[LOGO OF PURCHASEPRO]
August 31, 1999
Xx. Xxxx Xxxxxx
0000 X. Xxxxxxx Xxxxx, #0000
Xxx Xxxxx, XX 00000
Dear Xxxx:
This letter agreement (the "Agreement") sets forth the terms and conditions
of your employment with XxxxxxxxXxx.xxx,Inc. (the "Company").
In consideration of the mutual covenants and promises made in this
Agreement, you and the Company agree as follows:
1. Employment. Commencing as of August 31, 1999 (the "Effective Date"),
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you will serve as the President of Hospitality Purchasing Systems, a wholly
owned subsidiary of XxxxxxxxXxx.xxx. You will be given such duties,
responsibilities and authority as are appropriate to such position. Throughout
the term of your employment, you will devote such business time and energies to
the business and affairs of the Company as needed to carry out your duties and
responsibilities, subject to the overall supervision of the company's Chief
Executive Officer and/or President of the Company.
2. Term. The term of this Agreement will commence on the Effective Date
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and shall continue for two (2) years thereafter. During the term of this
Agreement, your employment with the Company will be "at-will." Either you or the
Company can terminate your employment at any time and for any reason, with or
without cause and with or without notice, in each case subject to the terms and
provisions of paragraph 7 below.
3. Sa1ary. For your services to the Company, you will be paid a base
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salary, payable in accordance with the Company's usual payroll practices during
your employment, at an annualized rate of $160,000 per year.
4. Bonus. You will receive a signing bonus of $25,000.
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5. Employee Benefit Programs. During your employment, you will be
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entitled to participate in all Company employee benefit plans and compensation
and perquisite programs made available to the Company's executives or salaried
employees generally. You will be entitled to four weeks of vacation per year,
provided that you will not accrue unused vacation of more than eight weeks. The
corporation shall provide you with an expense allowance of $450 per month. HPS
will cover your living expenses, not to exceed $1,000 per month, until your
family moves out to Las Vegas. HPS will pay for the expense of moving your car
to Las Vegas, and will cover your moving expenses for your family upon prior
from the Company President.
Xx. Xxxx Xxxxxx
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August 31, 1999
6. Stock Options. The Corporation will provide you with the following
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options (collectively, "Stock Options") to acquire shares of the Corporation's
Class A Common Stock ("Shares"):
On the Effective Date, Stock Options to purchase 75,000 Shares at $10.80 (90% of
the midrange of the currently estimated IPO price at $11-$13 (subject to SEC
rules and restrictions imposed upon the officers and major shareholders of the
Corporation). The Stock Options will be exercisable at any time during the ten
(10) year period commencing on vesting of such Stock Options, as follows: (i)
Stock Options on 50,000 Shares shall vest six months after the effective date,
(ii), Stock Options on 12,500 Shares shall vest one year after the effective
date, and (iii) Stock Options on 12,500 Shares shall vest two (2) years after
the Effective Date. No vesting shall occur under this Section on or after the
termination of your employment except in the event that your employment is
terminated without cause as referenced in Section 7(b) below or should you die
or be permanently disabled per section7(d).
7. Consequences of Termination of Employment.
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(a) For Cause. If the Company terminates your employment for Cause you will
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be entitled to any unpaid salary, bonus and vacation due you pursuant to
paragraphs 3, 4 and 6 above through the date of termination, and you will be
entitled to no other compensation from the Company. "Cause" will exist in the
event you: (i) willfully breach this Agreement, which breach is not cured within
10 days following written notice from the Company, (ii) engage in conduct
constituting willful dishonesty toward, fraud upon, or deliberate or attempted
injury to the Company; or (iii) are negligent in the performance of your duties,
which negligence is not cured within 10 days following written notice from the
Company.
(b) Other than for Cause. If the Company terminates your employment for
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reasons other than Cause, you will be entitled to any unpaid salary, bonus and
vacation due you pursuant to paragraphs 3, 4 and 6 above through the date of
termination plus twelve (12) months of your base salary in effect at the date of
your termination of employment. You will not be entitled to any other
compensation from the Company.
