EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement"), dated as of July 1,
1999, is made and entered by and among Xxxx Xxxxxx (the "Executive"), eToys
Inc., a Delaware corporation ("Parent"), and BabyCenter, Inc., a Delaware
corporation and wholly owned subsidiary of Parent (the "Company").
RECITALS
WHEREAS, pursuant to an Agreement and Plan of Reorganization dated
as of April 18, 1999 (the "Merger Agreement"), between the Company, Parent
and the other parties thereto, as of the date hereof Parent has acquired the
Company by way of a merger;
WHEREAS, Parent and the Company desire to be assured of the
continued provision of services by the Executive and therefore wish to have
the Company employ the Executive in the capacity and on the terms set forth
below;
WHEREAS, the Executive desires to commit himself to serve the
Company on the terms set forth below;
NOW, THEREFORE, in consideration of the foregoing and of the
respective covenants and agreements set forth below, the parties hereto agree
as follows:
1. EMPLOYMENT PERIOD. The Company shall employ the Executive and the
Executive shall continue in the employ of the Company for the period
commencing on the date of this Agreement, and ending on July 1, 2004,
unless sooner terminated in accordance with the provisions of this
Agreement or otherwise (the "Initial Term"). This Agreement may be
renewed or extended for one or more additional periods after the
Initial Term only by mutual written agreement to that effect by the
parties (each, a "Renewal Period"); provided, that any such Renewal
Period may be terminated as provided herein. The "Term" shall mean the
period beginning on the date hereof and ending on the date of
termination of Executive's services for the Company. Upon expiration of
the Term, except as expressly set forth herein (including in Section
6), this Agreement and all of its provisions shall terminate and shall
cease to have any force or effect.
2. DUTIES
(a) During the Term, the Executive shall serve as the President of
the Company, with such authority and duties as are assigned to
him from time to time by the Board of Directors of the Company
or the Board of Directors of Parent, that are consistent with
the customary duties associated with such title and position.
During the Term, Executive shall report to the Chief Executive
Officer of Parent or the Board of Directors of the Company
and/or Parent, as determined by the Company or Parent from
time to time.
(b) During the Term, the Executive shall devote substantially all
his working time, attention, skill and efforts to the business
and affairs of the Company,
will use his best efforts to promote the success of the
Company's business, and shall not enter the employ of or serve
as a consultant to, or in any way perform any services, with
or without compensation, for any other person, enterprise,
business, company, corporation, partnership, firm, association
or organization.
3. COMPENSATION AND RELATED MATTERS
(a) SALARY. During the Term, the Executive shall receive a salary
at the rate of $150,000 per annum, payable in accordance with
the Company's regular payroll practices. Executive's annual
base salary shall be subject to review from time to time for
possible increases by the Board of Directors of the Company or
of Parent. (Executive's base salary, as increased from time to
time, shall be referred to as the "Base Salary.")
(b) EXPENSES. The Company shall reimburse the Executive for all
reasonable travel and other reasonable out-of-pocket business
expenses incurred by the Executive in the performance of his
duties under this Agreement upon evidence of payment and
otherwise in accordance with the Company's procedures in
effect from time to time.
(c) EMPLOYEE BENEFITS. During the Term, except as provided in
Section 2(d) below, the Executive shall be entitled to
participate in or receive benefits under any employee health
benefit plan or other arrangement made available by the
Company or its subsidiaries to its employees ("Health Benefit
Plan") on terms no less favorable than those generally
applicable to other employees of the Company or its
subsidiaries, subject to and on a basis consistent with the
terms, conditions and overall administration of such Health
Benefit Plan. The Executive shall also be entitled to
participate in or receive benefits under any other employee
benefit plans on terms no less favorable than those generally
applicable to employees of the Company or its subsidiaries,
subject to and on a basis consistent with the terms,
conditions and overall administration of such other employee
benefit plans.
(d) VACATION. The Executive shall be entitled to three weeks
vacation during each year of the Term.
(e) DEDUCTIONS AND WITHHOLDINGS. All amounts payable or which
become payable hereunder shall be subject to all deductions
and withholding required by law.
