EXHIBIT 10.7
EMPLOYMENT AGREEMENT
This Agreement, dated as of March 10, 1998 is between XOOM, Inc., a
California corporation ("Employer"), and Xxxxx Xxxxxxxxxxxx ("Employee").
RECITALS
Employer and Employee wish to enter into an employment relationship on the
following terms and conditions.
Employer has spent significant time, effort, and money to develop certain
Proprietary Information (as defined below), which Employer considers vital to
its business and goodwill.
The Proprietary Information will necessarily be communicated to or acquired
by Employee in the course of his employment with Employer, and Employer wishes
to continue the employment relationship with Employee only if, in doing so, it
can protect its Proprietary Information and goodwill.
Employer anticipates that certain Invention/Ideas (as defined below) will
be conceived, developed, or reduced to practice by Employee during the course of
his employment by Employer.
Employer wishes to continue the employment relationship with Employee only
if, in doing so, it can provide for the disclosure, assignment, and protection
of these Invention/Ideas as provided in this Agreement.
ACCORDINGLY, the parties agree as follows:
1. PERIOD OF EMPLOYMENT. Employer shall continue to employ Employee to
render services to Employer in the position and with the duties and
responsibilities described in Section 2 for the period (the "Period of
Employment") commencing on the date of this Agreement and ending on the date
upon which the Period of Employment is terminated in accordance with Section 4.
2. POSITION AND RESPONSIBILITIES.
(a) POSITION. Employee accepts employment with Employer as Chief
Technical Officer and shall perform all services appropriate to that position,
as well as such other services as may be assigned by Employer. Employee shall
devote his best efforts and full-time attention to the performance of his
duties.
(b) OTHER ACTIVITY. Except as provided in Section 2(c) below,
Employee (during the Period of Employment) shall not (i) accept any other
employment; or (ii) engage, directly or indirectly, in any other business,
commercial, or professional activity (whether or not pursued for pecuniary
advantage) that is or may be competitive with Employer, that might create a
conflict of
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interest with Employer, or that otherwise might interfere with the business of
Employer, or any Affiliate, without prior consent of Employer. An "Affiliate"
shall mean any person or entity that directly or indirectly controls, is
controlled by, or is under common control with Employer.
(c) PSC RELATIONSHIP. The parties acknowledge that Employee has an
ongoing business relationship with Paralogic Software Corporation, a California
corporation ("PSC"), which may require a significant amount of his time and
effort. Employee shall be permitted to maintain his relationship with PSC
provided that Employee agrees that his primary duties will be with Employer. As
a part of Employee's involvement with PSC, he may develop certain
inventions/ideas on behalf of PSC. The parties acknowledge that nothing in this
Agreement is intended to compromise any rights that PSC may have in such
inventions and ideas, and that any enhancements to existing software owned by
PSC shall be the property of PSC. Additionally, Employee may have access to
certain information which is proprietary to PSC. The parties acknowledge that
nothing in this Agreement is intended to compromise any rights that PSC may have
in such proprietary information.
(d) NO BREACH OF THIRD PARTY AGREEMENTS. Employee represents and
warrants that performance of any of the terms of this Agreement will not breach
or conflict with any agreement to keep confidential proprietary information
acquired by Employee prior to the effective date of this Agreement. Employee
further represents and warrants that performance of this Agreement does not
conflict with any other agreement to which Employee is a party and which
concerns proprietary information, inventions or assignment of ideas. During the
Period of Employment, Employee will not disclose to Employer, or use, or induce
the Company to use, any proprietary information, inventions or assignment of
ideas.
3. COMPENSATION AND BENEFITS.
(a) COMPENSATION. In consideration of the services to be rendered
under this Agreement, Employer shall pay Employee the amount set forth in
Exhibit A hereto per year, payable semi-monthly, pursuant to the procedures
regularly established, and as they may be amended, by Employer in its sole
discretion, during the Period of Employment. Additionally, subject to approval
of the Board of Directors of Employer, Employer shall grant Employee such number
of options to purchase shares of Common Stock of Employer as is set forth in
Exhibit A. Employer shall review annually Employee's compensation and shall
determine, in its sole discretion, whether and how much the existing
compensation shall be adjusted, without regard to any policy or practice
Employer may have for adjusting salaries. All compensation and comparable
payments to be paid to Employee under this Agreement shall be less withholdings
required by law.
