Exhibit 10(a)
EMPLOYMENT AGREEMENT
AGREEMENT, made this 25th day of April, 2000, by and between
XxxXxxx.xxx, Ltd, a Delaware corporation (the "Company") and Xxxxxxx X.
Xxxxxxxxx ("Executive").
RECITALS
In order to induce Executive to serve as the President and Chief
Executive Officer of the Company's Enterprise Software subsidiary and Executive
Vice President, Strategy and Planning of the Company, the Company desires to
provide Executive with compensation and other benefits on the terms and
conditions set forth in this Agreement.
Executive is willing to accept such employment and perform services for
the Company, on the terms and conditions hereinafter set forth. It is therefore
hereby agreed by and between the parties as follows:
1. EMPLOYMENT.
1.1 Subject to the terms and conditions of this Agreement (including
Section 2), the Company agrees to employ Executive during the term hereof as the
President and Chief Executive Officer of the Company's Enterprise Software
subsidiary. In his capacity as the President and Chief Executive Officer of the
Company's Enterprise Software subsidiary of the Company, Executive shall report
to the Company's Chief Executive Officer ("CEO") and shall have the powers,
responsibilities and authorities as are reasonably assigned by the CEO from time
to time consistent with Executive's title and position. The parties anticipate
that Executive will be the primary officer of the Company developing and
implementing an integration plan for the enterprise software operations of the
Company and Resumix, Inc. following the acquisition
of Resumix, Inc. by the Company (the "Acquisition"). The parties also anticipate
that the CEO and Executive will jointly develop in good faith, promptly
following the Acquisition, a plan to recruit and train a professional software
executive to replace Executive as the President and Chief Executive Officer of
the Company's Enterprise Software subsidiary with a view to conducting a
retained search for such a person to be completed within 3-6 months following
the acquisition and to complete the hand-off of Executive's responsibilities to
such recruit within 3-6 months following the retention of such recruit (such
period of software integration and management transition being referred to
herein as the "Transition Period"). Following the Transition Period, the
Executive shall continue to serve as a non-executive Chairman of the Board of
such subsidiary (or in a similar capacity if the business is not operated in a
standalone subsidiary). The Company will cause Resumix, Inc. to issue to the
Executive 150,000 share option with a 4-year vesting: 50,000 after one year and
the balance monthly in equal installments for the subsequent three years.
Executive is also agreeable to a voluntary lock-up of his shares such that he
agrees not to sell more than 30% of his stock position (the "30% Position") in
the Company for the first six months following the date of the Acquisition,
another 10% during the next six months and the balance of 60% may be sold
commencing upon completion of one year following the Acquisition (the
"Anniversary Date"), whichever is earlier, if Executive remains employed through
such time. However, if Executive voluntarily resigns his employment with the
Company (other than for Good Reason, death or disability as set forth in Section
6 below) prior to completion of the Anniversary Date, then all of his then
unsold stock position, other than the 30% Position, will be locked up for up for
18 months following the Acquisition.
1.2 Subject to the terms and conditions of this Agreement, the Company
also agrees to employ Executive during the term hereof as the Executive Vice
President, Strategy and Planning,
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of the Company. In his capacity as the Executive Vice President, Executive shall
report to the CEO and shall have the powers, responsibilities and authorities as
are reasonably assigned by the CEO from time to time consistent with Executive's
title and position, focusing on identification of growth areas for the Company
either internally or through acquisitions and supervising the development and
implementation of related growth plans.
1.3 The parties anticipate that during the Transition Period, the CEO,
Executive and the other most senior executives of the Company in charge of
separate business units or functions of the Company will work collectively as a
team to define and implement an optimal management structure for the Company to
support its anticipated growth plans. If as part of this process, the CEO and
Executive shall mutually define (i) an appropriate senior management position
suitable for Executive, either as the most senior planning officer for the
Company or as Chief Executive Officer of a meaningful business unit, and (ii) a
commensurate equity incentive package, then Executive's employment by the
Company shall continue beyond the Transition Period. The Company will also use
its best efforts to nominate Executive to the Company's Board of Directors as
part of the continuation of Executive's employment with the Company.