(f) STOCK OPTIONS. On the date hereof, the Board of Directors of
Parent shall cause to be issued to Executive, from Parent's
1999 Employee Stock Option Plan, options (the "Executive
Options") to purchase 150,000 shares of the common stock, par
value $.0001 per share, of Parent ("Parent Common Stock").
Such options shall have an exercise price equal to the closing
sales price of the Parent Common Stock on the Nasdaq National
Market on the date of this Agreement. All other terms of the
options, including the four-
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year vesting schedule, shall be as specified in the 1999
Employee Stock Option Plan.
(g) ACCELERATED VESTING UNDER CERTAIN CIRCUMSTANCES. Parent agrees
that, in the event of a Change of Control of Parent (as
defined below), if Executive is terminated without Cause or
pursuant to a Constructive Termination (each as defined below)
at any time prior to the second anniversary of such Change of
Control, then the vesting of all options to acquire shares of
Parent Common Stock held by Executive shall be immediately
accelerated and all such options shall become exercisable in
full
4. TERMINATION. The Executive's services for the Company and the Term of
this Agreement may be terminated under the following circumstances:
(a) DEATH. The Executive's services hereunder shall terminate upon
his death. In the case of the Executive's death, the Company
shall pay to the Executive's beneficiaries or estate, as
appropriate, after his death, his then current accrued and
unpaid Base Salary as well as 100% of any earned and unpaid
bonus for any years preceding the year of termination ("Unpaid
Bonus") and other benefits and payments then due (including,
without limitation, reimbursement of amounts under Section 3)
to which the Executive is then entitled hereunder. Executive
and his beneficiaries, as appropriate, shall be entitled to no
other compensation under this Agreement following, or as a
result of, a termination under these circumstances.
(b) DISABILITY
(i) If a Disability (as defined below) of the Executive
occurs during the Term, the Company may give the
Executive written notice of its intention to
terminate his employment. In such event, the
Executive's services with the Company shall terminate
on the effective date specified in such notice. In
the case of a termination as a result of a
Disability, the Company shall pay to the Executive
after his termination his then current accrued and
unpaid Base Salary, Unpaid Bonus and other benefits
and payments then due (including, without limitation,
reimbursement of amounts under Section 3 to which the
Executive is entitled hereunder). Executive and his
beneficiaries, as appropriate, shall be entitled to
no other compensation under this Agreement following,
or as a result of, a termination under these
circumstances.
(ii) For the purpose of this subsection 4(b), "Disability"
shall mean the Executive's inability to perform his
duties to the Company on a full-time basis for 90
consecutive days or a total of 120 days in any twelve
month period as reasonably determined by the Board of
Directors of the Company or of Parent.
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(c) TERMINATION BY THE COMPANY FOR CAUSE
The Company may terminate the Executive's services hereunder
for Cause (as defined below) at any time upon written notice
to the Executive. In such event, the Executive's services
shall terminate on the effective date specified in such
notice. In the case of the Executive's termination for Cause,
the Company shall promptly pay to the Executive his then
current accrued and unpaid Base Salary and other benefits and
payments then due (including, without limitation,
reimbursement of amounts under Section 3 (other than payments
under any bonus plan for the year of termination)) to which
the Executive is entitled hereunder. The Executive and his
beneficiaries, as appropriate, shall be entitled to no other
compensation under this Agreement following, or as a result
of, a termination under these circumstances. For purposes of
this Agreement, the Company shall have "Cause" to terminate
Executive's services hereunder in the event the Company or
Parent shall determine in good faith that any of the following
has occurred: (A) acts or omissions by the Executive which
constitute material misconduct or a knowing violation of a
material written policy of the Company or any of its
subsidiaries (provided Executive has been provided with a copy
of such material written policy), (B) the Executive or any
affiliated or related person or entity receiving a benefit in
money, property or services from the Company or any of its
subsidiaries or from another person dealing with the Company
or any of its subsidiaries, in material violation of
applicable law or Company policy, (C) an act of fraud,
conversion, misappropriation, or embezzlement by the Executive
or his conviction of, or entering a guilty plea or plea of no
contest with respect to, a felony, or the equivalent thereof,
(D) a material breach by the Executive of any of the
provisions of Section 6 or Section 7 hereof, (E) the
Executive's failure or refusal (whether intentional, reckless
or negligent) to perform his duties under this Agreement or
(F) any other breach by the Executive of this Agreement in any
material respect.
