EXHIBIT 10.1
EMPLOYMENT AGREEMENT
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This Agreement is made and entered into effective as of the 28th day of
December, 1995, by and between GEOCITIES (formerly Xxxxxxx Hills Internet), a
California corporation (the "Company"), and XXXXX XXXXXXX ("Employee").
1. Employment.
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1.1 The Company agrees to employ or continue the employment of Employee on
the terms and conditions of this Agreement commencing as of January 1, 1996, and
continuing for two years thereafter, unless terminated earlier as provided in
Paragraph 4 below.
2. Duties of Employee.
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2.1 Employee shall serve as the President and Chief Executive Officer of
the Company, and head of its management team. In this capacity, Employee shall
do and perform all services, acts or things necessary or advisable to manage and
conduct the business of the Company, including without limitation recruiting
management and staff, developing and managing strategic relationships with third
parties, preparing operating plans and budgets, negotiating contracts and
providing guidance on the Company's overall strategy. Employee's actions shall
be subject at all times to the policies set by the Company's Board of Directors,
and to the consent of the Board of Directors as may be necessary or appropriate.
2.2 Employee agrees to devote Employee's full time, attention, skill, and
efforts to the performance of duties for the Company during the term of this
Agreement.
2.3 Employee shall not engage in any other business duties or pursuits
whatsoever, or directly or indirectly render any services of a business,
commercial or professional nature to any other person or entity, whether for
compensation or otherwise, without the prior written consent of the Company's
Board of Directors.
2.4 This Agreement shall not be interpreted to prohibit Employee from
making passive personal investments or conducting private business affairs if
those activities are not in competition with the Company and do not materially
interfere with the services required under this Agreement.
3. Calculation of Compensation.
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3.1 Salary. The Company shall pay to Employee, as compensation for
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services to be rendered by Employee under this Agreement, salary at the rate of
Seven Thousand Eighty Three Dollars ($7,083) per month, payable semi-monthly on
the fifteenth (15th) and last day of each month during the term of this
Agreement, prorated for any partial employment period, and subject to such
withholding as may be required by law. The Company shall conduct a
review of Employee's performance on the first anniversary of the date of this
Agreement for the purpose of determining the amount of any increase in
Employee's salary, effective January 1, 1997.
3.2 Bonus. As additional compensation for the services rendered under
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this Agreement, Employee shall be eligible to receive an amount up to twenty-
five percent (25%) of Employee's annual salary, based on Employee's meeting
certain performance targets to be mutually agreed upon by Employee and the
Company's Board of Directors. Such bonus shall increase to an amount up to
fifty percent (50%) of Employee's annual salary, based on Employee's meeting
certain additional performance targets to be mutually agreed upon by Employee
and the Company's Board of Directors. The performance targets described in this
Section 3.2 shall be agreed upon not later than January 31 of each year during
the term of this Agreement.
3.3 Vacation. Employee shall be entitled to a maximum of fifteen (15)
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days of paid vacation during each year of employment. Vacation hours shall
accrue at a rate of 1.25 days per month. Employee shall not be entitled to
carry over more than fifteen (15) accrued, unused vacation days from one year to
the following year. Upon accruing the maximum number of vacation days, Employee
shall accrue no additional vacation days until the amount of accrued vacation is
reduced by actual vacation days taken. Employee shall not be entitled to
vacation pay in lieu of vacation, unless agreed to in writing by the Company.
3.4 Stock Option Plan. During his employment with the Company under this
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Agreement, Employee shall be eligible to participate in the Company's stock
option plan, subject to such plan's requirements, including those regarding
eligibility and vesting.
3.5 Other Benefits. During the term of this Agreement, the Employee shall
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be entitled to receive all other group life, health, medical or disability
insurance or other employee benefits generally available to other employees and
officers of the Company, when and as Employee becomes eligible therefor.
3.6 Business Expenses. The Company shall promptly reimburse Employee for
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all reasonable business expenses incurred by Employee in connection with the
business of the Company. Reimbursement shall be subject to Employee's providing
the Company with reasonable documentation of any expenditures for which Employee
is seeking reimbursement.
4. Termination.
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4.1 Termination for Cause.
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(a) The Company may terminate this Agreement if, in the reasonable
determination of the Board of Directors, Employee wilfully breaches or
habitually neglects the duties which he is required to perform under the terms
of this Agreement, or commits such acts of dishonesty, fraud or
misrepresentation or is convicted of any felony or any other serious crime as
would prevent the effective performance of his duties.
