company in respect of each calendar year ending during the
Term of Employment, which incentive bonus shall be determined by the Board in
its sole discretion. The Executive shall receive (i) his annual incentive award
payment in respect of any year no later than the 60th day following the end of
the preceding calendar year and (ii) his Minimum Bonus at the same time as he
receives payments of Base Salary in accordance with the regular payroll
practices of the Company.
6. Long-Term Incentive Awards. (a) Simultaneously herewith, the Company
has granted to the Executive options to acquire 1,943,552 shares of Common Stock
(the "Options"). Such grant of the Options and the terms and conditions of such
grant are set forth in the Option Agreement.
(b) The Executive shall be eligible for other or additional
long-term incentives in the discretion of the Board. Such other or additional
incentive awards shall be on a level, and on terms and conditions, that are
commensurate with his positions and responsibilities at the Company and
appropriate in light of corresponding incentive awards to other senior
executives of the Company.
7. Other Benefits. (a) Employee Benefits. During the Term of Employment,
the Executive shall participate in all employee benefit plans, programs and
arrangements made available generally to the Company's senior executives or to
its employees generally.
(b) Perquisites. During the Term of Employment, the Executive shall
participate in all fringe benefits and perquisites available to senior
executives of the Company at levels, and on terms and conditions, that are
commensurate with his positions and responsibilities at the Company. The
Executive shall also receive such additional fringe benefits and perquisites as
the Company may, in its discretion, from time-to-time provide.
(c) Vacation. During the Term of Employment, the Executive shall be
entitled to vacation in accordance with the reasonable practices of the Company,
but in no event less than 3 weeks per annum.
(d) Housing. The Company shall promptly reimburse Executive for all
costs associated with his leasing an apartment in the greater Boston, MA area
(the "Apartment"). These costs shall include monthly rental payments through the
term of the applicable lease (the "Lease"), any security deposits required by
the Lease, any broker's fees incurred in connection with entering the Lease,
travel and meal expenses incurred by Executive and his family in connection with
Executive's search for the Apartment and the costs of moving any of Executive's
personal effects from his residence in New York to the Apartment. The Company
shall guarantee payment of the Lease.
8. Reimbursement of Business and Other Expenses. (a) The Executive is
authorized to incur reasonable expenses in carrying out his duties and
responsibilities under this Agreement and the Company shall promptly reimburse
him for all such expenses, subject to documentation in accordance with
reasonable policies of the Company.
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(b) The Company shall promptly reimburse the Executive for any and
all reasonable expenses (including, without limitation, attorneys' fees and
other charges of counsel) incurred by him in connection with the negotiation and
documentation of this Agreement and the Executive's other employment
arrangements with the Company (including, without limitation, those arrangements
referred to in Section 6 hereof).
(c) The Company shall promptly reimburse Executive for any and all
reasonable expenses, personal or otherwise, incurred by Executive in travelling
between New York, NY and the greater Boston, MA area on a weekly basis.
9. Termination of Employment. (a) Termination Due to Death. In the event
that the Executive's employment hereunder is terminated due to his death, his
estate or his beneficiaries (as the case may be) shall be entitled to the
following:
(i) Base Salary and Minimum Bonus through the date of his death
and for an additional 90 days thereafter;
(ii) immediate vesting of all Company stock options that would
have otherwise vested within the longer of (A) the period of six months from the
date of his death or (B) the period ending on the day after the first
anniversary of the date hereof, with such options remaining exercisable for a
period of 180 days after the date of his death;
(iii) a lump sum payment in respect of all accrued but unused
vacation days at his Base Salary rate in effect on the Termination Date, payment
of any other amounts earned, accrued or owing to the Executive but not yet paid
and receipt of other benefits in accordance with applicable plans and programs
of the Company (the "Standard Benefit"); and
(iv) continued participation for one year for each of the
Executive's dependents in all medical, dental, hospitalization and other
employee welfare benefit plans, programs and arrangements in which such
dependent was participating as of the date of the Executive's death, on terms
and conditions no less favorable than those applying on such date and with COBRA
benefits commencing thereafter.