(d) TERMINATION BY THE EXECUTIVE. The Executive may terminate his
employment hereunder, PROVIDED that Executive first gives the
Company a written notice of termination at least 30 calendar
days prior to the effective date of any such termination. In
the event the Executive terminates his employment, the Company
shall pay to the Executive his then current accrued and unpaid
Base Salary and other benefits and payments then due
(including, without limitation, reimbursement of amounts under
Section 3 (other than payments under any bonus plan for the
year of termination)) to which the Executive is entitled
hereunder. The Executive and his beneficiaries shall be
entitled to no other compensation under this Agreement
following, or as a result of, a termination under these
circumstances.
(e) TERMINATION BY THE COMPANY WITHOUT CAUSE AND CONSTRUCTIVE
TERMINATION. The Company may terminate the Executive's
services hereunder without Cause at any time upon 30 days'
written notice to the Executive. Further, in the event that
the Company either (i) requires, as a condition of his
employment and without his consent, that Executive relocate
outside of the
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San Francisco Bay Area, or (ii) re-assigns Executive to a
position, or delegates to Executive duties and
responsibilities, that are materially less than those
generally associated with the title specified in Section 2(a)
hereof for an executive in a company that is reasonably
comparable in size and nature of business to the Company
(either clause (i) or clause (ii), a "Constructive
Termination"), then Executive shall be entitled to elect to
treat such events specified in clause (i) or (ii) as a
constructive termination of his employment hereunder by
providing written notice of such election to the Company. In
the event that Executive is terminated without Cause or
pursuant to a Constructive Termination as provided herein,
Executive's services shall terminate on the effective date
specified in the respective notice specified above, all
options to acquire Parent Common Stock held by Executive will
become fully vested and immediately exerciseable, and the
Company shall pay to the Executive (A) his current accrued and
unpaid Base Salary, Unpaid Bonus and other benefits and
payments (including, without limitation, reimbursement of
amounts under Section 3) to which the Executive is entitled
hereunder as of such effective date and (B) either (x) if such
termination occurs at any time prior to the second anniversary
of the date hereof, 18 months of the Executive's then
applicable Base Salary, or (y) if such termination occurs at
any time from the second anniversary of the date hereof
through and including the fifth anniversary of the date
hereof, 12 months of the Executive's then applicable Base
Salary (provided, however, that under no circumstance shall
any severance payment be made in respect of any month that
follows the fifth anniversary of the date hereof), in each
case subject to the Executive's compliance with the terms of
Section 6 and Section 7 hereof. Notwithstanding the foregoing
subclause (B), in the event that Executive becomes employed in
a position that is reasonably comparable to his position with
the Company in terms of base salary and level of duties and
responsibilities, then the Company shall no longer be required
to make the payments under subclause (B) from and after the
date of Employee's commencement of such alternative
employment. The Executive and his beneficiaries shall be
entitled to no other compensation under this Agreement
following, or as a result of, a termination without Cause or a
Constructive Termination under this paragraph. Salary and
bonus payments referred to in this Section 4(e) will be paid
in accordance with Sections 3(a) and 3(c), as applicable.
5. LIMITATIONS ON STOCK TRANSFER.
(a) DEFINED TERMS. For purposes of this Section 5, the following
terms shall have the following meanings:
"Change of Control" shall mean (a) a sale of all or
substantially all of the assets of Parent or (b) a merger,
consolidation, reorganization, combination or other comparable
business transaction involving Parent following which the
shareholders of Parent immediately prior to such transaction
cease to own at least a majority of the outstanding voting
power of all classes of Parent capital stock following such
transaction.
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"Exchange Ratio" shall have the meaning specified therefor in
the Merger Agreement.