(c) Voluntary Termination. If you terminate your employment with the
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Company of your own volition, such termination will have the same consequences
as a termination for Cause under subparagraph (a) above.
(d) Death or Disability. If your employment with the Company terminates as
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a result of your death or total and permanent disability, such termination will
have the same consequences as a termination by the Company other than for Cause
under subparagraph (b) above.
(e) Release of Claims. As a condition to the receipt of the payments
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described in this paragraph 7, you shall be required to execute a release of all
claims arising out of your employment or the termination thereof including, but
not limited to, any claim of discrimination under state or federal law, but
excluding claims for indemnification from the Company under any
Xx. Xxxx Xxxxxx
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August 31, 1999
indemnification agreement with the Company, its certificate of incorporation and
by-laws or applicable law or claims for directors and officers' insurance
coverage.
(f) Conditions to Receipt of Payments and Benefits. In view of your position
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and access to proprietary information, as a condition to the receipt of payments
described in this paragraph 7, you shall not, without the Company's written
consent, directly or indirectly, alone or as a partner, joint venturer, officer,
director, employee, consultant, agent or stockholder (other than a less than 5%
stockholder of a publicly traded company), within one year of your date of
termination from the Company (i) engage in any activity which is in competition
with the business, the products or services of the Company, (ii) solicit any of
the Company's employees, consultants or customers, (iii) hire any of the
Company's employees or consultants in an unlawful manner or actively encourage
employees or consultants to leave the Company, or (iv) otherwise breach your
proprietary information obligations. You agree to execute and comply with the
form of proprietary information agreement adopted by the Company.
8. Assignability; Binding Nature. Commencing on the Effective Date, this
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Agreement will be binding upon you and the Company and your respective
successors, heirs, and assigns. This Agreement may not be assigned by you except
that your rights to compensation and benefits hereunder, subject to the
limitations of this Agreement, may be transferred by will or operation of law.
No rights or obligations of the Company under this Agreement may be assigned or
transferred except by operation of law in the event of a merger or consolidation
in which the Company is not the continuing entity, or the sale or liquidation of
all or substantially all of the assets of the Company, provided that the
assignee or transferee is the successor to all or substantially all of the
assets of the Company and assumes the Company's obligations under this Agreement
contractually or as a matter of law.
9. Governing Law. This Agreement will be deemed a contract made under,
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and for all purposes shall be construed in accordance with, the laws of Nevada
(without regard to its choice of law provisions).
10. Arbitration. The parties agree that any disputes arising out of or
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related to the Agreement shall be resolved by using the following procedures:
(a) The party claiming to be aggrieved shall furnish to the other party a
written statement of the grievance and the relief requested or proposed.
(b) If the other party does not agree to furnish the relief requested or
proposed, or otherwise does not satisfy the demand of the party claiming to be
aggrieved, the parties shall submit the dispute to non-binding mediation before
a mediator to be jointly selected by the parties.
(c) If the mediation does not produce a resolution of the dispute, the
parties agree that the dispute shall be resolved by final and binding
arbitration in Las Vegas, Nevada. The parties shall attempt to agree to the
identity of an arbitrator, and, if they are unable to do so, they will obtain a
list of
Xx. Xxxx Xxxxxx
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August 31, 1999
arbitrators from the Judicial Arbitration and Mediation Service and select an
arbitrator by striking names from that list. The arbitrator shall have the
authority to determine whether the conduct complained of violates the rights of
the complaining party and, if so, to grant any relief authorized by law. The
arbitrator shall not have the authority to modify, change or refuse to enforce
the terms of this Agreement.