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(b) The Company may at its option terminate this Agreement for the
reasons stated in this Subparagraph 4.1 by giving written notice to Employee
without prejudice to any other remedy to which the Company may be entitled
either at law or in equity. The notice of termination shall specify the ground
or grounds for termination and shall be supported by a statement of all relevant
facts.
(c) Termination under this Subparagraph 4.1 shall be considered
termination "for cause."
4.2 Termination Without Cause.
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(a) This Agreement shall be terminated upon the death of Employee.
(b) The Company may, at its sole option, terminate this Agreement if
Employee suffers any physical or mental disability which has prevented him from
performing his duties under this Agreement for more than six (6) months. The
Company shall give Employee thirty (30) days' prior written notice of his
termination pursuant to this provision.
(c) Termination under this Subparagraph 4.2 shall not be considered
termination "for cause."
5. Assignment.
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Employee may not, without the prior written consent of the Company, assign
this Agreement or any rights or obligations hereunder. The Company may assign
this Agreement and delegate any of its rights and duties, without the consent of
Employee, to any of its subsidiaries or affiliates or to any person or entity
who purchases the assets or stock of the Company.
6. Miscellaneous.
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6.1 This Agreement supersedes any and all other agreements, either oral or
in writing, between the parties hereto with respect to the employment of
Employee by the Company, and contains all of the covenants and agreements
between the parties with respect to such employment in any manner whatsoever.
Each party to this Agreement acknowledges that no representations, inducements,
promises or agreements, oral or otherwise, have been made by any party or anyone
acting on behalf of any party which are not expressly contained herein.
6.2 This Agreement may not be amended, supplemented, or modified or
extended except by a written agreement which expressly refers to this Agreement
and which is signed by each of the parties hereto.
6.3 This Agreement is made in and shall be governed by the laws of
California.
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6.4 In the event that any provision of this Agreement is determined to be
illegal, invalid, or void for any reason, the remaining provisions hereof shall
continue in full force and effect.
6.5 To the extent that any portion of this Agreement is deemed
unenforceable by virtue of its scope in terms of area, business activity
prohibited and/or length of time, but could be enforceable by reducing the scope
of area, business activity prohibited and/or length of time, Employee and the
Company agree that same shall be enforced to the fullest extent permissible
under the laws and public policies applied in the jurisdiction in which
enforcement is sought, and that the Company shall have the right, in its sole
discretion, to modify such invalid or unenforceable provision to the extent
required to be valid and enforceable. Employee agrees to be bound by any promise
or covenant imposing the maximum duty permitted by law which is subsumed within
the terms of any provision hereof, as though it were separately articulated in
and made a part of this Agreement, that may result from striking or modifying
any of the provisions hereof.
6.6 Employee represents and warrants to the Company that there is no
restriction or limitation, by reason of any agreement or otherwise, upon
Employee's right or ability to enter into this Agreement and fulfill the
obligations under this Agreement.
6.7 Employee acknowledges, represents and agrees that Employee is not
relying on any inducement, representation, promise, or other statement not
expressly set forth herein in entering into this Agreement and accepting
employment with the Company, including without limitation any representation
regarding the term of employment or any right to continued employment.
6.8 The Company and Employee agree that claims or controversies arising
between them concerning this Agreement, Employee's employment or the termination
of such employment shall be resolved by binding arbitration in accordance with
the provisions of Exhibit "A", except as otherwise provided therein.
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/s/ Xxxxx Xxxxxxx
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XXXXX XXXXXXX
GEOCITIES, a California corporation
By: /s/Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: President
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EXHIBIT "A"
Arbitration of Employment Disputes
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1. Exclusive Remedy. The Company and Employee agree that, subject to the
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exclusions set forth in Paragraph 2 below, all claims or controversies arising
out of Employee's employment with the Company, or the termination thereof, shall
be submitted to final and binding arbitration. The foregoing includes any claim
brought against the Company, its parent, subsidiaries or affiliates and their
present and former officers, agents and employees. The Company and Employee
agree that arbitration is in lieu of, and that this Agreement constitutes a
waiver of, any court or jury trial that the Company or Employee might otherwise
be entitled to. The award or decision of the arbitrator shall be final and
judgment may be entered on it in accordance with applicable law in any court
having jurisdiction.