(b) BENEFITS. Employee shall be entitled to those benefits set forth
in Exhibit A. In addition, Employee shall be entitled to vacation leave in
accordance with Employer's standard policies. As Employee becomes eligible, he
shall have the right to participate in and receive benefits from all present and
future benefit plans specified in Employer's policies and generally made
available to similarly situated employees of Employer.
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4. TERMINATION OF EMPLOYMENT.
(a) BY DEATH. The Period of Employment shall terminate automatically
upon the death of Employee. Employer shall pay to Employee's beneficiaries or
estate, as appropriate, any compensation then due and owing, including payment
for accrued unused vacation, if any. Thereafter, all obligations of Employer
under this Agreement shall cease. Nothing in this Section shall affect any
entitlement of Employee's heirs to the benefits of any life insurance plan or
other applicable benefits.
(b) BY DISABILITY. If, by reason of any physical or mental
incapacity, Employee has been or will be prevented from properly performing his
duties under this Agreement for more than ninety (90) days in any one (1) year
period, then, to the extent permitted by law, Employer may terminate the Period
of Employment upon fourteen (14) days' advance written notice. Employer shall
pay Employee all compensation to which he is entitled up through the last
business day of the notice period; thereafter, all obligations of Employer under
this Agreement shall cease. Nothing in this Section shall affect Employee's
rights under any applicable Employer disability plan.
(c) EMPLOYMENT AT WILL. At any time, Employer or Employee may
terminate the Period of Employment for any reason, with or without cause, by
providing the other party thirty (30) days' advance written notice. If the
Employee terminates his employment pursuant to this Section 4(c), Employer shall
have the option, in its complete discretion, to terminate Employee immediately
without the running of the notice period, provided Employer pays Employee all
compensation due and owing through the last day actually worked, plus an amount
equal to the base salary Employee would have earned through the balance of the
above notice period or, if elected through the day upon which early termination
is elected pursuant to the foregoing sentence; thereafter, all of Employer's
obligations under this Agreement shall cease. Employer may dismiss Employee
without cause notwithstanding anything to the contrary contained in or arising
from any statements, policies, or practices of Employer, now or in the future,
relating to the employment, discipline, or termination of its employees.
(d) BY EMPLOYER FOR CAUSE. At any time, and without prior notice,
Employer may terminate Employee for Cause (as defined below). Employer shall
pay Employee all compensation then due and owing; thereafter, all of Employer's
obligations under this Agreement shall cease. Termination shall be for "Cause"
if Employee: (i) acts in bad faith and to the detriment of Employer; (ii)
refuses or fails to act in accordance with any specific direction or order of
Employer; (iii) exhibits in regard to his employment unfitness or unavailability
for service, unsatisfactory performance, misconduct, dishonesty, habitual
neglect, or incompetence; (iv) is convicted of a crime involving dishonesty,
breach of trust, or physical or emotional harm to any person; or (v) breaches
any material term of this Agreement.
(e) CHANGE IN EMPLOYER STATUS. To the extent permitted by law,
Employer, in its sole discretion, may terminate the Period of Employment (in
which case all of Employer's obligations under this Agreement shall cease after
payment of all compensation due and owing) upon any formal action of Employer's
management to terminate Employer's existence or
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otherwise wind up its affairs, to sell all or substantially all of its assets,
or to merge with or into another entity.
(f) TERMINATION OBLIGATIONS.
(i) Employee agrees that all property, including, without limitation,
all equipment, tangible Proprietary Information (as defined below), documents,
books, records, reports, notes, contracts, lists, computer disks (and other
computer-generated files and data), and copies thereof, created on any medium
and furnished to, obtained by, or prepared by Employee in the course of or
incident to his employment, belongs to Employer and shall be returned promptly
to Employer upon termination of the Period of Employment.
(ii) All benefits to which Employee is otherwise entitled shall cease
upon Employee's termination, unless explicitly continued either under this
Agreement or under any specific written policy or benefit plan of Employer.
