EXHIBIT 10.16
EMPLOYMENT AGREEMENT
This Employment Agreement ("Employment Agreement") dated this 5th day of
February, 2001 but effective as of February 15, 2001 (the "Effective Date") is
made by and between X.X. XXXXXXX & COMPANY, a Delaware corporation ("X.X.
Xxxxxxx"), and XXXXXX X. XXXXX ("Xxxxx").
RECITALS
A. J.D. Xxxxxxx is engaged in the business of developing, marketing and
supporting enterprise software and supply chain computing solutions.
X. Xxxxx is to be employed by X.X. Xxxxxxx in the position of Senior Vice
President and Chief Marketing Officer and X.X. Xxxxxxx and Xxxxx
contemplate that X.X. Xxxxxxx will employ Xxxxx for a period of at least
three (3) years from the Effective Date of this Employment Agreement.
It is agreed between X.X. Xxxxxxx and Xxxxx as follows:
1. EMPLOYMENT. X.X. Xxxxxxx hereby agrees to employ Xxxxx to perform the
duties and responsibilities set forth in the job description attached as
Attachment A and incorporated herein to this Employment Agreement together
with such other duties and responsibilities as shall be assigned to him by
X.X. Xxxxxxx senior management which shall not be incompatible with Xxxxx'x
job description. Xxxxx accepts such employment with X.X. Xxxxxxx upon the
terms and conditions of this Employment Agreement and agrees to perform the
duties and responsibilities described in this Section in accordance with
all policies, procedures, rules and regulations adopted by X.X. Xxxxxxx
Board of Directors or senior management. During the term of his employment,
Xxxxx agrees to devote his full time and attention, skills and efforts to
the performance of his duties and responsibilities on behalf of X.X.
Xxxxxxx and to maintain and promote the business of X.X. Xxxxxxx.
2. TERM. Subject to the terms of Xxxxxxx 0, Xxxxxxxxxxx, Xxxxx shall be
employed by X.X. Xxxxxxx for a period of not less than three (3) years
commencing on the Effective Date (the "Initial Employment Term").
3. COMPENSATION.
3.1 ANNUAL BASE SALARY AND BONUS. Xxxxx'x compensation from February 15,
2001 until February 15, 2002 shall be set at an annual base salary of
$300,000 with an annual bonus incentive of up to fifty percent (50%)
of such base salary based upon the achievement of those certain
objectives as determined and approved by the Compensation Committee
of the Board of Directors of X.X. Xxxxxxx in their sole discretion.
Compensation for subsequent periods shall be established by a written
addendum to this
Xxxxx Employment Agreement -- 1-01
Page 1 of 9
Employment Agreement as approved by the Compensation Committee of the
X.X. Xxxxxxx Board of Directors but in no event will be less than the
annual base salary of $300,000 and annual bonus incentive of up to
fifty percent (50%) of the new base salary based upon the achievement
of those certain objectives as determined and approved by the
Compensation Committee of the Board of Directors of X.X. Xxxxxxx in
their sole discretion.
3.2 STOCK OPTION GRANT. Xxxxx will be granted stock options to purchase
the common stock of X.X. Xxxxxxx pursuant to the terms of X.X. Xxxxxxx
1997 Equity Incentive Plan, or its successor option plan, if any, in
accordance with the schedule below (the "Stock Option Grant"):
o 60,000 stock options granted at fair market value, i.e., the closing
bid price of X.X. Xxxxxxx common stock on the NASD stock market on the
Effective Date ("Fair Market Value")
o 70,000 stock options granted when the stock price is 100% above Fair
Market Value
o 70,000 stock options granted when the stock price is 200% above Fair
Market Value
Each tranche of the Stock Option Grant shall vest and become
exercisable 25% of such particular tranche of the grant on the day
preceding each anniversary; all unvested options will terminate
effective on the date of termination. Should Xxxxx resign from
employment with X.X. Xxxxxxx or be terminated by X.X. Xxxxxxx for
Cause or for Performance at any time during the Initial Employment
Term, the Stock Option Grant will be cancelled effective upon the date
of resignation or termination for Cause and Xxxxx will have the right
to exercise any portion of the Stock Option Grant which is vested as
of the date of resignation or termination. Xxxxx shall have a period
of three (3) months commencing upon termination of employment to
exercise his vested stock option under this Section.