"Subject Shares" means a number of shares of Parent Common
Stock owned by Executive as of the date hereof equal to the
product of (A) 875,198 MULTIPLIED BY (B) the Exchange Ratio
MULTIPLIED BY (C) 0.666667, rounded down to the nearest even
number. The number of Subject Shares shall be adjusted from
time to time to reflect any stock split, stock dividend,
reverse stock split or other comparable transaction of Parent
following the date hereof, and such adjusted number of shares
shall be subject to the terms of this Section 5.
"Transfer" means to sell, offer to sell, contract to sell,
assign, pledge, hypothecate, transfer, exchange, grant any
option to purchase or otherwise transfer or dispose of.
(b) LIMITATION ON TRANSFERS OF SUBJECT SHARES.
(i) LOCK-UP. Executive hereby agrees that, without
Parent's prior written consent, he will not, directly
or indirectly, Transfer (A) any of the Subject Shares
at any time prior to the first anniversary of the
date of this Agreement or (B) more than one-half of
the Subject Shares at any time from the first
anniversary of the date of this Agreement through and
including the second anniversary of the date of this
Agreement; PROVIDED, HOWEVER, that the foregoing
provisions shall become null and void and of no
further force or effect in the event that (i) Parent
terminates Executive without Cause or pursuant to a
Constructive Termination or (ii) Parent experiences a
Change of Control.
(ii) STOP TRANSFER; LEGEND. Executive hereby agrees and
consents to the entry of stop transfer instructions
by Parent against the Transfer of the Subject Shares
consistent with the terms of this Section 5. In
addition, Executive hereby agrees and consents to the
placement of a legend on any certificate representing
the Subject Shares stating that the Transfer of such
Subject Shares is restricted by the terms of this
Agreement.
(iii) NO OWNERSHIP INTEREST BY PARENT. Nothing contained in
this Section 5 shall be deemed to vest in Parent any
direct or indirect ownership or incidence of
ownership of or with respect to any Subject Shares.
All rights of ownership and economic benefits of and
relating to the Subject Shares, including, without
limitation, the right to vote the Subject Shares and
to receive dividends thereon, shall remain and belong
to Executive, subject only to the Transfer
restrictions contained in this Section 5.
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(c) CERTAIN TRANSFERS OF SHARES OF PARENT COMMON STOCK. Executive
agrees that, if Executive elects at any time to Transfer
100,000 or more shares of Parent Common Stock in any single
transaction or series of related transactions, then Executive
and Parent will retain a nationally recognized investment
banking firm, which shall be approved in writing by both
Executive and Parent, such approval not to be unreasonably
withheld by either party (the "Investment Bank"). Executive
and Parent will request that the Investment Bank provide
Executive and Parent with advice regarding the manner of
Transferring the respective shares that will most effectively
achieve the two goals of maximizing Executive's price for the
respective shares and minimizing any negative impact of such
Transfer on the public trading price of Parent Common Stock.
Each of Executive and Parent agrees to follow such advice of
the Investment Bank in connection with any such Transfer;
provided that, if the Investment Bank recommends a registered,
underwritten secondary offering of the respective shares, then
Parent shall be entitled to decline to follow such advice, in
which event Executive shall be entitled to sell the respective
shares in a manner designed solely to maximize the price paid
to Executive for the respective shares. All sales commissions
payable to the Investment Bank in connection with any Transfer
under this paragraph shall be paid by Executive, and the
reasonable expenses of the Investment Bank in connection with
providing such services to Executive and Parent will be paid
by Parent.
