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EXHIBIT 10.11
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is entered into between xxxxxxx.xxx, Inc. a
Delaware Corporation with a principal place of business at 0000 Xxxxxxxx Xxxx,
Xxxxx 000, Xx Xxxx, Xxxxxxxxxx, 00000 ("COMPANY"), and Xxxxx X. Xxxxxx, whose
principal residence is at 0000 Xxxx 00xx Xx., Xxxxx, XX, 00000 ("EXECUTIVE").
1. Employment.
a) Executive Responsibilities. COMPANY hereby employs EXECUTIVE, and
EXECUTIVE hereby agrees to accept employment from COMPANY, as Executive Vice-
President of Market Development of COMPANY. EXECUTIVE shall report directly to
COMPANY's Chief Executive Officer. EXECUTIVE agrees during the term of his
employment under this Agreement to perform the duties and responsibilities
customarily required of such position, as reasonably directed by COMPANY's Chief
Executive Officer, and in accordance with COMPANY's bylaws and Delaware
corporation law. EXECUTIVE further agrees to use his best efforts to promote the
interests of COMPANY and to devote his full business time and energies to the
business and affairs of COMPANY, unless otherwise authorized by the Chief
Executive Officer of COMPANY. EXECUTIVE may, however, engage in civic and
not-for-profit activities so long as such activities do not materially interfere
with the performance of his duties to COMPANY hereunder.
b) Director Responsibilities. Subject to the approval of this Agreement
by a majority of the current directors of COMPANY, EXECUTIVE shall be elected a
member of the Board of Directors, to serve in such position until the next
regular meeting of COMPANY's shareholders. EXECUTIVE's continued service on
COMPANY's Board of Directors thereafter shall be subject to his election by vote
of the shareholders, but COMPANY will include
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EXECUTIVE in its recommended slate of __ candidates for membership on the Board.
In the event that EXECUTIVE's employment with COMPANY under this Agreement is
terminated for any reason, EXECUTIVE shall submit to the Chairman of the Board
his resignation as a Director.
2. Term of Employment.
The employment under this Agreement shall commence on May 26, 1999 and
shall end at the end of the day on May 25, 2000, provided that the term of
EXECUTIVE's employment under this Agreement shall thereupon and thereafter be
extended automatically for successive periods of one year unless otherwise
terminated under Paragraph 5 of this Agreement.
3. Compensation.
(a) Base Salary. As compensation for services provided to COMPANY,
EXECUTIVE shall receive a salary at the annual rate of $185,000.00, less such
payroll and withholding taxes as required by law to be deducted and such other
amounts as EXECUTIVE shall authorize in writing. Salary shall begin to accrue
under this Agreement as of June 14, 1999. Provided EXECUTIVE remains employed
under this Agreement beyond the first anniversary date of his employment
hereunder, his salary shall be increased to an annual rate of $300,000 effective
as of that first anniversary date. The salary shall be payable in semi-monthly
installments. Such salary may be increased, but not decreased, from time to time
as decided in the discretion of the Board of Directors of COMPANY.
(b) Bonus. As additional compensation for services rendered by
EXECUTIVE, EXECUTIVE shall be entitled to participate in each incentive bonus
program (if any) that COMPANY's Board of Directors may establish for its
executive employees. Such bonus program shall provide a maximum bonus of fifty
percent (50%) of the salary paid during the year in which the bonus is earned,
based upon factors established by the Chief Executive Officer and approved by
the Board of Directors.
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(c) Equity Compensation. As further compensation for the services
rendered by EXECUTIVE, upon his commencement of employment with COMPANY pursuant
to this Agreement and approval by COMPANY's Board of Directors, EXECUTIVE will
be granted an incentive stock option to purchase 31,500 shares of Common Stock
of COMPANY, subject to increase as provided below, at an exercise price per
share of $1.50 per share. Such options shall be issued pursuant to, and their
exercise and the issuance of shares upon exercise shall be subject to, the
conditions of the COMPANY's 1999 Equity Incentive Plan (the "Plan") and the
corresponding Stock Option Agreement contemplated by the Plan (the "Option
Agreement"), as well as paragraphs 3 (d) and 5 (f), below.