(iii) The representations and warranties contained in this Agreement
and Employee's obligations under this Section 4(f) on Termination Obligations,
Section 5 on Proprietary Information, and Section 6 on Inventions and Ideas
shall survive the termination of the Period of Employment and the expiration of
this Agreement. Employee agrees that, after termination of the Period of
Employment and/or the expiration of this Agreement, Employee will not enter into
any agreement that conflicts with Employee's obligations under this Agreement
and will inform any subsequent employers of Employee's obligations under this
Agreement.
(iv) Following any termination of the Period of Employment, Employee
shall fully cooperate with Employer in all matters relating to the winding up of
pending work on behalf of Employer and the orderly transfer of work to other
employees of Employer. Employee shall also cooperate in the defense of any
action brought by any third party against Employer that relates in any way to
Employee's acts or omissions while employed by Employer.
5. PROPRIETARY INFORMATION.
(a) DEFINED. "Proprietary Information" is all information and any
idea in whatever form, tangible or intangible, pertaining in any manner to the
business of Employer, or any Affiliate, or its employees, clients, consultants,
or business associates, which was produced by any employee of Employer in the
course of his or her employment or otherwise produced or acquired by or on
behalf of Employer. All Proprietary Information not generally known outside of
Employer's organization, and all Proprietary Information so known only through
improper means, shall be deemed "Confidential Information." Without limiting the
foregoing definition, Proprietary and Confidential Information shall include,
but not be limited to: (i) formulas, teaching and development techniques,
processes, trade secrets, computer programs, electronic codes, inventions,
improvements, and research projects; (ii) any and all information about
Employer's customers and subscribers; (iii) information about costs, profits,
markets, and sales; (iv) business, marketing, and strategic plans; and (v)
employee personnel files and compensation information.
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(b) GENERAL RESTRICTIONS ON USE. During the Period of Employment,
Employee shall use Proprietary Information, and shall disclose Confidential
Information, only for the benefit of Employer and as is necessary to carry out
his responsibilities under this Agreement. Following termination, Employee
shall neither, directly or indirectly, use any Proprietary Information nor
disclose any Confidential Information, except as expressly and specifically
authorized in writing by Employer. The publication of any Proprietary
Information through literature or speeches must be approved in advance in
writing by Employer.
(c) LOCATION AND REPRODUCTION. Employee shall maintain at his work
station and/or any other place under his control only such Confidential
Information as he has a current "need to know." Employee shall return to the
appropriate person or location or otherwise properly dispose of Confidential
Information once that need to know no longer exists. Employee shall not make
copies of or otherwise reproduce Confidential Information unless there is a
legitimate business need for reproduction.
(d) THIRD-PARTY INFORMATION. Employee acknowledges that Employer has
received and in the future will receive from third parties their confidential
information subject to a duty on Employer's part to maintain the confidentiality
of this information and to use it only for certain limited purposes. Employee
agrees that he owes Employer and these third parties, during the Period of
Employment and thereafter, a duty to hold all such confidential information in
the strictest confidence and not to disclose or use it, except as necessary to
perform his obligations hereunder and as is consistent with Employer's agreement
with third parties.
(e) NON-INTERFERENCE. In order to avoid disruption of Employer's
business, Employee agrees that during the term of this Agreement and for two (2)
years after termination of the Period of Employment, he shall not, directly or
indirectly, (i) solicit any customer of Employer (or any Affiliate) for services
or products that compete with services or products of XOOM or its affiliates; or
(ii) solicit for employment any person employed by Employer (or any Affiliate).
(f) Employee acknowledges that employer considers the goodwill of
Paralogic Corporation a valuable asset and that as an inducement to enter into
this Agreement, Employee agrees that for a period of two years from the
Effective Date of the Merger, Employee shall not accept employment with, or
provide consulting services to, a Competing Business. For the purpose of this
Agreement, a "Competing Business" shall mean any business which:
(i) offers free chat room hosting to the general public, and
(ii) runs the chat server software on computer hardware which
is owned by such business or is dedicated for the use of such business, and
(iii) chat server software is licensed to such business, or to
a business in which employee or his spouse owns greater than a 2% share.
This section (f) shall not apply in the event that Xoom ceases to offer
free chat room hosting.
