Exhibit 10.1
April 30, 2001
Xxxxxxxx Xxxxxx
Dear Xxxxxxxx:
XxxxXxxx.xxx, Inc. (the "Company") makes the following offer to you in
recognition of your past service to the Company and your agreement to act as the
President and Chief Executive Officer of the Company:
1. The Company shall pay you a monthly salary of fourteen
thousand five hundred eighty-three and 33/100 dollars
($14,583.33).
2. The Company shall continue to provide to you all of the
benefits that you currently receive as an employee of the
Company for so long as the Company's benefit plans remain
available to the Company, and the Company shall use
commercially reasonable efforts to continue such benefit plans
for the duration of your employment.
3. You hereby agree that the Company has no obligations to you
for compensation or benefits other than for the compensation
and benefits that are described herein. You hereby waive all
claims against the Company for compensation and benefits other
than those claims relating to the compensation and the
benefits that the Company has agreed to provide to you herein.
4. You agree to act as the President and Chief Executive Officer
for a term (the "Term") of thirty (30) days, after which your
employment as President and Chief Executive Officer will be
at-will. You agree to serve on the Board of Directors of the
Company for so long as you remain employed by the Company in
any capacity.
5. The Company will continue to indemnify you as a director and
executive officer of the Company consistent with the Company's
by-laws. The Company agrees to make its best efforts to cause
the Company's Certificate of Incorporation to be amended to
add the language contained in EXHIBIT A attached hereto. The
Company shall make all commercially reasonable efforts to
obtain director and officer insurance. The Company shall not
be obligated to purchase such insurance other than at
commercially reasonable rates. The Company shall purchase the
extension of the current director and officer insurance
policy.
6. The Company shall pay you on the first business day following
the signing of the Letter of Intent, an amount of one hundred
fifty thousand dollars ($150,000). In consideration therefor,
you hereby waive all claims against the Company for
compensation and benefits other than those claims relating to
the compensation and the benefits that the Company has agreed
to provide to you herein.
7. The Company will cancel or otherwise terminate that certain
non-recourse promissory note (the "Note") from you to the
Company, dated June 22, 1996, in the principal amount of two
hundred fifty-five thousand nine hundred twenty dollars
($255,920), plus any accrued interest. You hereby agree that
all of the shares that secure the Note will be delivered to
the Company and cancelled in consideration of the cancellation
or termination of said Note. The Company will endeavor in good
faith to structure this transaction to maximize the tax
efficiencies for you so long as they do not adversely affect
the Company.
8. Consistent with the recommendations of the Company's legal
advisors and with the consent of all of the Company's
preferred shareholders, as required, the Company will
establish an executive incentive compensation plan that will
provide a mutually agreeable equity or cash incentive to
operate the Company, or sell, liquidate or develop the value
of the assets of the Company at their maximum value.
9. The Company will use its reasonable best efforts to obtain all
necessary consents from creditors, preferred shareholders or
any other parties to which it may be bound, in order to
effectuate the terms hereof.
10. You hereby acknowledge that you are party to a non-competition
and non-disclosure agreement with the Company and that you
continue to remain bound by that agreement.
11. As President and Chief Executive Officer, you will have
day-to-day control of the Company, subject to the supervision
of the Company's Board of Directors.
If you agree to the terms stated above, please sign below.
/s/ XXXXXXXX XXXXXX
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Xxxxxxxx Xxxxxx
XXXXXXXX.XXX, INC.
/s/ XXXXX X. XXXXXXXX
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By: Xxxxx X. Xxxxxxxx
President and Chief Executive Officer