2. Scope of Agreement to Arbitrate. Except as provided below, this
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agreement to arbitrate includes, without limitation, any claims which may be
brought for employment discrimination (including discrimination on any legally
protected basis such as age, color, race, gender, sexual preference or
orientation, marital status, national origin, citizenship, mental or physical
disability, religious affiliation or veteran status) under federal, state or
local law, including, but not limited to, the Age Discrimination in Employment
Act of 1967, as amended, Title VII of the Civil Rights Act of 1964, as amended,
the Equal Pay Act of 1963, the Americans With Disabilities Act and the
California Fair Employment and Housing Act, and any claims for breach of express
or implied contract, breach of the covenant of good faith and fair dealing,
wrongful discharge, promissory estoppel, retaliation, harassment, personal
injury, tort and violation of public policy. This agreement to arbitrate is
subject only to the following exceptions: (1) claims for unemployment
compensation or workers' compensation benefits; (2) claims brought by Employee
during the term of this Agreement other than tort claims and employment
discrimination claims and related retaliation and harassment claims; and (3)
claims brought under the Employee Retirement Income Security Act.
3. Waiver of Punitive Damages and Claims for Attorneys' Fees. Employee
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understands that certain types of claims arising out of employment or
termination of employment, such as claims for employment discrimination, could
allow Employee to seek punitive damages and recover attorneys' fees. By entering
into this Agreement, Employee relinquishes any right to seek or receive punitive
damages or recover attorneys' fees in any forum, for any dispute arising out of
Employee's employment or the termination thereof. The parties agree that the
Arbitrator resolving a dispute is not permitted to award punitive or exemplary
damages or attorneys' fees to the employee for any dispute covered by this
agreement to arbitrate.
4. Arbitration Procedure. Any dispute that is to be resolved by
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arbitration under this Agreement shall be decided by arbitration held in Los
Angeles County, California, and
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shall be administered by the American Arbitration Association (or equivalent
dispute resolution organization selected by the Company).
The Employment Dispute Resolution Rules of the American Association shall
apply and govern the arbitration, subject to the following:
(a) A demand for arbitration must be made in writing within the time period
set forth in the Agreement. Notice to the Company of a demand for arbitration
shall be sent to its principal place of business.
(b) The arbitration shall be held before one (1) arbitrator who shall be
selected by mutual agreement of the parties; if agreement is not reached on the
selection of an arbitrator within thirty (30) days after a party's demand for
arbitration, then the parties shall select a single arbitrator from a list of
seven (7) arbitrators designated by the American Arbitration Association. The
arbitrator appointed must be a former or retired judge with experience in
deciding or litigating employment law cases.
(c) All proceedings involving the parties shall be reported by a certified
shorthand court reporter and written transcripts of the proceeding shall be
prepared and made available to the parties.
(d) The arbitrator shall prepare in writing and provide to the parties
findings of fact and conclusions of law sufficient to provide a rationale for
the arbitrator's decision with respect to each matter at issue.
(e) Subject to the limitation in Paragraph 3 above, the prevailing party
shall be awarded reasonable expert and nonexpert witness costs and expenses, and
other reasonable costs and expenses incurred in connection with the arbitration,
unless the arbitrator for good cause determines otherwise.
(f) Costs and fees of the arbitrator shall be borne by the nonprevailing
party, unless the arbitrator for good cause determines otherwise.
(g) The provisions of Title 9 of Part 3 of the California Code of Civil
Procedure, including Section 1283.05, and successor statutes, permitting
expanded discovery proceedings shall be applicable to all disputes that are
arbitrated pursuant to this Agreement.
NOTICE: BY INITIALLING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY
DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF EMPLOYMENT
DISPUTES" PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW
AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED
IN A COURT OR JURY TRIAL. BY INITIALLING IN THE SPACE BELOW YOU ARE GIVING UP
YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS SUCH RIGHTS ARE
SPECIFICALLY INCLUDED IN THE "ARBITRATION OF EMPLOYMENT
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DISPUTES" PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO
THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE
FEDERAL ARBITRATION ACT AND CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 1281 ET
SEQ. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT
DISPUTES ARISING OUT OF THE MATTERS DESCRIBED HEREIN TO NEUTRAL
ARBITRATION.
Initials: /s/DCB /s/DCB
----------------------- --------
Company Employee
(Officer should initial
on behalf of Company)
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AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT dated as of January 13, 1997,
by and among GEOCITIES, a California corporation (the "Company"), and XXXXX
XXXXXXX ("Employee").