(i) Vesting of Options. EXECUTIVE'S incentive stock options described
above shall vest according to the following schedule:
25% (7,812.5) of the option shares shall vest and be subject to exercise
immediately upon EXECUTIVE's commencement of employment under this
Agreement, provided, however, that if EXECUTIVE voluntarily resigns or
is terminated for cause under this Agreement prior to his completion of
one year of service pursuant to this Agreement, COMPANY shall have the
right, for ninety (90) days immediately following the effective date of
such resignation or termination, to repurchase any shares acquired by
EXECUTIVE through the exercise of such options at the price EXECUTIVE
paid for such shares, and any such options that EXECUTIVE has not yet
exercised shall be null and void. EXECUTIVE agrees to execute such
documents as are necessary to effect COMPANY's repurchase of those
shares.
The remaining 23,437.5 option shares shall vest and be subject to
exercise at the rate of 651 shares for each full month that EXECUTIVE'S
employment continues under this Agreement after the first anniversary
hereunder. The number of shares
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to vest each month and the maximum number of shares that may vest
hereunder is subject to adjustment pursuant to subparagraph (iv) of this
paragraph 3 (d).
(ii) Change in control. Upon a "change in control" (as defined
below), 50% of the total share options granted to EXECUTIVE under paragraph 3
(c), above, that have not yet vested as of the effective date of such change in
control shall vest on the effective date of the change in control. Subject to
provisions regarding termination of EXECUTIVE'S employment for cause hereunder,
the remaining 50% of such unvested share options shall vest at the rate of 1/12
upon the completion of each full month of employment thereafter, unless such
share options would vest sooner pursuant to some other provision of this
Agreement, in which event the schedule which results in the earlier vesting
shall apply. In the event that, within the first twelve (12) months from the
effective date of a change in control, EXECUTIVE's employment is terminated
without cause or EXECUTIVE's duties as Executive Vice President are
significantly changed, the balance of the option shares granted to EXECUTIVE
under this Agreement that have not vested as of the date of such termination or
significant change in duties shall vest immediately. "Change in control" shall
mean the first to occur of: 1) a merger of COMPANY into, or a consolidation or
other reorganization of COMPANY with, another person or business entity with the
result that less than fifty percent (50%) of the directors of the resulting
business entity immediately following the merger, consolidation or other
reorganization were directors of COMPANY immediately prior to the merger,
consolidation or other reorganization; or 2) a sale by COMPANY of more than
fifty
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percent (50%) of its assets (as measured at the time of the agreement to sell);
or 3) any event or events following the reconstitution of the Board of Directors
of COMPANY in connection with the sale of Series C and/or Series D Preferred
Stock of COMPANY (the "Preferred Stock Placement") as a result of which the
persons constituting the Board of Directors as a result of such Preferred Stock
Placement reconstitution cease to be at least 50% of the directors of COMPANY,
provided, however, that any member of the Board of Directors of COMPANY whose
election or nomination for election by the shareholders of COMPANY was approved
by the vote of at least a majority of the individuals then constituting the
Board of Directors shall be considered to have been a member of the Board of
Directors immediately after the reconstitution of the Board following the
Preferred Stock Placement; or 4) a transaction or series of transactions by
which more than 50% of the voting equity securities of COMPANY come to be under
the control of a single entity or a group of entities acting in concert to
acquire control of COMPANY, but specifically excluding any change in ownership
that results from an initial public offering of COMPANY'S voting equity
securities that is authorized or approved by COMPANY's Board of Directors.
(iii) Other Acceleration of Vesting; Other Terms. The
acceleration of vesting provided for in the preceding paragraph is in addition
to, and not in lieu of, the acceleration of vesting of stock options provided
for under the Plan or the Option Agreement under the circumstances described in
the Plan or the Option
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Agreement. In addition, the Option Agreement shall 1) provide for incentive
stock options to the extent consistent with the terms of the options, 2) provide
for a ten-year term, 3) afford the option holder the maximum period permitted by
the Plan after termination of EXECUTIVE's employment to exercise options, 4)
afford the option holder the greatest latitude in manner of exercise permitted
by the Plan, 5) not grant COMPANY repurchase rights other than as set forth in
this Agreement, and 6) otherwise be in substantially the form of the standard
form of stock option agreement under the Plan, subject to the terms set forth in
this Agreement.