4. EMPLOYEE BENEFITS. Xxxxx will be eligible to participate in all employee
benefits provided by X.X. Xxxxxxx to employees, based upon his position and
tenure, including the following:
4.1. HEALTH AND LIFE INSURANCE. X.X. Xxxxxxx agrees to provide to Xxxxx
(and his spouse and dependents) coverage under X.X. Xxxxxxx group
health and life insurance plan, the coverage, terms and benefits of
which shall be determined, from time to time, in the sole discretion
of X.X. Xxxxxxx Board of Directors.
4.2. PAID TIME OFF. Xxxxx shall be entitled to the maximum paid time off
provided for in X.X. Xxxxxxx paid time off policy in effect from time
to time.
Xxxxx Employment Agreement -- 1-01
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4.3 QUALIFIED/NON-QUALIFIED PLAN(S). Xxxxx shall be entitled to
participate in any qualified or non-qualified plan(s) adopted by X.X.
Xxxxxxx Board of Directors provided Xxxxx fulfills all eligibility
requirements under the terms and conditions of such plan. The X.X.
Xxxxxxx Board of Directors reserves the sole right and discretion to
adopt or terminate a plan and to establish all eligibility
requirements and other terms and conditions of such plan.
4.4 RELOCATION EXPENSE. X.X. Xxxxxxx will cover all reasonable and
customary expenses associated with Xxxxx'x relocation including
shipment/storage of household goods, 90 days temporary living, two
house hunting trips, closing costs associated with the sale of Xxxxx'x
primary residence and closing costs associated with the purchase of
Xxxxx'x new residence at the new location, shipment of automobiles,
tax assistance and gross-up for which expenses may apply,
miscellaneous expenses of $10,000 and costs associated with the final
move. In addition, should Xxxxx be unsuccessful in selling his current
residence X.X. Xxxxxxx will purchase his residence in accordance with
its standard home purchase policy.
SEVERANCE PAY. If Xxxxx is terminated by X.X. Xxxxxxx for Performance or
disability each as defined below, Xxxxx shall be entitled to receive severance
pay in accordance with the standard X.X. Xxxxxxx xxxxxxxxx pay policy for an
employee of Xxxxx'x position and time of service in the amount of Xxxxx'x then
current twelve months base salary, conditioned upon Xxxxx and X.X. Xxxxxxx
entering into a Separation Agreement substantially in the form attached hereto.
This severance payment would be made in a one-time, lump sum payment subject to
appropriate tax withholding. "Disability" as used herein shall mean that Xxxxx
has been unable to perform his or her duties as an employee as the result of
incapacity due to physical or mental illness, and such inability, at least 26
weeks after its commencement, is determined to be total and permanent by a
physician selected by X.X. Xxxxxxx or its insurers and acceptable to the Xxxxx
or Xxxxx'x legal representative (such agreement as to acceptability not to be
unreasonably withheld). Termination resulting from disability may only be
effected after at least 30 days' written notice by X.X. Xxxxxxx of its intention
to terminate Xxxxx'x employment. In the event that Xxxxx resumes the performance
of substantially all of his or her duties hereunder before the termination of
his employment becomes effective, the notice of intent to terminate shall
automatically be deemed to have been revoked.
5. Notwithstanding the foregoing, however, no severance allowance shall be
paid if termination is for Cause or if Xxxxx voluntarily terminates
employment within the Initial Employment Term.
5.1. COBRA MEDICAL INSURANCE. If Xxxxx'x employment is terminated without
Cause, in addition to the severance payment in accordance with Section
5, Xxxxx and his dependents will be eligible for medical insurance
(for himself and his spouse and dependant(s)) under COBRA commencing
on the date of his termination for a period of six (6) months in
accordance
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with the standard X.X. Xxxxxxx policy at X.X. Xxxxxxx sole expense.
Xxxxx and his dependents will be eligible to continue this coverage at
his cost beyond such date if he should so elect as provided by
applicable law.