6. CONFIDENTIAL AND PROPRIETARY INFORMATION.
(a) The parties agree and acknowledge that during the course of the
Executive's employment, the Executive has been given and will have
access to and be exposed to trade secrets and confidential
information in written, oral, electronic and other forms regarding
Parent, the Company and their subsidiaries (which includes but is
not limited to all of its business units, divisions and
subsidiaries) and their business, equipment, products and employees,
including, without limitation: the identities of Parent's and the
Company's and their subsidiaries' customers and key accounts and
potential customers and key accounts (hereinafter referred to
collectively as "Customers"), including, without limitation, the
identity of Customers the Executive cultivates or maintains while
providing services at Parent, the Company or any of their
subsidiaries using Parent's the Company's, or any of their
subsidiaries' products, name and infrastructure, and the identities
of contact persons at those Customers; the particular preferences,
likes, dislikes and needs of those Customers and contact persons
with respect to product types, pricing, sales calls, timing, sales
terms, rental terms, lease terms, service plans, and other marketing
terms and techniques; Parent's and the Company's and their
subsidiaries' business methods, practices, strategies, forecasts,
pricing, and marketing techniques; the identities of Parent's and
the Company's and their subsidiaries' licensors, vendors and other
suppliers and the identities of Parent's and the Company's and their
subsidiaries' contact persons at such licensors, vendors and other
suppliers; the identities of Parent's and the Company's and their
subsidiaries' key sales representatives and personnel and other
employees; advertising and sales materials; research, computer
software and related materials; and other facts and financial and
other business
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information concerning or relating to the Parent and the Company or
any of their subsidiaries and their business, operations, financial
condition, results of operations and prospects. The Executive
expressly agrees to use such trade secrets and confidential
information only for purposes of carrying out his duties for the
Company and its subsidiaries, and not for any other purpose,
including, without limitation, not in any way or for any purpose
detrimental to Parent, the Company or any of their subsidiaries. The
Executive shall not at any time, either during the course of his
employment hereunder or after the termination of such employment,
use for himself or others, directly or indirectly, any such trade
secrets and confidential information, and, except as required by
law, the Executive shall not disclose such trade secrets and
confidential information, directly or indirectly, to any other
person or entity; PROVIDED THAT the obligations under this sentence
will not be construed to restrict the Executive from calling on or
otherwise maintaining a relationship with Customers or suppliers of
Parent, the Company or any of their subsidiaries during or after the
termination of the Executive's employment with the Company. Trade
secret and confidential information hereunder shall not include any
information which (i) is already in or subsequently enters the
public domain, other than as a result of any direct or indirect
disclosure by the Executive, (ii) becomes available to the Executive
on a non-confidential basis from a source other than the Company or
any of its subsidiaries, PROVIDED THAT such source is not subject to
a confidentiality agreement or other obligation of secrecy or
confidentiality (whether pursuant to a contract, legal or fiduciary
obligation or duty or otherwise) to the Company or any of its
subsidiaries or any other person or entity or (iii) is approved for
release by the Company or any of its subsidiaries or which the
Company or any of its subsidiaries makes available to third parties
without an obligation of confidentiality.
(b) All physical property and all notes, memoranda, files, records,
writings, documents and other materials of any and every nature,
written or electronic, which the Executive shall prepare or receive
in the course of his employment with the Company and which relate to
or are useful in any manner to the business now or hereafter
conducted by Parent, the Company or any of their subsidiaries are
and shall remain the sole and exclusive property of the Company and
its subsidiaries, as applicable. The Executive shall not remove from
the Company's premises any such physical property, the original or
any reproduction of any such materials nor the information contained
therein except for the purposes of carrying out his duties to the
Company or any of its subsidiaries and all such property (except for
any items of personal property not owned by the Company or any of
its subsidiaries), materials and information in his possession or
under his custody or control upon the termination of his employment
shall be immediately turned over to the Company and its
subsidiaries, as applicable.
(c) All inventions, improvements, trade secrets, reports, manuals,
computer programs, tapes and other ideas and materials developed or
invented by the Executive during the period of his employment,
either solely or in collaboration with others, which relate to the
actual or anticipated business or research of Parent, the Company or
any of their subsidiaries which result from or are suggested by any
work the Executive may do for Parent, the Company or any of their
subsidiaries or which result from use
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of Parent's, the Company's or any of their subsidiaries' premises or
property (collectively, the "Developments") shall be the sole and
exclusive property the Company and its subsidiaries, as applicable.
The Executive assigns and transfers to the Company his entire right
and interest in any such Development, and the Executive shall
execute and deliver any and all documents and shall do and perform
any and all other acts and things necessary or desirable in
connection therewith that the Company or any of its subsidiaries may
reasonably request. This paragraph does not apply to any inventions
which the Executive made prior to his employment by the Company (all
of which are listed on Exhibit A, which the Executive has attached
hereto).