(iv) Protection against Dilution. The number of options granted to
EXECUTIVE under this Agreement shall be adjusted, if necessary, so that the
number is equal to 1.7% of COMPANY's outstanding Common Stock on a fully
diluted, as exercised and as converted basis, taking into account all rights and
options to acquire (by exercise, conversion or otherwise) shares of Common Stock
(the "Minimum Percentage"). The number of shares of Common Stock equaling the
Minimum Percentage shall be determined prior to, and without regard to,
COMPANY's issuance of any shares, options, warrants or other rights convertible
into shares of Common Stock in, or in connection with, either a) an initial
public offering of its Common Stock or other equity securities of COMPANY
convertible into Common Stock or b) a change in control as described in
subparagraph 3(d)(ii), above, including as to both of the foregoing events any
shares, options, warrants or other rights convertible into shares of Common
Stock that are issued as compensation to brokers, underwriters or other persons
involved, directly or indirectly, in arranging such public offering or change in
control. COMPANY represents to EXECUTIVE that the share options granted to the
Chief Executive Officer of COMPANY equal 3.4% of COMPANY's outstanding Common
Stock on a fully diluted, as exercised and as converted basis, taking into
account all rights and options to acquire (by exercise, conversion or otherwise)
shares of Common Stock. Any options granted to EXECUTIVE pursuant to this
subparagraph 3(c)(iv) shall be subject to the same provisions as those
originally granted under paragraph 3(c), above, except that the
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exercise price of any additional options granted to EXECUTIVE pursuant to this
provision shall be equal to the fair market value of the Common Stock of Company
at the date of the grant, taking into consideration the effect of the stock
issuance(s), if any, that trigger application of this provision.
(v) Additional Options. In the event that, prior to the initial public
offering of COMPANY's Common Stock, COMPANY's Board of Directors authorizes an
increase in the options granted to the executive officers of COMPANY generally,
EXECUTIVE shall receive additional options at least equal to 50% of such
additional options granted, if any, to the Chief Executive Officer of COMPANY,
such options to be subject to the vesting requirements and other terms and
conditions as the Board of Directors may apply. This subparagraph 3(d)(v) shall
not apply to any grant of additional options to EXECUTIVE under subparagraph
3(d)(iv), above; in that circumstance, those additional options shall have the
same terms as the share options originally granted under paragraph 3(c), above,
as though granted with those original options.
(vi) Securities Registration. COMPANY shall cause all of EXECUTIVE's
share options, and the issuance of shares upon exercise thereof, to be included
in an effective registration statement on Form S-8 (or any successor form) under
the Securities Act of 1933, as amended, within 180 days after the initial
registered public offering of COMPANY's. Common Stock or other equity securities
convertible into Common Stock.
4. Participation in Benefit Plans, Reimbursement of Business Expenses and
Moving Expenses.
(a) Benefit Plans. During the term of this Agreement, EXECUTIVE shall be
provided with medical insurance, vacation benefits, sick leave benefits, and
holidays
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which are not less than, and on terms no less favorable than, COMPANY provides
to its other executive employees.
(b) Reimbursement of Business Expenses. COMPANY shall reimburse
EXECUTIVE promptly for all expenditures made by him during the term of this
Agreement, which expenses are incurred to further the business and interests of
COMPANY, including, but not limited to, travel, entertainment, parking and
expenses incurred in connection with business meetings (including, but not
limited to, the dues and business related expenses of memberships at appropriate
business clubs, provided such memberships are approved in writing by the Chief
Executive Officer of COMPANY), provided such expenses are incurred and submitted
for reimbursement in accordance with the policies established by the Board of
Directors in effect as of the date the expenses are incurred.
(c) Moving Expenses. If EXECUTIVE relocates, COMPANY shall reimburse
EXECUTIVE for all actual relocation expenses, up to a maximum of $130,000.00
for EXECUTIVE's relocation to the San Diego area in accordance with the terms of
the Relocation Benefits Agreement, which Agreement is attached hereto as
Appendix A. Any amounts paid to EXECUTIVE to compensate him for taxes on amounts
received by him hereunder which are not tax deductible shall be subject to, not
in addition to, the limit of $130,000 set forth in the preceding sentence.
(d) Legal Expenses. COMPANY will reimburse EXECUTIVE for actual legal
fees and expenses incurred by him in connection with the review and negotiation
of this Agreement, up to a maximum of $2,000.