5.2 MANAGEMENT CHANGE IN CONTROL PLAN. The X.X. Xxxxxxx & Company
Management Change in Control Plan Xxxxx accepted on __________________
(the "Plan") will remain in full force and effect for the term of this
Employment Agreement and will continue thereafter only so long as
Xxxxx remains an employee of X.X. Xxxxxxx. Pursuant to such Plan,
Xxxxx shall be eligible to receive a multiple of his annual
compensation in accordance with the terms of such Plan in the event
that X.X. Xxxxxxx is acquired and as a result of such acquisition
Xxxxx is terminated. Therefore, the X.X. Xxxxxxx Board of Directors
agrees that it waives all rights under the Plan to remove Xxxxx as a
participant in the Plan, terminate the Plan with respect to Xxxxx,
amend or otherwise modify the Plan in any manner that would be
detrimental to Xxxxx or serve to reduce the Severance Benefits payable
to Xxxxx under the Plan.
5.3 INDEMNIFICATION AGREEMENT. The parties executed the X.X. Xxxxxxx &
Company Indemnification Agreement on ________________ (the
"Indemnification Agreement").
5.4 CONFIDENTIALITY AND NON-SOLICITATION. Xxxxx acknowledges that he has
signed the X.X. Xxxxxxx Employee Nondisclosure Agreement effective
_______________________ and confirms that he will continue to abide by
the obligations contained therein.
6. TERMINATION. X.X. Xxxxxxx shall have the right to terminate this Employment
Agreement prior to its expiration only for "Cause" or "Performance" as set
forth below:
6.1. TERMINATION FOR CAUSE. For the purposes of this Employment Agreement,
"Cause" means the following:
(a) any act of personal dishonesty taken by Xxxxx in connection with
his responsibilities as an Employee and intended to result in
substantial personal enrichment of Xxxxx;
(b) Xxxxx'x conviction of a felony that is injurious to X.X. Xxxxxxx;
(c) a willful act by Xxxxx which constitutes gross misconduct and
which is injurious to X.X. Xxxxxxx; or
(d) continued substantial violations by Xxxxx of his employment
duties which are demonstrably willful and deliberate on Xxxxx'x
part after there has been delivered to Xxxxx a written demand for
performance from X.X. Xxxxxxx which specifically sets forth the
factual basis for X.X. Xxxxxxx'x belief that Xxxxx has not
substantially performed his duties.
Xxxxx Employment Agreement -- 1-01
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Xxxxx shall have a period of fifteen (15) days after receipt of notice that he
is being terminated for Cause, to cure any such action capable of being cured
within such fifteen (15) day period; failure to cure within such fifteen (15)
day period shall result in his termination effective on the sixteenth (16th) day
after notice of termination.
6.2 TERMINATION FOR PERFORMANCE. For the purposes of this Employment Agreement,
termination for "Performance" shall be as determined by the X.X. Xxxxxxx
Board of Directors in the good faith exercise of their business judgment.
6.3 DISPUTE RESOLUTION. Should Xxxxx dispute whether X.X. Xxxxxxx has been
reasonable in interpreting "Cause" or "Performance" then in such event
Xxxxx may submit the matter to arbitration. The arbitration proceeding
shall be conducted under the applicable rules of the American Arbitration
Association and shall be located in Denver, Colorado. If such organization
ceases to exist, the arbitration shall be conducted by its successor, or by
a similar arbitration organization, at the time a demand for arbitration is
made. The decision of the arbitrator shall be final and binding on both
parties. Each party shall be responsible for its or his own expenses for
the arbitrator's fee, attorney's fees, expert testimony, and for other
expenses of presenting its or his case. Other arbitration costs, including
fees for records or transcripts, shall be borne equally by the parties.
6.4 COMPENSATION EARNED PRIOR TO TERMINATION. In the event that X.X. Xxxxxxx
terminates Xxxxx for Cause during the Initial Employment Term or any
renewal periods, Xxxxx shall be entitled to the salary earned prior to the
date of termination as provided for in this Employment Agreement computed
pro rata up to and including that date and all benefits set forth in
Article 4 of this Agreement. Xxxxx shall be entitled to no further
compensation as of the date of termination.