W I T N E S S E T H:
-------------------
WHEREAS, the Company and Employee are parties to an Employment
Agreement dated as of December 28, 1995 (the "Original Employment Agreement"),
which provides, among other things, for the employment by the Company of
Employee as President and Chief Executive Officer of the Company, on the terms
and subject to the conditions set forth therein; and
WHEREAS, the Company is offering for sale shares of Series D Preferred
Stock to certain investors (the "Series D Investors") pursuant to the terms of a
Preferred Stock Purchase Agreement dated as of January 10, 1997 (the "Purchase
Agreement"); and
WHEREAS, in order to induce the Series D Investors to consummate the
transactions contemplated by the Purchase Agreement, the parties hereto desire
to amend the Original Employment Agreement in the manner hereinafter provided,
on the terms and subject to the conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and subject to and
on the terms and conditions herein set forth, the parties hereto agree as
follows:
1. Capitalized Terms. Capitalized terms used herein and not
-----------------
otherwise defined shall have the meanings ascribed thereto in the Original
Employment Agreement.
2. Amendments to Original Employment Agreement. In accordance with
-------------------------------------------
Section 6.2 of the Original Employment Agreement, the Original Employment
Agreement is hereby amended as follows:
(a) All references in Sections 2.2, 3.1, 3.2 and 3.5 to the "term of
this Agreement" are replaced by references to the "term of Employee's employment
hereunder", and the reference in Section 4.1(b) to the Company's right to
"terminate this Agreement" is replaced by a reference to the right to "terminate
Employee's employment hereunder."
(b) Section 1.1 of the Original Employment Agreement is hereby amended
and restated in its entirety to read as follows:
"The Company agrees to employ or continue the employment of
Employee on the terms and conditions of this Agreement commencing as
of
January 1, 1996 and continuing until December 31, 1998, unless earlier
terminated as provided in Paragraph 4 below."
(c) Section 3.1 of the Original Employment Agreement is hereby amended
as follows:
(i) by deleting the phrase and number "Seven Thousand Eighty-Three
Dollars ($7,083)", respectively, and substituting in lieu thereof the
phrase and number "Ten Thousand Dollars ($10,000)," and by deeming the
foregoing amendment as reflecting the increase in Employee's salary that
was to have become effective as of January 1, 1997, as provided in Section
3.1 of the Original Employment Agreement, and
(ii) by deleting the last sentence thereof in its entirety and
substituting the following text in lieu thereof:
"The Company shall conduct a review of Employee's performance on
January 1, 1998 for the purpose of determining the amount of any
increase in Employee's salary, effective as of January 1, 1998."
(d) Section 4.1(a) of the Original Employment Agreement is hereby
amended and restated in its entirety to read as follows:
"The Company may terminate the employment of Employee hereunder
if, in the reasonable determination of the Board of Directors,
Employee (i) materially breaches or habitually neglects the duties
which he is required to perform under this Agreement, (ii) fails to
follow the reasonable and lawful duties assigned to Employee by the
Board of Directors or the reasonable and lawful orders of the Board of
Directors, (iii) wilfully breaches the provisions of Section 2.3 of
this Agreement or the provisions of the Confidential Information and
Inventions Agreement between the Company and Employee, or (iv) commits
any felony or act of dishonesty, fraud or misrepresentation directly
relating to the Company or that would constitute a breach of
Employee's fiduciary duty to the Company, (v) has been convicted of
any felony or (vi) has committed any other serious crime as would
prevent the effective performance of his duties."
(e) Section 4.2(c) of the Original Employment Agreement is hereby
amended and restated in its entirety to read as follows:
"The Company may also terminate Employee's employment under this
Agreement other than pursuant to Section 4.1 above or paragraphs (a)
or (b) of this Section 4.2, in which case, so long as Employee shall
not have breached the provisions of his Confidential Information and
Inventions Agreement with
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the Company, the Company shall pay to Employee, as severance pay or
liquidated damages or both, an amount equal to Employee's then-current
annual base salary, such amount being payable in equal installments at
regular intervals in accordance with the Company's payroll practices
over the duration of the twelve-month post-termination period.
Notwithstanding anything to the contrary expressed or implied in this
Agreement, except as set forth in this paragraph (c) and except for
amounts payable in connection with the exercise by the Company of its
repurchase right set forth in Section 6 below, the Company shall not
be obligated to make any payments to Employee or on his behalf of
whatever kind or nature by reason of Employee's cessation of
employment, other than (i) such amounts, if any, of his salary as
shall have accrued, and any bonus that shall have become due and
payable, that remain unpaid as of the date of said cessation and (ii)
such other amounts which may be then otherwise payable to Employee
from the Company's benefits plans or reimbursement policies, if any."