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6. INVENTIONS AND IDEAS.
(a) DEFINED; STATUTORY NOTICE. The term "Invention/Idea" includes
any and all ideas, processes, trademarks, service marks, inventions, technology,
computer hardware or software, original works of authorship, designs, formulas,
discoveries, patents, copyrights, products, and all improvements, know-how,
rights, and claims related to the foregoing that are conceived, developed, or
reduced to practice by Employee, alone or with others, during the Period of
Employment, except to the extent that California Labor Code Section 2870
lawfully prohibits the assignment of rights in such intellectual property.
Employee acknowledges that he understands that this definition is limited
by California Labor Code Section 2870, which provides:
"(a) Any provision in an employment agreement which provides that an
employee shall assign, or offer to assign, any of his or her rights in an
invention to his or her employer shall not apply to an invention that the
employee developed entirely on his or her own time without using the employer's
equipment, supplies, facilities, or trade secret information except for those
inventions that either:
(1) Relate at the time of conception or reduction to practice of the
invention to the employer's business, or actual or demonstrably anticipated
research or development of the employer; or
(2) Result from any work performed by the employee for the employer.
(b) To the extent a provision in an employment agreement purports to
require an employee to assign an invention otherwise excluded from being
required to be assigned under subdivision (a), the provision is against the
public policy of this state and is unenforceable."
Nothing in this Agreement is intended to expand the scope of protection
provided Employee by Sections 2870 through 2872 of the California Labor Code.
(b) DISCLOSURE. Employee shall maintain adequate and current written
records on the development of all Invention/Ideas and shall disclose promptly to
Employer all Invention/Ideas and relevant records, which records will remain the
sole property of Employer. Employee agrees that all information and records
pertaining to any idea, process, trademark, service xxxx, invention, technology,
computer hardware or software, original work of authorship, design, formula,
discovery, patent, copyright, product, and all improvements, know-how, rights,
and claims related to the foregoing ("Intellectual Property"), that Employee
does not believe to be an Invention/Idea, but that is conceived, developed, or
reduced to practice by Employee (alone or with others) during the Period of
Employment (or during the post-employment period set forth in Section 6(e)
below), shall be disclosed promptly to Employer (such disclosure to be received
in confidence). Employer shall examine such information to determine if in fact
the Intellectual Property is an Invention/Idea subject to this Agreement.
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(c) ASSIGNMENT. Employee agrees to, and hereby does, assign to
Employer his entire right, title, and interest (throughout the United States and
in all foreign countries), free and clear of all liens and encumbrances, in and
to each Invention/Idea, which shall be the sole property of Employer, whether or
not patentable. In the event any Invention/Idea is deemed by Employer to be
patentable or otherwise registrable, Employee shall assist Employer (at its
expense) in obtaining letters patent or other applicable registrations thereon
and shall execute all documents and do all other things necessary or proper
thereto (including testifying at Employer's expense) and to vest Employer, or
any entity or person specified by Employer, with full and perfect title thereto
or interest therein. Employee shall also take any action necessary or advisable
in connection with any continuations, renewals, or reissues thereof or in any
related proceedings or litigation. Should Employer be unable to secure
Employee's signature on any document necessary to apply for, prosecute, obtain,
or enforce any patent, copyright, or other right or protection relating to any
Invention/Idea, whether due to Employee's mental or physical incapacity or any
other cause, Employee irrevocably designates and appoints Employer and each of
its duly authorized officers and agents as Employee's agent and attorney-in-
fact, to act for and in Employee's behalf and stead and to execute and file any
such document, and to do all other lawfully permitted acts to further the
prosecution, issuance, and enforcement of patents, copyrights, or other rights
or protections with the same force and effect as if executed, delivered, and/or
done by Employee.
(d) EXCLUSIONS. To the best of Employee's knowledge, there is no
existing contract in conflict with this Agreement and there is no contract to
assign any Intellectual Property that is now in existence between Employee and
any other person or entity.