6.5 RENEWAL. This Employment Agreement shall be deemed automatically renewed
following the Initial Employment Term for successive one (1) year periods
without any further act of the parties, unless, not later than thirty (30)
days prior to the end of any period, either party provides the other with
written notice of intent not to renew; notwithstanding the foregoing,
however, Section 3.2, Stock Option Grant, of this Employment Agreement
shall not apply to any such renewal periods after the initial three (3)
year period.
6.6 NON-RENEWAL. Any non-renewal of this Employment Agreement shall be treated
as a termination of Xxxxx without Cause and be governed by the provisions
of this Employment Agreement applicable to terminations without Cause,
including, but not limited, to the payments and benefits due to Xxxxx under
Sections 3, 4 and 5 of this Employment Agreement.
Xxxxx Employment Agreement -- 1-01
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7. COOPERATION. The parties hereto agree that, at all times during Xxxxx'x
employment, and following termination of his employment, each party shall
avoid making any remarks about the other party, which for X.X. Xxxxxxx
shall include its affiliates, officers, directors, employees and agents
that would be false and defamatory of the other party.
8. MISCELLANEOUS.
8.1. ASSIGNMENT. Neither X.X. Xxxxxxx nor Xxxxx may assign this Employment
Agreement or any of their respective obligations hereunder.
8.2. NOTICES. Any notice or other communication provided for or required by
this Employment Agreement shall be given within (i) three (3) business
days after mailing by registered or certified mail, postage prepaid,
return receipt requested, or (ii) one (1) business day after deposit
with a recognized overnight courier (such as Federal Express) or in
person in each case to the following address:
TO X.X. XXXXXXX:
X.X. Xxxxxxx & Company
Xxx Xxxxxxxxxx Xxx
Xxxxxx, Xxxxxxxx 00000
Attn: Vice President, General Counsel
TO XXXXX:
Xxxxxx X. Xxxxx
0000 Xxxxx Xxxxx Xxxxx
Xxxxx, Xxxxx 00000
or at such other address or addresses as the X.X. Xxxxxxx or Xxxxx may
designate.
8.3. GOVERNING LAW. This Employment Agreement and each term thereof shall
be subject to and governed by the laws of the State of Colorado.
8.4. SEVERABILITY. If any portion of this Employment Agreement shall be,
for any reason, invalid or unenforceable, the remaining portion or
portions shall nevertheless be valid, enforceable and effective unless
to do so would clearly violate the present legal and valid intention
of the parties hereto.
Xxxxx Employment Agreement -- 1-01
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8.5. ENTIRE AGREEMENT. This Employment Agreement constitutes the entire
agreement between the parties and contains all of the agreements
between the parties with respect to the subject matter hereof. This
Employment Agreement supersedes any and all other agreements, either
oral or written, between the parties hereto with respect to the
subject matter hereof, including, without limitation, that certain
"Term Sheet" dated January __, 2001.
8.6. AMENDMENT. No change or modification of this Employment Agreement
shall be valid unless the same shall be in writing and signed by Xxxxx
and a duly authorized officer of X.X. Xxxxxxx. No waiver of any
provision of this Employment Agreement shall be valid unless in
writing and signed by the party or party to be charged.
8.7 BENEFIT. This Employment Agreement shall be binding upon and inure to
the benefit of X.X. Xxxxxxx and Xxxxx and their respective successors,
heirs, legal representatives and permitted assigns. This Employment
Agreement is hereby executed as of the date set forth above.
X.X. XXXXXXX & COMPANY XXXXX
By: /s/ XXXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
-------------------------------- ----------------------------
(Authorized Signature) Xxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Executive Vice President & CFO
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SCHEDULE OF ATTACHMENTS
ATTACHMENT A - JOB DESCRIPTION
CHIEF MARKETING OFFICER
SUMMARY:
The Chief Marketing Executive directs company's marketing activities, including
product positioning, advertising, public relations, direct mail media,
telemarketing and other marketing communications, as well as product management,
market research and business partners. Establishes marketing goals necessary to
reach corporate sales and profitability objectives.