(f) The Original Employment Agreement is hereby amended by
redesignating Section 6 and Sub paragraphs 6.1 through 6.8 of the Original
Employment Agreement and references thereto as Section 7 and Subparagraphs 7.1
through 7.8 and references to such revised numeration, and inserting immediately
prior to such redesignated Section the following new Section 6:
"6. Employee's Stock. Employee has purchased from the Company
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583,250 shares of Common Stock and 300,000 shares of Series C
Preferred Stock and has been granted options to purchase up to 150,000
shares of Common Stock (such shares and any shares issuable upon
exercise of said options or conversion of the Series C Preferred Stock
being referred to herein as the "Employee's Shares"). The Employee's
Shares shall be affected as follows upon termination of Employee's
employment with the Company:
6.1 In the event that Employee ceases to be employed by the
Company for any reason (including, without limitation, as a result of
resignation, retirement, dismissal with or without cause, death or
disability), the Company shall have the sole right and option to
repurchase all of the Employee's Shares at their Fair Market Value (as
defined below). The Company agrees to give Employee notice of its
intent to exercise such option within ninety (90) days of the
effective date of such termination and to have paid for such shares in
cash at the end of such 90th day (unless the Fair Market Value has not
been conclusively determined as of such date, in which case the
Company shall pay Employee promptly after the Fair Market Value is
determined in accordance with Section 6.2 below).
6.2 The Fair Market Value of the Employee's Shares to be
repurchased shall initially be proposed by the Board of Directors
within 30 days of the later of the date of termination of his
employment and the date
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of exercise by Employee of options to purchase Employee Shares. If
Employee objects to the Fair Market Value as so proposed, Employee may
request an appraisal by written notice of objection delivered not
later than ten (10) days after receipt of the Fair Market Value set by
the Company's Board of Directors. If an appraisal is requested,
Employee and the Company shall jointly select an appraiser to
determine the Fair Market Value of the Employee's Shares. If Employee
and the Company cannot agree on an appraiser, each shall select its
own appraiser (each a "Party Appraiser") and the two Party Appraisers
shall jointly select a third appraiser (the "Arbitrating Appraiser").
Each of the Party Appraisers shall submit its appraisal to the
Arbitrating Appraiser, and the Arbitrating Appraiser shall select one
of such appraisals as the Fair Market Value. If any such appraisal
results in a Fair Market Value more than 5% higher than the Board of
Directors' original valuation, then all expenses of such appraisal
shall be paid by the Company; otherwise, the cost of such appraisal
shall be shared equally by Employee and the Company.
6.3 Notwithstanding anything to the contrary set forth in this
Section 6, if (a) Employee's employment with the Company is
involuntarily terminated (a "Termination") other than (i) for cause
(as defined in Subparagraph 4.1 hereof) or (ii) because of Employee's
death, and (b) there is a Liquidation (as such term is defined in the
Second Amended and Restated Articles of Incorporation of the Company)
within one (1) year following such Termination in which the price per
share of Common Stock received by the holders of Common Stock upon the
consummation of the Liquidation (the "Liquidation Price") is greater
than the average price per share for the Employee's Shares received by
Employee from the Company following the Termination (the "Repurchase
Price"), then Employee shall be entitled to receive the following
amounts from the Company concurrently with the consummation of the
Liquidation: (i) if the Liquidation is consummated within the first
six months following Termination, then Employee shall be entitled to
receive an amount equal to the Liquidation Price minus the Repurchase
Price, multiplied by the number of Employee's Shares repurchased by
the Company following such Termination and prorated to reflect the
percentage of holdings of each holder of Common Stock that is being
sold in such Liquidation (the "Differential Amount"); (ii) if the
Liquidation in consummated between the start of the seventh and end of
the ninth month following Termination, then Employee shall be entitled
to receive an amount equal to seventy-five percent (75%) of the
Differential Amount; and (iii) if the Liquidation is consummated
between the start of the tenth and end of the Twelfth month following
Termination, then Employee shall be entitled to fifty percent (50%) of
the Differential Amount. If the Liquidation is consummated following
the end of the twelfth month following Termination, then Employee
shall not be entitled to receive any amounts under this Subparagraph
6.3. Any such amounts payable by the Company under this Subparagraph
6.3 shall be paid to Employee in the same
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form of consideration, and in the same proportions and at the same
times, as shall have been applicable to all other holders of Common
Stock in such Liquidation.