1.4 Subject to the terms and conditions of this Agreement, Executive
hereby accepts employment with the Company in the positions set forth above
commencing on the closing of the Acquisition and agrees to devote his full
working time and efforts, to the best of his ability, experience and talent, to
the performance of services, duties and responsibilities in connection
therewith.
1.5 Nothing in this Agreement shall preclude Executive from engaging,
so long as in the reasonable determination of the Board, such activities do not
interfere with his duties and responsibilities hereunder, in charitable and
community affairs, from managing any passive
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investment made by him in publicly traded equity securities or other property
(provided that no such investment may exceed 1% of the equity of any entity if
publicly traded or 5% if privately held, without the prior approval of the
Board) or from serving, subject to the prior approval of the Board, as a member
of boards of directors or as a trustee of any other corporation, association or
entity. For purposes of the preceding sentence, any approval of the Board
required therein shall not be unreasonably withheld.
2. TERM OF EMPLOYMENT. Executive's term of employment under this
Agreement shall commence on the closing of the Acquisition and, subject to the
terms hereof, shall terminate on the earliest of (i) the third anniversary of
this Agreement (the "Termination Date") or (ii) the termination of Executive's
employment pursuant to this Agreement (the period from the Effective Date until
the termination of this Agreement shall be the "Term") or (iii) failure by the
CEO and Executive to define in good faith by mutual agreement a new position for
Executive during the Transition Period. If the Acquisition does not occur within
the timetable contemplated in the agreement relating to the Acquisition, this
Agreement shall terminate and be void and of no further force or effect.
3. COMPENSATION.
3.1 SALARY. The Company shall pay Executive a base salary ("Base
Salary") at the rate of $250,000 per annum during the Term. Base Salary shall be
payable in accordance with the ordinary payroll practices of the Company. Any
increase in Base Salary shall be in the sole discretion of the Board and, as so
increased, shall constitute "Base Salary" hereunder; provided, however, that
failure by the Board to treat Executive fairly relative to the other executive
officers of the Company shall be deemed to be a breach of this Agreement by the
Company.
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3.2 COMPENSATION PLANS AND PROGRAMS. Executive shall be eligible to
participate in any compensation plan or program maintained by the Company and
generally made available to other executive officers of the Company, on terms
comparable to those applicable to such other executive officers.
4. EMPLOYEE BENEFITS.
4.1 EMPLOYEE BENEFIT PROGRAMS, PLANS AND PRACTICES. The Company shall
provide Executive during the term of his employment hereunder with coverage
under all employee pension and welfare benefit programs, plans and practices
(commensurate with his position in the Company and to the extent permitted under
any employee benefit plan) in accordance with the terms thereof, which the
Company makes available to any of its executive officers.
4.2 VACATION. Executive shall be entitled to vacation, which shall be
taken at such times as are consistent with Executive's responsibilities
hereunder, in accordance with the Company's vacation policy.
5. EXPENSES. Executive is authorized to incur reasonable expenses in
carrying out his duties and responsibilities under this Agreement, including,
without limitation, expenses for travel and similar items related to such duties
and responsibilities. The Company will reimburse Executive for all such expenses
upon presentation by Executive, from time to time, of accounts of such
expenditures (appropriately itemized and approved consistent with the Company's
policy).
6. TERMINATION OF EMPLOYMENT.
6.1 TERMINATION NOT FOR CAUSE OF FOR GOOD REASON. (a) The Company may
terminate Executive's employment at any time for any reason. If Executive's
employment is terminated prior to the Termination Date (i) by the Company other
than for Cause (as defined in Section 6.4
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hereof) or (ii) by Executive for Good Reason (as defined in Section 6.4 hereof)
or (iii) as a result of Executive's death or Permanent Disability (as defined in
Section 6.2 hereof), Executive shall receive such payments, if any, under
applicable plans or programs, including but not limited to those referred to in
Section 3.2 hereof, to which he is entitled pursuant to the terms of such plans
or programs. In addition, Executive shall be entitled to receive an amount (the
"Termination Amount") in lieu of any Bonus in respect of all or any portion of
the fiscal year in which such termination occurs and any other cash compensation
(other than the Vacation Payment and the Compensation Payment referred to
below), which Termination Amount shall be payable in a lump sum on the
Termination Date, any unvested shares or options shall immediately vest in full
on such Termination Date and the lock-up provision set forth in Section 1.1
above and the non-competition provisions set forth in Section 11 below shall
terminate effective on the Termination Date. The Termination Amount shall
consist of an amount equal to Executive's annual Base Salary at the then current
annual rate. In addition, Executive shall be entitled to receive a cash lump sum
payment in respect of accrued but unused vacation days in accordance with the
Company's vacation policy (the "Vacation Payment") and to compensation earned
but not yet paid (the "Compensation Payment").