DUTIES AND RESPONSIBILITIES:
1. Reviews customer and market needs. Analyzes company products, competition,
marketplace needs, pricing and develops product plan to position software
products and services in marketplace to maximize competitive advantage.
2. Directs definition of strategic components of product marketing plans in
conjunction with executive team using market knowledge, product
development, and sales. Feeds information back to organization as
appropriate to improve competitive position.
3. Defines marketing strategies/plans, and assures plans are consistent with
company's goals and objectives. Evaluates and revises tactical and
strategic plans as needed.
4. Conducts market research to determine competitive position, potential
opportunities and ways to profit from them.
5. Directs company's advertising and product placement activities with the
goal of establishing and maintaining a favorable image of company with
investors, exiting and potential customers, employees and the public.
Evaluates effectiveness of marketing campaigns to determine best use of
advertising and marketing expenditures.
6. Manages personnel activities of staff (i.e. hiring, training, supervision).
7. Prepares and manages within approved budget.
REPORTING RELATIONSHIPS:
Xxxxx Employment Agreement -- 1-01
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Reporting to the incumbent is the media creations, public relations and internal
communications staff.
BACKGROUND AND EXPERIENCE:
The incumbent will have at least 12 years in sales and/or marketing, with 7 to
10 years management experience.
Xxxxx Employment Agreement -- 1-01
Page 9 of 9
SEPARATION AGREEMENT
This Separation Agreement (referred to as "the Agreement") is made by and
between X.X. Xxxxxxx & Company, X.X. Xxxxxxx World Solutions Company and X.X.
Xxxxxxx World Source Company (collectively "X.X. Xxxxxxx"), corporations having
their principal place of business at 0000 Xxxxxxxxxx Xxx, Xxxxxx, Xxxxxxxx
00000, and ___________________________ (referred to as "You" and by "Your").
You and X.X. Xxxxxxx are each referred to as a "party" and both are referred to
as "parties."
Whereas, Your employment with X.X. Xxxxxxx has been terminated effective
_______________.
Whereas, You and X.X. Xxxxxxx desire to resolve any and all claims and disputes
between You and X.X. Xxxxxxx, including, without limitation, those related to
Your employment by, or separation from, X.X. Xxxxxxx or alleged
representations, contracts, and agreements (written, oral, or implied)
regarding Your employment by X.X. Xxxxxxx; and
In consideration of the mutual promises expressed herein and the payment to be
made to You, You and X.X. Xxxxxxx agree as follows:
1. PAYMENTS. No later than twenty (20) calendar days following the Effective
Date of this Agreement and provided that this Agreement has not been revoked by
You under section 5, X.X. Xxxxxxx will pay You the gross sum of USD ________.
X.X. Xxxxxxx will reimburse You for Your premiums for Your existing medical,
dental, and vision health insurance for a period of XXX (XX) months, or until
Your coverage under the Consolidated Omnibus Budget Reconciliation Act
("COBRA") terminates, whichever period is shorter.] The parties expressly
agree that the payments made under this section exceed any compensation or
benefits that You would otherwise be entitled to if You had not executed this
Agreement. The payments will be reduced by any amounts owed X.X. Xxxxxxx and
the amount of applicable taxes withheld by X.X. Xxxxxxx, which will be withheld
at the supplemental tax rate.
2. RELEASE. Upon receipt of the payments set forth in Section 1 above, you
irrevocably and unconditionally release and forever discharge X.X. Xxxxxxx,
X.X. Xxxxxxx' past and present directors, officers, shareholders, employees,
successors, attorneys, agents, representatives, and assigns (each a "Releasee")
from any and all liabilities, claims (including attorneys' fees), demands,
rights, and causes of actions, whether known or unknown, that You may have
or claim to have against any Releasee, including, without limitation, those
relating to Your employment by, or separation from, X.X. Xxxxxxx. Without
limiting the generality of this section, and by way of example and not
limitation, this section shall specifically apply to rights and claims under:
Title VII of the Civil Rights Act of 1964 as amended, the Age Discrimination in
Employment Act (ADEA) of 1967, as amended, the Older Worker Benefit Protection
Act, the Civil Rights Acts of 1866 and 1871, the Civil Rights Act of 1991, the
Rehabilitation Act of 1973, Executive Order 11246, the Equal Pay Act of 1963,
the Americans with Disabilities Act, breach of contract, defamation, infliction
of emotional distress, wrongful discharge, breach of a covenant of good faith
and fair dealing, and any other federal, state or local statute, law,
ordinance, regulation, order or principle of law. By signing this Agreement,
You represent that You have not filed nor caused to be filed any charge,
complaint, lawsuit, or other claim (collectively "Claims") against any Releasee
and You specifically waive the right to recover any remedies, monetary or
otherwise, that might be available if You file any such Claims. This Agreement
may be used by any Releasee as a complete defense to any Claims asserted by You
or anyone on Your behalf against a Releasee. If You or anyone on Your behalf
violates this section of the Agreement, You shall pay all costs and expenses
(including reasonable attorneys' fees) incurred by a Releasee in defending
against the claims.