(b) Termination Due to Disability. In the event that the Executive's
employment hereunder is terminated due to Disability, he shall be entitled to
the following:
(i) continuation of Base Salary and Minimum Bonus until
commencement of long-term disability payments;
(ii) immediate vesting of all Company stock options that would
have otherwise vested within the longer of (A) the period of six months from the
date of such termination, and (B) the period ending on the day after the first
anniversary of the date hereof, with such options remaining exercisable for a
period of 180 days thereafter;
(iii) the Standard Benefit; and
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(iv) continued participation for one year for the Executive and
each of his dependents in all Company medical, dental, hospitalization and life
insurance coverages and in all other Company employee welfare benefit plans,
programs and arrangements.
No termination of the Executive's employment for Disability shall be effective
unless the Party terminating his employment first gives 15 days written notice
of such termination to the other Party.
(c) Termination by the Company for Cause.
(i) No termination of the Executive's employment hereunder by
the Company for Cause shall be effective unless the provisions of this Section
9(c)(i) shall have been fully complied with. Prior to any termination by the
Company for Cause, the Executive shall be given written notice by the Board of
the intention to terminate him, such notice (A) to state in detail the
particular circumstances that constitute the grounds on which the proposed
termination for Cause is based and (B) to be given no later than 180 days after
the Board first learns of such circumstances. The Executive shall have 15 days
after receiving such notice in which to cure such grounds, to the extent such
cure is possible. If he fails to cure such grounds, the Executive shall then be
entitled to a hearing before the Board. Such hearing shall be held within 20
days of his receiving such notice, provided that he requests such hearing within
15 days of receiving such notice. If, within five days following such hearing,
the Board gives written notice to the Executive confirming that, in the judgment
of at least a majority of the members of the Board, Cause for terminating his
employment on the basis set forth in the original notice exists, his employment
with the Company shall thereupon be terminated for Cause, subject to de novo
review, at the Executive's election, through arbitration in accordance with
Section 14. In the event any such arbitration shall determine that Cause did not
exist for the termination of the Executive's employment, his employment shall be
deemed to have been terminated without Cause for purposes of determining his
rights under this Agreement and any other applicable agreements.
(ii) In the event that the Executive's employment hereunder is
terminated by the Company for Cause in accordance with Section 9(c)(i), he shall
be entitled to the following:
(A) Payment of Base Salary and Minimum Bonus through the
Termination Date; and
(B) the Standard Benefit.
(d) Termination Without Cause; Constructive Termination by the
Executive. In the event that the Executive's employment hereunder is terminated
by the Company, other than due to Disability in accordance with Section 9(b) or
for Cause in accordance with Section 9(c)(i), or in the event of the Executive's
termination of his employment as a result of a Constructive Termination, the
Executive shall be entitled to:
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(i) payment of Base Salary and Minimum Bonus through the
Termination Date;
(ii) a prompt lump-sum severance payment equal to the excess, if
any, of (A) four times the Executive's annual Base Salary on the Termination
Date over (B) the Option Value on the Termination Date;
(iii) immediate vesting of all Company stock options that would
have otherwise vested within the longer of (A) the period of six months from the
date of such termination, and (B) the period ending on the day after the first
anniversary of the date hereof, with such options remaining exercisable for the
remainder of their stated terms;
(iv) continued participation for the Executive and each of his
dependents in all Company medical, dental, hospitalization and life insurance
coverages and all other Company welfare benefit plans, programs and arrangements
until the earlier of (x) two years from the Termination Date or (y) the date the
Executive receives equivalent coverage and benefits from a subsequent employer;
and
(v) the Standard Benefit.
(e) Voluntary Termination. In the event that the Executive
terminates his employment with the Company on his own initiative, other than by
death, for Disability or by a Constructive Termination, he shall have the same
entitlements hereunder as provided in Section 9(c)(ii) in the case of a
termination by the Company for Cause. A voluntary termination under this Section
9(e) shall be effective upon written notice to the Company and shall not be
deemed a breach of this Agreement.