(b) The Vacation Payment and the Compensation Payment shall be paid by
the Company to Executive within five (5) days after the termination of
Executive's employment by check payable to the order of Executive or by wire
transfer to an account specified by Executive.
6.2 PERMANENT DISABILITY. If the Executive becomes totally and
permanently disabled (as defined in the Company's Long-Term Disability Benefit
Plan applicable to senior executive officers as in effect on the date hereof)
("Permanent Disability"), the Company or Executive may
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terminate Executive's employment on written notice thereof, and Executive shall
receive or commence receiving, as soon as practicable:
(i) amounts payable pursuant to the terms of a disability
insurance policy or similar arrangement which the Company maintains
during the term hereof;
(ii) the Vacation Payment and the Compensation Payment; and
(iii) such payments under applicable plans or programs, including
but not limited to those referred to in Section 3.2 hereof, to which he
is entitled pursuant to the terms of such plans or programs.
6.3 DEATH. In the event of Executive's death during the term of his
employment hereunder, Executive's estate or designated beneficiaries shall
receive or commence receiving, as soon as practicable:
(i) any death benefits provided under the employee benefit
programs, plans and practices referred to in Section 4.1 hereof, in
accordance with their terms;
(ii) the Vacation Payment and the Compensation Payment; and
(iii) such payments under applicable plans or programs, including
but not limited to those referred to in Section 3.2 hereof, to which
Executive's estate or designated beneficiaries are entitled pursuant to
the terms of such plans or programs.
6.4 VOLUNTARY TERMINATION BY EXECUTIVE OTHER THAN FOR GOOD REASON;
DISCHARGE FOR CAUSE. (a) The Company shall have the right to terminate the
employment of Executive for Cause. In the event that Executive's employment is
terminated (i) by the Company for Cause, as hereinafter defined, or (ii) by
Executive other than (A) for Good Reason or (B) as a result of the Executive's
Permanent Disability or death, prior to the Termination Date, or (iii) for
failure by the CEO and Executive to define in good faith by mutual agreement a
new position for Executive during the Transition Period, Executive shall only be
entitled to receive the Compensation Payment and the Vacation Payment. Executive
shall not be entitled, among other things, to the
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payment of any Bonus in respect of all or any portion of the fiscal year in
which such termination occurs. After the termination of Executive's employment
under this Section 6.4, the obligations of the Company under this Agreement to
make any further payments, or provide any benefits specified herein, to
Executive shall thereupon cease and terminate.
(b) As used herein, the term "Cause" shall be limited to (i) willful
malfeasance or willful misconduct by Executive in connection with his employment
, (ii) continuing refusal by Executive to perform his duties hereunder or any
reasonable and lawful direction of CEO as required under Sections 1.1 and 1.2,
after notice of any such refusal to perform such duties or direction was given
to Executive, and Executive was a reasonable opportunity to cure such
non-performance, (iii) any breach of the non-competition provisions of Section
11 of this Agreement by Executive or any other material breach of this Agreement
by Executive (including without limitation the other provisions of Section 11
hereof) after notice of any such breach (other than a breach of the provisions
of Section 11 of this Agreement) was given to Executive, and Executive was given
a reasonable opportunity to cure such breach or (iv) the commission of (or plea
of no contest by) Executive of (A) any felony or (B) a misdemeanor involving
moral turpitude.