(e) Indemnification. EXECUTIVE shall be entitled to indemnification and
advancement of expenses to the fullest extent provided, in COMPANY's bylaws or
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otherwise, to any other director or executive officer of COMPANY, unless
prohibited by law. EXECUTIVE shall also be entitled to coverage under each
directors' and officers' liability insurance policy, if any, maintained by or on
behalf COMPANY's directors and officers.
5. Termination of Employment.
(a) Automatic Termination. This Agreement will automatically terminate
in the event of EXECUTIVE's death, or EXECUTIVE's disability which has prevented
EXECUTIVE from performing substantially all of his duties and responsibilities
for a continuous period of ninety (90) days. COMPANY shall have no further
obligations to EXECUTIVE or his estate upon such automatic termination, except
(i) to honor the exercise of any stock options that have vested prior to or as
of the date of such termination, subject to the applicable conditions of the
Plan and (ii) as provided by law or under the terms of any applicable benefit
plan in which EXECUTIVE participated immediately prior to the termination of his
employment.
(b) Termination other than for Cause. COMPANY may terminate or elect not
to renew this Agreement other than for cause at any time, provided it gives at
least ten (10) days' prior written notice to EXECUTIVE of such termination or
non-renewal. In the event that COMPANY terminates EXECUTIVE's employment under
this Agreement other than for cause during the first year of this Agreement or
COMPANY elects not to renew this Agreement for a second year, COMPANY shall,
subject to the conditions set forth in paragraph 6(b), below, continue to pay
EXECUTIVE his base salary and continue to provide EXECUTIVE (and his covered
dependents, if any), at COMPANY's
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expense, medical insurance or benefits, in each case, at the level in effect at
the time COMPANY gives EXECUTIVE notice of termination or non-renewal, for a
period of 18 months following the effective date of the termination or
non-renewal. If COMPANY terminates this Agreement without cause after EXECUTIVE
has reached his second anniversary date of employment or fails to renew this
Agreement for a third or subsequent year, COMPANY shall, subject to the
conditions set forth in paragraph 6(b), below, continue to pay EXECUTIVE his
base salary, and continue to provide EXECUTIVE (and his covered dependents, if
any), at COMPANY's expense, medical insurance or benefits, in each case, at the
level in effect at the time COMPANY gives EXECUTIVE notice of termination or
non-renewal, for a period of twelve (12) months following the effective date of
termination or non-renewal. In addition to the foregoing salary and benefits
continuation, EXECUTIVE shall also receive any unpaid salary and accrued (but
unused) vacation through the effective date of termination of employment or
non-renewal, reimbursement for any expenses incurred by him prior to the
effective date of his termination that are otherwise subject to reimbursement
under paragraph 3(b), above, and any accrued but unpaid benefits to which
EXECUTIVE is then entitled under the terms of COMPANY's benefit plans and
policies in which EXECUTIVE is enrolled, to be payable in accordance with the
terms of such plans and policies. All salary continuation and other termination
benefits paid hereunder shall be less any applicable payroll and withholding
taxes or other legally required deductions. As a condition to his receipt of any
salary continuation provided for in this paragraph, EXECUTIVE must first execute
the Waiver and Release that is attached to this Agreement as Appendix B. The
salary continuation for EXECUTIVE shall be paid in the same manner and at the
same intervals as if EXECUTIVE continued his employment during the applicable
period.
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COMPANY reserves the right to pay the applicable salary continuation amount in a
lump sum, discounted to present value using a discount factor of 6%. In the
event of any termination or non-renewal under this paragraph, EXECUTIVE shall
have no obligation to mitigate his damages or to seek other employment as a
condition to receiving his salary continuation and other termination benefits,
and (except as provided for in paragraphs 6(b), below), there shall be no
deduction or offset against amounts due to EXECUTIVE hereunder on account of any
remuneration from any subsequent employment (or self-employment) that he may
obtain.