3. MISTAKE. You understand that, after the date of this Agreement, You may
discover facts different from, or in addition to, those which You now know or
believe to be true with respect to the claims released or waived above and
that, as part of the consideration contained in this Agreement, You expressly
assume the risk that the Agreement was made on the basis of mistake or
mistakes, mutual or unilateral, of any nature whatsoever. You intend that this
Agreement shall not be rescinded, reformed, modified, voided, or changed in any
way on the basis of any mistake or mistakes whatsoever.
4. NO LIABILITY. The Payment is not intended to be, and shall not be
construed as, an admission of liability or wrongdoing on the part of any
Releasee. No Releasees have admitted, nor do they admit, that they engaged in
any wrongful or unlawful act, or that they violated any federal, state, or
local statute, law, regulation, ordinance, order, or principle of law, and
further expressly deny such violation.
5. REVOCATION. You have seven (7) calendar days after Your execution of this
Agreement (the "Revocation Period") in which to revoke this Agreement by so
notifying ________________________ at X.X. Xxxxxxx. This Agreement shall be
effective the eighth day after Your execution of this Agreement (the "Effective
Date"), provided that You have not revoked this Agreement.
6. FUTURE COOPERATION. You shall cooperate, at X.X. Xxxxxxx' expense, with
X.X. Xxxxxxx in connection with any legal proceeding in which X.X. Xxxxxxx is
or may become a party.
7. EFFECT ON EXISTING AGREEMENTS. Notwithstanding this Agreement, the limited
specific provisions of any agreements between You and X.X. Xxxxxxx relating to
confidentiality, unfair competition, noncompetition, employee solicitations,
and inventions are unaffected and remain in full force and effect. All other
provisions of all other agreements between You and X.X. Xxxxxxx shall be
superseded and become null and void upon the effective date of this Agreement.
8. CONFIDENTIALITY/NON-DISPARAGEMENT. You shall not disclose the existence,
facts, or terms of this Agreement to anyone other than Your immediate family,
accountants, attorneys, or financial or tax advisors who have been advised of,
and agree to maintain, its confidentiality. You shall not do or say anything
that portrays X.X. Xxxxxxx or their management, employees, products, or
services in a negative light.
9. MISCELLANEOUS. The Agreement constitutes the complete and exclusive
agreement between the parties concerning the subject matter hereof and
supersedes any prior communication regarding such subject matter. This
Agreement may not be canceled or modified unless in writing
1
signed by You and a vice-president or most senior officer of X.X. Xxxxxxx. Any
waiver of any default or breach of this Agreement shall be effective only if in
writing and signed by an authorized representative of the party providing the
waiver. No such waiver shall be deemed to be a waiver of any other or subsequent
breach or default. In entering into this Agreement, You represent and warrant
that You are not relying, and will not rely, on any promises, inducements, or
representations made by or on behalf any Releasee with respect to the subject
matter of this Agreement. This Agreement shall be binding on and shall inure to
the benefit of the parties and their respective heirs, legal representatives,
successors, assigns, directors, officers, agents, and employees. This Agreement
will be governed by the internal laws of the State of Colorado, without regard
to conflict of law principles. If any judicial or administrative authority
determines that any term of this Agreement is invalid or illegal, such
determination shall not apply to the remaining terms of this Agreement and all
remaining provisions of this Agreement shall remain in full force and effect.