(d) Arbitration shall be the exclusive final remedy for any dispute
between the parties, and the parties agree that no dispute shall be submitted to
arbitration where the party claiming to be aggrieved has not compiled with the
preliminary steps provided for above, provided however, that this Section 10
shall not be construed to eliminate or reduce any right the Company or the
Executive may otherwise have to seek and obtain from a court a temporary
restraining order or a preliminary or permanent injunction to enforce the
restrictions of subparagraph 5(f) of this Agreement. The parties agree that the
arbitration award shall be enforceable in Xxxxx County Superior Court so long as
the arbitrator's findings of fact are supported by substantial evidence on the
whole and the arbitrator has not made errors of law.
11. Withholding. Anything to the contrary notwithstanding, following the
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Effective Date all payments made by the Company hereunder to you or your estate
or beneficiaries will be subject to tax withholding pursuant to any applicable
laws or regulations. In lieu of withholding, the Company may, in its sole
discretion, accept other provision for payment of taxes as required by law,
provided it is satisfied that all requirements of law affecting its
responsibilities to withhold such taxes have been satisfied.
12. Entire Agreement and Release of Existing Claims and Obligations.
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This Agreement also supersedes completely all understandings and agreements,
whether oral or in writing between you and the Company's subsidiary Hospitality
Purchasing Systems, also known as HPS. You specifically acknowledge that this
agreement supersedes the September 30, 1998 letter agreement by which you became
Chief Operating Officer of HPS. You acknowledge that neither the Company nor HPS
owes any further obligations to you under the September 30, 1998 letter
agreement. This acknowledgement includes your express recognition that (1) you
do not now own any equity interest in HPS, and (2) you do not have any option or
contingent interest in such equity. You also acknowledge that you have no
options on Company stock other than the options set out in this Agreement. You
hereby release any rights to and disclaim any other equity interests in the
Company and any of its subsidiaries other than the options set out in this
Agreement. With the exception of the obligations that the Company owes to you
under this Agreement and the obligations that the law otherwise imposes on the
Company for actions taken after the date of this Agreement, you also hereby
release and forever discharge the Company, its subsidiaries and predecessors,
and all of their employees, officers and directors and all of their respective
affiliates, agents, attorneys and assigns from any and all claims, demands,
damages, actions, causes of action or suits, options, agreements, contracts,
covenants, promises, judgments and executions whatsoever, in law or equity,
whether known or unknown, whether direct or indirect, and whether asserted
affirmatively or by way of cross-claim, counterclaim, offset or any other
procedural means, that you now have, have had or can, shall or may have against
any of them. This release specifically includes any claims arising out of the
Americans with Disabilities
Xx. Xxxx Xxxxxx
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August 31, 1999
Act. In giving this release, you understand that if any fact with respect to any
matter covered by this release is found hereafter to be other than the facts you
now believe to be true, you expressly assume the risk of such differences in
fact and agree that this release shall nevertheless remain effective. You
expressly waive and relinquish all rights, benefits and reservations conferred
by the law of any state, or principal of common law that is similar to,
comparable to or equivalent to section 1542 of the California Code of Civil
Procedures, which provides: A general release does not extend to claims which
the creditor does not know or suspect to exist in his favor at the time of
executing the release which if known by him must have materially affected his
settlement with the debtor.
13. Miscellaneous. No provision of this Agreement may be amended or waived
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unless such amendment or waiver is agreed to by you and the Chief Executive
Officer or President of the Company in writing. No waiver by you or the Company
of the breach of any condition or provision of this Agreement will be deemed a
waiver of a similar or dissimilar provision or condition at the same or any
prior or subsequent time. In the event any portion of this Agreement is
determined to be invalid or unenforceable for any reason, the remaining portions
shall be unaffected thereby and will remain in full force and effect to the
fullest extent permitted by law.
Please indicate your acceptance and understanding of the terms of this
Agreement by signing and dating below.
Sincerely,
XXXXXXXXXXX.XXX, INC.
By /s/ [ILLEGIBLE]^^
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Its Pres/CEO
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ACKNOWLEDGED AND AGREED:
/s/ Xxxxxxx X. Xxxxxx
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(Xxxx Xxxxxx)
Dated: 9/3, 1999