(c) Termination for Cause. Notwithstanding the provisions of
sub-paragraph 5(b), COMPANY may terminate EXECUTIVE's employment for cause. For
purposes of this Agreement, COMPANY shall have "cause" to terminate EXECUTIVE's
employment in the event of any of the following:
(i) conviction of EXECUTIVE for any felony or any crime, or entry of
a plea of nolo contendere, involving moral turpitude or
dishonesty;
(ii) EXECUTIVE's participation in a fraud or act of dishonesty
against COMPANY;
(iii) EXECUTIVE's willful misfeasance or nonfeasance of duty that
materially injures the reputation, business or business
relationships of COMPANY or any of its officers, directors or
affiliates;
(iv) a material breach by EXECUTIVE of any term of this Agreement or
the Proprietary Information and Inventions Agreement that
EXECUTIVE has entered into with the Company, or any of the
Company's written policies and procedures; or
(v) conduct by EXECUTIVE that in the good faith and reasonable
determination of the COMPANY's Board of Directors demonstrates
gross unfitness to
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serve. Physical of mental disability or conduct resulting from
physical or mental disability of EXECUTIVE shall not constitute
"cause."
In the event EXECUTIVE's employment is terminated for cause, he will not be
entitled to receive any severance pay or any other severance compensation,
except that EXECUTIVE shall be entitled to receive unpaid salary and accrued
(but unused) vacation through the effective date of termination, reimbursement
for any expenses incurred by him prior to the effective date of his termination
that are otherwise subject to reimbursement under paragraph 3(b), above, and any
accrued but unpaid benefits to which EXECUTIVE is then entitled under the terms
of COMPANY's benefit plans and policies in which EXECUTIVE is enrolled, to be
payable in accordance with the terms of such plans and policies.
(d) Resignation. EXECUTIVE retains the right to resign or otherwise
voluntarily terminate his employment with COMPANY upon ninety (90) days' written
notice to the Chief Executive Officer. In the event EXECUTIVE resigns or
otherwise voluntarily terminates his employment with COMPANY, EXECUTIVE shall
not be entitled to any compensation, including benefits, beyond the effective
date of his resignation, except that EXECUTIVE shall be entitled to receive
salary and accrued vacation through the effective date of termination of
employment, reimbursement for any expenses incurred by him prior to the
effective date of his termination that are otherwise subject to reimbursement
under paragraph 3(b), above, and any accrued but unpaid benefits to which
EXECUTIVE is then entitled under the terms of COMPANY's benefit plans and
policies in which EXECUTIVE is enrolled, to be payable in accordance with the
terms of such plans and policies.
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(e) Stock Options. Subject to the previsions of paragraph 3(c), above,
only the shares subject to the stock options granted to EXECUTIVE under this
Agreement that have vested up to the date of the termination of or his
resignation from his employment under this Agreement may be exercised by
EXECUTIVE, such exercise to be subject to the conditions set forth in the Plan,
provided, however, that in the event of termination by COMPANY other than for
cause or any annual non-renewal by COMPANY, those options that would have vested
over the twelve (12) months subsequent to the termination had EXECUTIVE's
employment continued will be deemed to have vested as of the date of the
termination. Any stock options that are unvested (and not deemed vested under
some provision of this Agreement, the Plan or the Option Agreement as of the
date of EXECUTIVE's termination) shall be null and void.
(f) No Restriction on COBRA Rights. Nothing in this paragraph 5 shall be
deemed to impair or limit any of EXECUTIVE's rights under the Consolidated
Omnibus Benefits Reconciliation Act.
(g) Deemed Termination. EXECUTIVE may elect to deem (i) any material
decrease in his authority or responsibility; (ii) elimination of his reporting
directly to the Chief Executive Officer of COMPANY; or (iii) any obligation that
EXECUTIVE relocate his residence away from Tulsa, Oklahoma as a condition of his
continuing his employment with COMPANY (in any case, whether or not Executive's
position is changed) to be a termination of EXECUTIVE's employment by COMPANY
other than for cause for all purposes under this Agreement, provided EXECUTIVE
so notifies the Chief Executive Officer of COMPANY of his election to do so
within ninety
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(90) days of EXECUTIVE's receipt of notice from COMPANY or other
knowledge of EXECUTIVE of such change or event.
6. Noncompetition, Confidentiality, Freedom to Enter into and Perform and
Conflicts of Interest.
(a) Confidential Information. EXECUTIVE agrees and understands that, due
to the nature of his position with COMPANY, he will gain possession of
confidential information about COMPANY and the way it conducts its business. In
conjunction with the execution of, and as part of the consideration given for,
this Agreement, EXECUTIVE will execute the Proprietary Information and
Inventions Agreement that is attached to this Agreement as Appendix C.