YOU HAVE FULLY READ, UNDERSTAND THE SIGNIFICANCE AND CONSEQUENCES OF, AND
FREELY AGREE TO BE BOUND BY THIS AGREEMENT. YOU HAVE BEEN ADVISED TO CONSULT
WITH AN ATTORNEY REGARDING THE PURPOSE AND EFFECT OF THIS AGREEMENT BEFORE
SIGNING.
YOU UNDERSTAND THAT APPLICABLE LAW PROVIDES YOU WITH TWENTY-ONE (21) CALENDAR
DAYS IN WHICH TO CONSIDER THIS AGREEMENT. [REMOVE THIS IF EMPLOYEE IS NOT
FREELY WAIVING THIS PERIOD -> BY SIGNING THIS AGREEMENT BEFORE THE END OF THE
21-DAY PERIOD, YOU ARE INDICATING THAT YOU ARE FREELY WAIVING THE BALANCE OF
THIS PERIOD.]
YOU HAVE SEVEN (7) CALENDAR DAYS FROM THE DATE OF YOUR SIGNATURE BELOW IN WHICH
TO REVOKE THIS AGREEMENT AS PERMITTED IN SECTION 5.
X.X. XXXXXXX
By
--------------------------------- -------------------------------------
(Authorized Signature) (Your Signature)
--------------------------------- -------------------------------------
(Print or Type Name) (Print or Type Name)
--------------------------------- -------------------------------------
(Title) (Print Address)
-------------------------------------
(Date)
[***USE BELOW WHEN YOU ARE NOT
WITNESSING SIGNATURE]
STATE OF )
)ss
COUNTY OF )
SUBSCRIBED AND SWORN TO before me this
___ Day of _______, 20__ by
________________________________.
Witness my hand and official seal.
My commission expires: _____________.
_____________________________________
Notary Public
2
ADDENDUM I TO EMPLOYMENT AGREEMENT
This Addendum is made this 25th day of October 2001 to that certain Employment
Agreement, dated February 5, 2001 (the "Agreement") between X.X. XXXXXXX &
COMPANY, a Delaware corporation (referred to as "X.X. Xxxxxxx"), and XXXXXX X.
XXXXX (referred to as "Xxxxx") in consideration of their mutual promises and
subject to its terms and conditions.
RECITALS
A. J.D. Xxxxxxx and Xxxxx entered into the Agreement providing for terms and
conditions of Xxxxx'x employment with X.X. Xxxxxxx including, among others,
the terms of certain grants of stock options to purchase the common stock
of X.X. Xxxxxxx pursuant to the terms of X.X. Xxxxxxx 1997 Equity Incentive
Plan.
B. It is necessary to correct the term of the vesting of such stock options to
comply with the terms of the 1997 Equity Incentive Plan.
It is agreed between Xxxxx and X.X. Xxxxxxx to amend the Agreement as follows:
3.2 STOCK OPTION GRANT. The first sentence of the third paragraph of Section
3.2 is amended by the deleting the sentence in its entirety and replacing
it with the following:
Each tranche of the Stock Option Grant shall vest and become
exercisable 25% of such particular tranche of the grant on each
anniversary date; all unvested options will terminate effective on the
date of termination.
THIS ADDENDUM I, INCLUDING THE AGREEMENT OF WHICH IT IS A PART, IS A COMPLETE
AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES, WHICH SUPERSEDES
ALL PRIOR OR CONCURRENT PROPOSALS AND UNDERSTANDINGS, WHETHER ORAL OR WRITTEN,
AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER
OF THIS ADDENDUM AND THE AGREEMENT. Notwithstanding anything to the contrary in
the Agreement, in the event of a conflict between this Addendum I and the
Agreement, this Addendum I shall prevail. All other terms and conditions remain
unchanged and are ratified hereby.
IN WITNESS WHEREOF, the parties have executed this Addendum this 25th day of
October 2001.
X.X. XXXXXXX & COMPANY XXXXX
By: /s/ XXXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
--------------------------------- ---------------------------------
(Authorized Signature) Xxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Executive Vice President & CFO