6.4 The right of repurchase described in this Section 6 shall
expire immediately prior to the consummation by the Company of a firm
commitment public offering of Common Stock with gross proceeds to the
Company of $20,000,000 or more and at a price per share equal to
$10.00 or higher (as adjusted for stock splits, stock dividends,
recapitalizations and the like)."
(g) Exhibit A to the Original Employment Agreement is hereby amended
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and restated in its entirety to read as provided in Annex A attached hereto.
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3. Original Employment Agreement. Except as specifically amended
-----------------------------
hereby, the Original Employment Agreement shall continue in full force and
effect in accordance with the provisions thereof as in existence on the date
hereof. After the date hereof, any reference to the Original Employment
Agreement and each reference in the Original Employment Agreement to "this
Agreement," "hereunder," "hereof," "herein" or words of like import shall mean
and be in reference to the Original Employment Agreement as amended hereby.
4. Counterparts. This Agreement may be executed in any number of
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counterparts, by original or facsimile signature, each of which shall constitute
an original, but all of which, when taken together, shall constitute but one
instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first above written.
GEOCITIES
By: /s/ XXXXX X. XXXXXXX
---------------------
Name: Xxxxx X. Xxxxxxx
Title: Chairman & CEO
/s/ XXXXX X. XXXXXXX
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Xxxxx X. Xxxxxxx
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AMENDMENT NO. 2 TO EMPLOYMENT AGREEMENT
THIS AMENDMENT NO. 2 TO EMPLOYMENT AGREEMENT is made and entered into
effective as of the 21st day of May 1998, by and among GeoCities, a California
corporation (the "Company"), and XXXXX XXXXXXX ("Employee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company and Employee are parties to an Employment
Agreement dated as of December 28, 1995, and amended as of January 13, 1997
(collectively, the "Original Employment Agreement"), which provides, among other
things, for the employment by the Company of Employee as President and Chief
Executive Officer of the Company, on the terms and subject to the conditions set
forth therein; and
WHEREAS, the Employee resigned as President and Chief Executive
Officer of the Company in April 1998, and the Employee is serving the Company as
Chairman of the Board and Secretary;
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and subject to and
on the terms and conditions herein set forth, the parties hereto agree as
follows:
1. Capitalized Terms. Capitalized terms used herein and not
-----------------
otherwise defined shall have the meanings ascribed thereto in the Original
Employment Agreement.
2. Amendments to Original Employment Agreement. In accordance with
-------------------------------------------
Section 7.2 of the Original Employment Agreement, the Original Employment
Agreement is hereby amended as follows:
(a) Section 2.1 of the Original Employment Agreement is hereby
amended and restated in its entirety to read as follows:
"Employee shall serve as the Chairman of the Board of Directors
of the Company."
(b) Section 3.1 of the Original Employment Agreement is hereby
amended and restated in its entirety to read as follows:
"Salary. The Company shall pay to Employee, as compensation for
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services to be rendered by Employee under this Agreement, salary at
the rate of One Dollar ($1.00) per year."
(c) Section 3.2 of the Original Employment Agreement is hereby
amended and restated in its entirety to read as follows:
"Bonus. As additional compensation for the services rendered under
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this Agreement, Employee shall be eligible to receive an amount up
to One Hundred Ninety Nine Thousand Nine Hundred Ninety Nine
Dollars ($199,999), at the discretion of the Board of Directors of
the Company."
3. Original Employment Agreement. Except as specifically amended
-----------------------------
hereby, the Original Employment Agreement shall continue in full force and
effect in accordance with the provisions thereof as in existence on the date
hereof. After the date hereof, any reference to the Original Employment
Agreement and each reference in the Original Employment Agreement to "this
Agreement," "hereunder," "hereof," "herein" or words of like import shall mean
and be in reference to the Original Employment Agreement as amended hereby.
4. Counterparts. This Agreement may be executed in any number of
------------
counterparts, by original or facsimile signature, each of which shall constitute
an original, but all of which, when taken together, shall constitute but one
instrument.
IN WITNESS WHEREOF, the parties have executed this Amendment No. 2 as
of the date first above written.
GEOCITIES, a California corporation
By: /s/ XXXXXX X. XXXXX
--------------------
Name: Xxxxxx X. Xxxxx
Title: President and Chief Executive Officer
/s/ XXXXX X. XXXXXXX
---------------------
Xxxxx X. Xxxxxxx
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