(c) As used herein, the term "Good Reason" (which shall give rise to
Executive's right of resignation treated for the purposes of this Agreement as
termination of Executive by the Company other than for Cause) shall be limited
to (i) relocation of the principal office of the Executive outside of the area
of the San Francisco peninsula bounded by the cities of San Francisco and San
Xxxx, (ii) demotion or other diminution of duties of the Executive, whether or
not a change of titles occurs, (iii) any material breach of this Agreement by
the Company, (iv) the reduction in any salary or benefit payable to Executive
either in absolute value or in relation to those payable to the other most
senior executives of the Company similarly situated or (v) the
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cessation of Xxxxxxx Xxxxxxx acting as the Chief Executive Officer of the
Company other than as a result of his death or disability.
7. NOTICES. All notices or communications hereunder shall be in
writing, addressed as follows:
To the Company:
XxxXxxx.xxx, Ltd.
00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: General Counsel
with a copy to:
Resumix, Inc.
000 Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Chief Executive Officer
To Executive:
Xxxxx Xxxxxxxxx
00000 Xxxxxx Xxxx
Xxx Xxxxx Xxxxx, XX 00000
with a copy to:
Xxxxxx Xxxxxxx
00 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Any such notice or communication shall be delivered by hand or by courier or
sent certified or registered mail, return receipt requested, postage prepaid,
addressed as above (or to such other address as such party may designate in a
notice duly delivered as described above), and the third business day after the
actual date of mailing shall constitute the time at which notice was given.
8. SEPARABILITY; LEGAL FEES. If any provision of this Agreement shall
be declared to be invalid or unenforceable, in whole or in part, such invalidity
or unenforceability shall not affect the remaining provisions hereof which shall
remain in full force and effect. Each party shall bear
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the costs of any legal fees and other fees and expenses which may be incurred in
respect of enforcing its respective rights under this Agreement.
9. ASSIGNMENT. This contract shall be binding upon and inure to the
benefit of the heirs and representatives of Executive and the assigns and
successors of the Company, but neither this Agreement nor any rights or
obligations hereunder shall be assignable or otherwise subject to hypothecation
by Executive (except by will or by operation of the laws of intestate
succession) or by the Company, except that the Company may assign this Agreement
to XxxXxxx.xxx Ltd ("HJ") or any successor (whether by merger, purchase or
otherwise) to all or substantially all of the stock, assets or business of the
Company, if such successor expressly agrees to assume the obligations of the
Company hereunder.
10. AMENDMENT. This Agreement may only be amended by written agreement
of the parties hereto.
11. NONDISCLOSURE OF CONFIDENTIAL INFORMATION; NON-DISPARAGEMENT;
NON-COMPETITION.
(a) Executive shall not, without the prior written consent of the
Company, use, divulge, disclose or make accessible to any other person, firm,
partnership, corporation or other entity any Confidential Information (as
defined below) pertaining to the business of the Company or any of its
affiliates, except (i) while employed by the Company, in the business of and for
the benefit of the Company, or (ii) when required to do so by a court of
competent jurisdiction, by any governmental agency having supervisory authority
over the business of the Company, or by any administrative body or legislative
body (including a committee thereof) with jurisdiction to order Executive to
divulge, disclose or make accessible such information. For purposes of this
Section 11(a), "Confidential Information" shall mean non-public information
concerning the financial data, strategic business plans, product development (or
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other proprietary product data), customer lists, marketing plans and other
non-public, proprietary and confidential information of the Company or its
affiliates (the "Restricted Group") or clients, customers, partners, prospective
clients, prospective customers, or prospective partners that, in any case, is
not otherwise available to the public (other than by Executive's breach of the
terms hereof).
(b) During the period of his employment hereunder and for a period
of one (1) year thereafter, Executive agrees that, without the prior written
consent of the Company, (A) he will not, directly or indirectly, either as
principal, manager, agent, consultant, officer, stockholder, partner, investor,
lender or employee or in any other capacity, carry on, be engaged in or have any
financial interest in, any business which is in competition with any business of
Resumix, Inc. or HJ, and (B) he shall not, on his own behalf or on behalf of any
person, firm or company, directly or indirectly, solicit (other than
solicitations made by means of general solicitations of employment not directed
specifically to employees of the Restricted Group), offer employment to or hire
any person who has been employed by the Restricted Group at any time during the
12 months immediately preceding such solicitation, and (C) he shall not, on his
own behalf or on behalf of any person, firm or company, solicit, call upon, or
otherwise communicate in any way, with any client, customer, prospective client
or prospective customer of the Company or of any member of the Restricted Group
for the purpose of causing or of attempting to cause any such person to purchase
products sold or services rendered by Resumix, Inc. from any person other than
the Company or such member of the Restricted Group.