(d) The provisions of this Section 6 shall survive any termination of
this Agreement and termination of the Executive's employment with
the Company for any reason or no reason.
7. NO SOLICITATION OF EMPLOYEES. The Executive acknowledges and agrees
that he has gained and during the time of his employment with the
Company, will gain, valuable information about the identity,
qualifications and on-going performance of the employees of Parent, the
Company and their subsidiaries. During the Term and for a period of one
year thereafter, except pursuant to Executive's duties as an employee
of the Company, the Executive shall not directly or indirectly (i) seek
to hire or employ any of Parent's, the Company's or any of their
subsidiaries' employees, (ii) solicit or encourage any such employee to
seek or accept employment with any other person or entity or (iii)
disclose any information, except as required by law, about such
employee to any prospective employer.
8. INJUNCTIVE RELIEF. The Executive and the Company (a) intend that the
provisions of Sections 6 and 7 be and become valid and enforceable, (b)
acknowledge and agree that the provisions of Sections 6 and 7 are
reasonable and necessary to protect the legitimate interests of Parent,
the Company and their business and (c) agree that any violation of
Section 6 or 7 will result in irreparable injury to Parent, the Company
and their subsidiaries, the exact amount of which will be difficult to
ascertain and the remedies at law for which will not be reasonable or
adequate compensation to Parent, the Company and their subsidiaries for
such a violation. Accordingly, the Executive agrees that if the
Executive violates the provisions of Section 6 or 7, in addition to any
other remedy which may be available at law or in equity, the Company
shall be entitled to specific performance and injunctive relief,
without posting bond or other security, and without the necessity of
proving actual damages.
9. ASSIGNMENT; SUCCESSORS AND ASSIGNS. The Executive agrees that he shall
not assign, sell, transfer, delegate or otherwise dispose of, whether
voluntarily or involuntarily, any rights or obligations under this
Agreement, nor shall the Executive's rights hereunder be subject to
encumbrance of the claims of creditors. Any purported assignment,
transfer, delegation, disposition or encumbrance in violation of this
Section 9 shall be null and void and of no force or effect. Nothing in
this Agreement shall prevent the consolidation or merger of Parent or
the Company with or into any other entity, or the sale by Parent or the
Company of all or any portion of its properties or assets, or the
assignment by Parent or the Company of this Agreement
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and the performance of the Company's obligations hereunder to any
successor in interest or any affiliated entity, and the Executive
hereby consents to any and all such assignments. Subject to the
foregoing, this Agreement shall be binding upon and shall inure to
the benefit of the parties and their respective heirs, legal
representatives, successors, and permitted assigns, and, except as
expressly provided herein, no other person or entity shall have any
right, benefit or obligation under this Agreement as a third party
beneficiary or otherwise.
10. GOVERNING LAW; JURISDICTION AND VENUE, WAIVER OF JURY TRIAL. This
Agreement shall be governed, construed, interpreted and enforced in
accordance with the substantive laws of the State of California without
regard to the conflicts of law principles thereof. Suit to enforce this
Agreement or any provision or portion thereof may be brought in the
federal courts located in Los Angeles, California, unless subject
matter jurisdiction is lacking, in which case suit may be brought in
the state courts located in Los Angeles, California. EACH OF THE
PARTIES HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OR RELATED TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
11. SEVERABILITY OF PROVISIONS. In the event that any provision or any
portion thereof should ever be adjudicated by a court of competent
jurisdiction to exceed the time or other limitations permitted by
applicable law, as determined by such court in such action, then such
provisions shall be deemed reformed to the maximum time or other
limitations permitted by applicable law, the parties hereby
acknowledging their desire that in such event such action be taken. In
addition to the above, the provisions of this Agreement are severable,
and the invalidity or unenforceability of any provision or provisions
of this Agreement or portions thereof shall not affect the validity or
enforceability of any other provision, or portion of this Agreement,
which shall remain in full force and effect as if executed with the
unenforceable or invalid provision or portion thereof eliminated.
Notwithstanding the foregoing, the parties hereto affirmatively
represent, acknowledge and agree that it is their intention that this
Agreement and each of its provisions are enforceable in accordance with
their terms and expressly agree not to challenge the validity or
enforceability of this Agreement or any of its provisions, or portions
or aspects thereof, in the future. The parties hereto are expressly
relying upon this representation, acknowledgement and agreement in
determining to enter into this Agreement.