(f) Benefit Plans. In the event that the Executive, or any of his
dependents, is precluded from continuing full participation in any employee
benefit plan, program or arrangement as provided in Sections 9(a)(iv), 9(b)(iv)
or 9(d)(iv), the Executive shall be provided with the after-tax economic
equivalent of any benefit or coverage foregone. For this purpose, the economic
equivalent of any benefit or coverage foregone shall be deemed to be the total
cost to the Executive or any of his dependents of obtaining such benefit or
coverage by himself on an individual basis. Payment of such after-tax economic
equivalent shall be made quarterly in advance, without discount.
(g) No Mitigation or Offset. In the event of any termination of the
Executive's employment with the Company, the Executive shall be under no
obligation to seek other employment or otherwise mitigate the obligations of the
Company under this Agreement, and there shall be no offset against amounts due
the Executive under this Agreement on account of (A) any claim that the Company
or any of its shareholders or Affiliates may have against him or (B) any
remuneration or other benefit earned or received by the Executive after such
termination except as specifically provided in Section 9(d)(iv). Any amounts due
under this Section 9 or under Section 10(b) are considered to be reasonable by
the Company and are not in the nature of a penalty.
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10. Change of Control; Excise Tax Gross-Up. (a) In the event that a
Change of Control occurs during the Term of Employment, then (i) all amounts,
entitlements and benefits, including, but not limited to, all Company stock
options, shall thereupon become fully vested and nonforfeitable; and (ii) the
Executive shall have the continued right to exercise each outstanding stock
option, including, without limitation, any portion of the Executive's stock
options vesting prior to or upon such Change of Control, to the extent permitted
by the applicable plan or, if more favorable to the Executive, the applicable
grant document. In the event that holders of Common Stock receive cash,
securities or other property in respect of their Common Stock in connection with
a Change of Control transaction, the Company shall enable the Executive (if he
so elects) to exercise any stock option at a time and in a fashion that will
entitle him to receive in exchange for any shares thus acquired, the same
consideration as is received in such Change of Control transaction by other
holders of Common Stock. Notwithstanding the foregoing, nothing in this Section
10(a) shall in any way limit the Executive's rights under Section 9 with respect
to any stock option upon a termination of his employment.
(b) In the event that any payment or benefit made or provided to or
for the benefit of the Executive in connection with this Agreement and/or his
employment with the Company or the termination thereof (a "Payment") is
determined to be subject to any excise tax ("Excise Tax") imposed by Section
4999 of the Code (or any successor to such Section), the Company shall pay to
the Executive, prior to the time any Excise Tax is payable with respect to such
Payment (through withholding or otherwise), an additional amount (a "Gross-Up
Payment") which, after the imposition of all income, employment, excise and
other taxes, penalties and interest thereon, is equal to the sum of (i) the
Excise Tax on such Payment plus (ii) any penalty and interest assessments
associated with such Excise Tax. The determination of whether any Payment is
subject to an Excise Tax and, if so, the amount and time of any Gross-Up Payment
pursuant to this Section 10(b) shall be made by the Company's auditors at the
Company's expense. This Section 10(b) shall apply irrespective of whether a
Change of Control has occurred.