(c) Each of the Company and Executive agrees that such party will
not, directly or indirectly, individually or in concert with others, engage in
any conduct or make any statement that (i) in the case of Executive, is likely
to have the effect of undermining or
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disparaging the reputation of the Company or any member of the Restricted Group,
or their good will, products, or business opportunities, or that is likely to
have the effect of undermining or disparaging the reputation of any officer,
director, agent, representative or employee, past or present, of the Company or
any member of the Restricted Group or (ii) in the case of the Company, is likely
to have the effect of undermining or disparaging the reputation of Executive.
(d) For purposes of this Section 11, a business shall be deemed to
be in competition with Resumix, Inc. if it is principally involved in the
purchase, sale or other dealing in any property or the rendering of any service
purchased, sold, dealt in or rendered by Resumix, Inc. or HJ during the Term as
a material part of the business of Resumix, Inc. or HJ within the same
geographic area in which Resumix, Inc. effects such purchases, sales or dealings
or renders such services. Nothing in this Section 11 shall be construed so as to
preclude Executive from investing in any publicly or privately held company,
provided Executive's beneficial ownership of any class of such company's
securities does not exceed 1% of the outstanding securities of such class if
publicly traded or 5% if privately held.
(e) Executive and the Company agree that this covenant not to
compete is a reasonable covenant under the circumstances, and further agree that
if in the opinion of any court of competent jurisdiction such restraint is not
reasonable in any respect, such court shall have the right, power and authority
to excise or modify such provision or provisions of this covenant as to the
court shall appear not reasonable and to enforce the remainder of the covenant
as so amended. Executive agrees that any breach of the covenants contained in
this Section 11 would irreparably injure the Company. Accordingly, Executive
agrees that the Company may, in addition to pursuing any other remedies it may
have in law or in equity, cease making any payments otherwise required by this
Agreement and obtain an injunction against Executive from
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any court having jurisdiction over the matter restraining any further violation
of this Agreement by Executive.
12. BENEFICIARIES; REFERENCES. Executive shall be entitled to select
(and change, to the extent permitted under any applicable law) a beneficiary or
beneficiaries to receive any compensation or benefit payable hereunder following
Executive's death, and may change such election, in either case by giving the
Company written notice thereof. In the event of Executive's death or a judicial
determination of his incompetence, reference in this Agreement to Executive
shall be deemed, where appropriate, to refer to his beneficiary, estate or other
legal representative. Any reference to the masculine gender in this Agreement
shall include, where appropriate, the feminine.
13. SURVIVORSHIP. The respective rights and obligations of the parties
hereunder shall survive any termination of this Agreement to the extent
necessary to the intended preservation of such rights and obligations. In
particular, the provisions of Section 11 hereunder shall remain in effect as
long as is necessary to give effect thereto. The provisions of this Section 13
are in addition to the survivorship provisions of any other section of this
Agreement.
14. GOVERNING LAW. This Agreement shall be construed, interpreted and
governed in accordance with the laws of the State of New York, without reference
to rules relating to conflicts of law.
15. EFFECT ON PRIOR AGREEMENTS. This Agreement contains the entire
understanding between the parties hereto and supersedes in all respects any
prior or other agreement or understanding between the Company or any affiliate
of the Company and Executive.
16. WITHHOLDING. The Company shall be entitled to withhold from payment
any amount of withholding required by law.
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17. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original.
XxxXxxx.xxx, Ltd.
By /s/ Xxxxxxx X. Xxxxxxx Date:
------------------------------ -------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President and CEO
/s/ Xxxxxxx X. Xxxxxxxxx Date: 4/25/00
------------------------------ -------------------
Xxxxxxx X. Xxxxxxxxx
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