EXECUTIVE's duties and obligations under Appendix C shall survive termination of
his employment with COMPANY. EXECUTIVE acknowledges that a remedy at law for any
breach or overtly threatened breach by him of the provisions of Appendix C would
be inadequate to protect COMPANY against the consequences of such breach, and he
therefore agrees that the COMPANY shall be entitled to injunctive relief in case
of any such breach or overtly threatened breach.
(b) Restrictive Covenant. During any period that EXECUTIVE is receiving
severance compensation from COMPANY following the termination date of
EXECUTIVE's employment under this Agreement, EXECUTIVE shall not, without first
obtaining the prior written approval of COMPANY, directly or indirectly engage
in any activities in competition with COMPANY, or become an officer, director or
employee of, or consultant to, a business engaged in competition with COMPANY's
current business (specifically, any person or entity whose principal business is
promoting and facilitating via the Internet transactions between third parties
for the wholesale sale and distribution of goods, equipment and services in the
healthcare field)
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and such other business or businesses in which COMPANY comes to be actively
engaged during the term of EXECUTIVE'S employment under this Agreement. In the
event that EXECUTIVE undertakes any such activities without written permission
from COMPANY, COMPANY'S obligation to pay EXECUTIVE severance compensation shall
cease. For purposes of this Agreement, "healthcare field" means the provision of
goods and/or services to any person, firm, corporation, business, partnership,
limited liability company, association or other entity involved directly in the
healthcare industry and/or to any person with respect to their medical or
healthcare needs, including, without limitation, hospital, surgical centers,
medical clinics, outpatient facilities, medical groups, managed care
organizations, health maintenance organizations, medical or health related
associations, nursing homes, extended care facilities, doctors, physicians,
dentists, chiropractors, veterinarians and other healthcare providers,
practitioners, suppliers, patients or any other person providing or receiving
healthcare service of any nature whatsoever.
(c) Freedom to Enter into and Perform this Agreement. EXECUTIVE
represents and warrants to Company that he is subject to no restrictions, either
by virtue of any agreement made by him or for his benefit, or by operation of
law, that would prohibit, prevent or interfere with in any way his entering
into, or his performing fully and without restriction, his obligations under
this Agreement, or which would render COMPANY liable to a third party as a
result of EXECUTIVE's entering into or performing his obligations under this
Agreement.
(d) Conflicts of Interest. During EXECUTIVE's employment under this
Agreement EXECUTIVE agrees not to acquire, assume or participate in, directly or
indirectly, any position, investment or interest known by him to be adverse or
antagonistic to COMPANY, its business or prospects, financial or otherwise.
However, EXECUTIVE may own, as a passive investor only,
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securities of any publicly traded companies, provided his beneficial ownership
of the stock of any one such corporation does not exceed 12.5% of such
corporation's voting stock.
(e) Non-interference. While employed by COMPANY, and for a period of one
(1) year immediately following the termination of his employment, EXECUTIVE will
not interfere with the business of COMPANY by soliciting, attempting to solicit,
inducing or otherwise deliberately causing any employee of COMPANY to terminate
his or her employment in order to become an employee, consultant or contractor
to or for any competitor of COMPANY.
7. Notices.
For purposes of this Agreement, all notices and other communications
required or permitted by this Agreement shall be in writing and shall be deemed
to have been duly given when delivered in person or by courier or on the earlier
of delivery or the fourth business day after mailing by United States Registered
or Certified Mail, return receipt requested, postage prepaid, addressed as
follows:
If to EXECUTIVE: Xx. Xxxxx X. Xxxxxx
0000 Xxxx 00xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
If to COMPANY: xxxxxxx.xxx, Inc.
0000 Xxxxxxxx Xxxx, Xxxxx 000
XxXxxx, Xxxxxxxxxx 00000
Attn: The Chief Executive Officer
or at such other address as the addressee may have furnished to the other party
in writing subsequent to the execution of this Agreement or, in the case of
EXECUTIVE, to any other permanent address listed for him in COMPANY's records,
or, in the case of COMPANY, to the
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address known by EXECUTIVE to be where the office of the Chief Executive Officer
of COMPANY is located.