11. Indemnification. (a) The Company agrees that (i) if the Executive is
made a party, or is threatened to be made a party, to any Proceeding by reason
of the fact that he is or was a director, officer, employee, agent, manager,
consultant or representative of the Company or is or was serving at the request
of the Company or any of its Affiliates as a director, officer, member,
employee, agent, manager, consultant or representative of another Person or (ii)
if any Claim is made, or threatened to be made, that arises out of or relates to
the Executive's service in any of the foregoing capacities, then the Executive
shall promptly be indemnified and held harmless by the Company to the fullest
extent legally permitted or authorized by the Holding's certificate of
incorporation, bylaws or Board resolutions or, if greater, by the laws of the
State of Delaware, against any and all costs, expenses, liabilities and losses
(including, without limitation, attorney's fees, judgments, interest, expenses
of investigation, penalties, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) incurred or suffered by the Executive in
connection therewith, and such indemnification shall continue as to the
Executive even if he has ceased to be a director, member, employee, agent,
manager, consultant or representative of the Company or other Person and shall
inure to the benefit of the Executive's heirs, executors and administrators. The
Company shall advance to the Executive all costs and
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expenses incurred by him in connection with any such Proceeding or Claim within
15 days after receiving written notice requesting such an advance. Such notice
shall include, to the extent required by applicable law, an undertaking by the
Executive to repay the amount advanced if he is ultimately determined not to be
entitled to indemnification against such costs and expenses.
(b) Neither the failure of the Company (including the Board,
independent legal counsel or stockholders) to have made a determination in
connection with any request for indemnification or advancement under Section
11(a) that the Executive has satisfied any applicable standard of conduct nor a
determination by the Company (including the Board, independent legal counsel or
stockholders) that the Executive has not met any applicable standard of conduct,
shall create a presumption that the Executive has not met an applicable standard
of conduct.
(c) During the Term of Employment and for a period of six years
thereafter, the Company shall keep in place a directors and officers' liability
insurance policy (or policies) providing comprehensive coverage to the Executive
equal to the coverage that the Company provides for any other present or former
senior executive or director of the Company.
12. Assignability; Binding Nature. (a) This Agreement shall be binding
upon and inure to the benefit of the Parties and their respective successors,
heirs (in the case of the Executive) and assigns.
(b) No rights or obligations of the Company under this Agreement may
be assigned or transferred by the Company except that such rights or obligations
may be assigned or transferred pursuant to a merger or consolidation in which
the Company is not the continuing entity, or a sale or liquidation of all or
substantially all of the assets and business of the Company; provided, that the
assignee or transferee is the successor to all or substantially all of the
assets and business of the Company and such assignee or transferee assumes the
liabilities, obligations and duties of the Company, as contained in this
Agreement, either contractually or as a matter of law. In the event of any sale
of assets and business or liquidation as described in the preceding sentence,
the Company shall use its best efforts to cause such assignee or transferee to
expressly assume the liabilities, obligations and duties of the Company
hereunder and shall cause such assignee or transferee to deliver a legal, valid
and enforceable written instrument in form and substance satisfactory to the
Executive and his counsel to such effect.
(c) No rights or obligations of the Executive under this Agreement
may be assigned or transferred by the Executive other than his rights to
compensation and benefits, which may be transferred only by will or operation of
law, except as provided in Section 16(e).
13. Representations. The Company represents and warrants that: (a) it is
fully authorized by action of the Board of the Company (and of any other Person
or body whose action is required) to enter into this Agreement and to perform
its obligations hereunder and upon the execution and delivery of this Agreement
by the Parties, this Agreement shall be the valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms.
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(b) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, and having full
corporate power and authority to conduct its businesses as such businesses are
presently conducted.
(c) The execution and delivery by the Company of this Agreement and
the consummation of the transactions contemplated hereby will not result in the
violation of any law, statute, rule, regulation, order, writ, injunction,
judgment or decree of any court or governmental authority to or by which the
Company is bound, or of any provision of the Certificate of Incorporation (as
amended) or By-Laws (as amended) of the Company, and will not conflict with, or
result in a breach or violation of, any of the terms or provisions of, or
constitute (with due notice or lapse of time or both) a default under, any
agreement, instrument or document to which the Company is a party or by which it
is bound or to which any of its properties or assets is subject, nor result in
the creation or imposition of any lien upon any of the properties or assets of
the Company.