12. WARRANTY. As an inducement to the Company to enter into this Agreement,
the Executive represents and warrants that he is not a party to any
other agreement or obligation for personal services, and that there
exists no impediment or restraint, contractual or otherwise, on his
power, right or ability to enter into this Agreement and to perform his
or her duties and obligations hereunder. As an inducement to the
Executive to enter into this Agreement, Company represents and warrants
that the person signing this Agreement for the Company has been duly
authorized to do so by all necessary corporate action and has the
corporate power and authority to execute this Agreement on the
Company's behalf. The execution and delivery of this Agreement and the
consummation of the transactions contemplated have been duly and
effectively authorized by all necessary corporate action of the
Company.
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13. NOTICES. All notices, requests, demands and other communications which
are required or may be given under this Agreement shall be in writing
and shall be deemed to have been duly given when received if personally
delivered; when transmitted if transmitted by telecopy, electronic or
digital transmission method upon receipt of telephonic or electronic
confirmation; the day after it is sent, if sent for next day delivery
to a domestic address by recognized overnight delivery service (E.G.,
Federal Express); and upon receipt, if sent by certified or registered
mail, return receipt requested. In each case notice will be sent to:
If to the Company:
(a) BabyCenter, Inc.
c/o eToys Inc.
0000 Xxxxx Xxxx Xxxx., Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Attention: Chief Financial Officer
Telephone No. 000-000-0000
Telecopy No. 000-000-0000
with a copy to:
Irell & Xxxxxxx LLP
000 Xxxxx Xxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx
Telephone No. (000) 000-0000
Telecopy: (000) 000-0000
(b) if to the Executive, to:
Xxxx Xxxxxx
000 Xxxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
or to such other place and with other copies as either party may
designate as to itself or himself by written notice to the others.
14. CUMULATIVE REMEDIES. All rights and remedies of either party hereto are
cumulative of each other and of every other right or remedy such party
may otherwise have at law or in equity, and the exercise of one or more
rights or remedies shall not prejudice or impair the concurrent or
subsequent exercise of other rights or remedies.
15. COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which will be deemed to be an original, but all of which
together shall constitute one and the same Agreement.
16. ENTIRE AGREEMENT. The terms of this Agreement are intended by the
parties to be the final expression of their agreement with respect to
the employment of the Executive
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by the Company and supersede, and may not be contradicted by,
modified or supplemented by, evidence of any prior or
contemporaneous agreement. The parties further intend that this
Agreement shall constitute the complete and exclusive statements of
its terms and that no extrinsic evidence whatsoever may be
introduced in any judicial, administrative or other legal proceeding
to vary the terms of this Agreement.
17. AMENDMENTS; WAIVERS. This Agreement may not be modified, amended, or
terminated except by an instrument in writing, approved by the Company
and signed by the then existing parties hereto. No waiver of any of the
provisions of this Agreement, whether by conduct or otherwise, in any
one or more instances, shall be deemed to be construed as a further,
continuing or subsequent waiver of any such provision or as a waiver of
any other provision of this Agreement. No failure to exercise and no
delay in exercising any right, remedy or power hereunder shall preclude
any other or further exercise of any other right, remedy or power
provided herein or by law or in equity.
18. REPRESENTATION OF COUNSEL; MUTUAL NEGOTIATION. Each party has had the
opportunity to be represented by counsel of its choice in negotiating
this Agreement. This Agreement shall therefore be deemed to have been
negotiated and prepared at the joint request, direction and
construction of the parties, at arm's-length, with the advice and
participation of counsel, and shall be interpreted in accordance with
its terms without favor to any party.
[signature page to follow]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date and year first above written.
BabyCenter, Inc.
By: Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: CEO
eToys Inc.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Financial Officer
EXECUTIVE
Xxxx Xxxxxx
Name: Xxxx Xxxxxx
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Exhibit A
INVENTIONS MADE PRIOR TO EMPLOYMENT
Not Applicable
-14-