8. Modifications; Waivers; Applicable Law.
No provision in this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in a writing, signed
by EXECUTIVE and by the Chief Executive Officer of COMPANY. This Agreement and
the employment relationship hereunder shall be governed by, construed in
accordance with and enforced under the laws of the State of California and
applicable federal law.
9. Severability.
If any provision of this Agreement is determined to be invalid or is in
any way modified by any governmental agency, tribunal, or court of competent
jurisdiction, such determination shall be considered as a separate, distinct,
and independent part of this Agreement and shall not affect the validity or
enforceability of any of the remaining provisions of this Agreement.
10. Successor Rights and Assignment.
This Agreement shall bind, inure to the benefit of and be enforceable by
EXECUTIVE's personal or legal representatives, executors, administrators,
successors, heirs, distributees, and legatees. The rights and obligations of
COMPANY under this Agreement may be assigned by COMPANY as part of the
assignment or transfer (including, without limitation, by merger or other event
resulting in such assignment by operation of law) of all or substantially all of
COMPANY'S assets and business, provided that at the time of such assignment the
assignee has the ability to meet the obligations to EXECUTIVE set forth in this
Agreement, in which event this Agreement shall be binding upon, and inure to the
benefit of, the person(s) or entity(ies) to
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whom it is assigned. EXECUTIVE may not assign his duties hereunder and he may
not assign any of his rights hereunder without the written consent of COMPANY.
IN WITNESS WHEREOF, EXECUTIVE and COMPANY have signed this Agreement to
be dated and effective on May 26, 1999.
EXECUTIVE:
Dated: /s/ XXXXX X. XXXXXX
XXXXXXX.XXX, INC.
Dated: By: /s/ XXXXXX X. XXXXXX
Its: CEO
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FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
THIS FIRST AMENDMENT TO EMPLOYMENT AGREEMENT (this "Amendment") is
entered into as of December 28, 1999 (the "Effective Date"), by and between
XXXXXXX.XXX, INC., a Delaware corporation (the "Company") and XXXXX X. XXXXXX
("Executive").
WHEREAS, the Company and Executive previously entered into an
Employment Agreement, dated May 26, 1999 (the "Employment Agreement"); and
WHEREAS, the parties desire to amend the Employment Agreement as set
forth in this Amendment.
NOW THEREFORE, in consideration of the mutual benefits contained
herein, the parties, intending to be legally bound, hereby agree as follows:
1. Except as otherwise defined herein, capitalized terms used but not
defined herein shall have the meanings given to them in the Employment
Agreement.
2. The Employment Agreement is hereby amended as follows:
(a) Section 3(c)(iv) ("Protection Against Dilution") is
deleted in its entirety. In addition, in consideration of such deletion the
Company shall grant to Executive a fully vested, immediately exercisable
incentive stock option to purchase 75,000 shares of Common Stock under the
Company's 1999 Omnibus Equity Plan.
3. For purposes of clarification, the parties agree that the vesting
schedule of the stock option granted to Executive by the Company on November 17,
1999 is as follows:
25% of the shares (or 8,125 shares) are fully vested and
immediately exercisable upon grant (provided that the Company
will have the right to repurchase from Xx. Xxxxxx if his
employment is terminated for cause or if he voluntarily
terminates his employment, within his first year of
employment, as more fully described in Section 3(c)(i) of the
Agreement, and the remaining shares subject to the option will
vest in equal monthly portions over 36 months beginning on
June 26, 2000.
4. This Amendment shall be governed by and construed in accordance with
the laws of the State of California as such laws are applied to contracts
entered into and performed entirely within California by California residents.
5. This Amendment may be signed in any number of counterparts, each of
which will be deemed an original, and all of which taken together shall
constitute one and the same instrument.
6. Except as specifically amended hereby, the Employment Agreement
shall remain in full force and effect. This Amendment together with the
Employment Agreement constitutes the entire understanding and agreement of the
parties hereto with respect to the subject matter
1.
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hereof and thereof and supersedes all prior agreements or understandings,
inducements or conditions, express or implied, written or oral, between the
parties with respect to the subject matter hereof or thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above written.
XXXXXXX.XXX, INC.
/s/ XXXXX X. XXXXXX
---------------------- By: /s/ XXXXXX X. XXXXXX
XXXXX X. XXXXXX --------------------------------
Name: Xxxxxx X. Xxxxxx
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Title: President & Chief Executive
Officer
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2.