14. Resolution of Disputes. Any Claim arising out of or relating to this
Agreement, the Executive's employment with the Company or the termination of
such employment shall be resolved by binding confidential arbitration, to be
held in Boston, MA, in accordance with the Commercial Arbitration Rules of the
American Arbitration Association. Judgment upon the award rendered by the
arbitrator(s) may be entered by either party in any court having jurisdiction
thereof. The Company shall promptly pay all reasonable costs and expenses,
including without limitation attorneys' fees, incurred by the Executive or his
beneficiaries in resolving any such Claim, other than any Claim brought by the
Executive or his beneficiaries that the arbitrator(s) determine to have been
brought in bad faith. Pending the resolution of any Claim, the Executive (and
his beneficiaries) shall continue to receive all payments and benefits due under
this Agreement.
15. Notices. Any notice, consent, demand, request, or other communication
given to a Person in connection with this Agreement shall be in writing and
shall be deemed to have been given to such Person (a) when delivered personally
to such Person or (b), provided that a written acknowledgment of receipt is
obtained, two days after being sent by prepaid certified or registered mail, or
by a nationally recognized overnight courier, to the address specified below for
such Person (or to such other address as such Person shall have specified by 10
days advance notice given in accordance with this Section 15) or (c) in the case
of the Company only, on the first business day after it is sent by facsimile to
the facsimile number set forth for the Company (or to such other facsimile
number as the Company shall have specified by 10 days advance notice given in
accordance with this Section 15), with a confirmatory copy sent by certified or
registered mail or by overnight courier to the Company in accordance with this
Section 15.
If to the Company to:
Exchange Applications, Inc.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: General Counsel
Telephone: (000)-000-0000
Facsimile: (000) 000-0000
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If to the Executive to:
J. Xxxxx Xxxxxx
0 Xxx Xxx Xxxx
Xxxxx Xxxxxxxxxx, XX 00000
with a copy to:
The Executive at the Company's address
and
Xxxx X. Xxxxxxxxxx, Esq.
Dickstein, Shapiro, Xxxxx & Xxxxxxxx LLP
1177 Avenue of the Americas
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to a beneficiary of the Executive to:
The address most recently specified by the Executive or beneficiary through
notice given in accordance with this Section 15.
16. Miscellaneous. (a) Entire Agreement. This Agreement contains the
entire understanding and agreement between the Parties concerning the subject
matter hereof and, as of the Effective Date, supersedes all prior agreements,
understandings, discussions, negotiations and undertakings, whether written or
oral, between the Parties with respect thereto.
(b) Severability. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason, in
whole or in part, the remaining provisions of this Agreement shall be unaffected
thereby and shall remain in full force and effect to the fullest extent
permitted by law so as to achieve the purposes of this Agreement.
(c) Amendment or Waiver. No provision in this Agreement may be
amended unless such amendment is set forth in a writing signed by the Parties.
No waiver by either Party of any breach of any condition or provision contained
in this Agreement shall be deemed a waiver of any similar or dissimilar
condition or provision at the same or any prior or subsequent time. To be
effective, any waiver must be set forth in a writing signed by the waiving
Party.
(d) Headings. The headings of the Sections contained in this
Agreement are for convenience only and shall not be deemed to control or affect
the meaning or construction of any provision of this Agreement.
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(e) Beneficiaries/References. The Executive shall be entitled, to
the extent permitted under any applicable law, to select and change a
beneficiary or beneficiaries to receive any compensation or benefit hereunder
following the Executive's death by giving the Company written notice thereof. In
the event of the Executive's death or a judicial determination of his
incompetence, reference in this Agreement to the Executive shall be deemed,
where appropriate, to refer to his beneficiary, estate or other legal
representative.
(f) Survivorship. Except as otherwise set forth in this Agreement,
the respective rights and obligations of the Parties hereunder shall survive any
termination of the Executive's employment hereunder.
(g) Governing Law/Jurisdiction. This Agreement shall be governed,
construed, performed and enforced in accordance with the laws of the
Commonwealth of Massachusetts, without reference to principles of conflicts of
laws.
(h) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which, when
taken together, shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of the date first set forth above.
EXCHANGE APPLICATIONS, INC.
By:
----------------------------
Name:
Title:
--------------------------------
J. Xxxxx Xxxxxx