(e) POST-TERMINATION PERIOD. Because of the difficulty of establishing
when any Intellectual Property is first conceived or developed by Employee, or
whether it results from access to Confidential Information or Employer's
equipment, supplies, facilities, or data, Employee agrees that any Intellectual
Property shall be presumed to be an Invention/Idea, if reduced to practice by
Employee or with the aid of Employee within one (1) year after termination of
the Period of Employment. Employee can rebut the above presumption if he proves
that the Intellectual Property (i) was developed entirely on Employee's own time
without using Employer's equipment, supplies, facilities, or trade secret
information; (ii) was not conceived or reduced to practice during the Period of
Employment, or, if conceived or reduced to practice during this period, did not,
at the time of conception or reduction to practice, relate to Employer's
business or actual or demonstrably anticipated research or development; and
(iii) did not result from any work performed by Employee for Employer.
8. NOTICES. Any notice or other communication under this Agreement must
be in writing and shall be effective upon delivery by hand, upon facsimile
transmission to either party (but only upon receipt by the transmitting party of
a written confirmation of receipt), or three (3) business days after deposit in
the United States mail, postage prepaid, certified or registered, and addressed
to Employer or to Employee at the corresponding address or fax number below.
Employee shall be obligated to notify Employer in writing of any change in his
address. Notice of change of address shall be effective only when done in
accordance with this Section.
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Employer's Notice Address:
XOOM, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Employee's Notice Address:
Xxxxx Xxxxxxxxxxxx
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
10. INTEGRATION. This Agreement is intended to be the final, complete,
and exclusive statement of the terms of Employee's employment by Employer. This
Agreement supersedes all other prior and contemporaneous agreements and
statements, whether written or oral, express or implied, pertaining in any
manner to the employment of Employee, and it may not be contradicted by evidence
of any prior or contemporaneous statements or agreements. To the extent that
the practices, policies, or procedures of Employer, now or in the future, apply
to Employee and are inconsistent with the terms of this Agreement, the
provisions of this Agreement shall control. Any changes to this Agreement must
be in writing and approved by both parties.
11. AMENDMENTS; WAIVERS. This Agreement may not be amended except by an
instrument in writing, signed by each of the parties. No failure to exercise
and no delay in exercising any right, remedy, or power under this Agreement
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, remedy, or power under this Agreement preclude any other or further
exercise thereof, or the exercise of any other right, remedy, or power provided
herein or by law or in equity.
13. SEVERABILITY. If any provision of this Agreement, or its application
to any person, place, or circumstance, is held by an arbitrator or a court of
competent jurisdiction to be invalid, unenforceable, or void, such provision
shall be enforced to the greatest extent permitted by law, and the remainder of
this Agreement and such provision as applied to other persons, places, and
circumstances shall remain in full force and effect.
14. EMPLOYEE'S SUCCESSORS. Without the written consent of Employer,
Employee shall not assign or transfer this Agreement or any right or obligation
under this Agreement to any other person or entity. Notwithstanding the
foregoing, the terms of this Agreement and all rights of Employee hereunder
shall inure to the benefit of and be enforceable by, Employee's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and ligatees.
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15. ATTORNEYS' FEES. In any legal action, arbitration, or other
proceeding brought to enforce or interpret the terms of this Agreement, the
prevailing party shall be entitled to recover reasonable attorneys' fees and
costs.
16. INJUNCTIVE RELIEF. If Employee breaches or threatens to breach any of
the covenants in Section 5 on Proprietary Information or Section 6 on Inventions
and Ideas, the parties acknowledge and agree that the damage or imminent damage
to Employer's business or its goodwill would be irreparable and extremely
difficult to estimate, making any remedy at law or in damages inadequate.
Accordingly, Employer shall be entitled to injunctive relief against Employee in
the event of any breach or threatened breach of the above provisions by
Employee, in addition to any other relief (including damages) available to
Employer under this Agreement or under law.
17. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the law of the State of California.
18. EMPLOYEE ACKNOWLEDGMENT. Employee acknowledges that he has had the
opportunity to consult legal counsel in regard to this Agreement, that he has
read and understands this Agreement, that he is fully aware of its legal effect,
and that he has entered into it freely and voluntarily and based on his own
judgment and not on any representations or promises other than those contained
in this Agreement. Employee specifically acknowledges that he has received
notice of his statutory rights under Section 2870 of the California Labor Code,
as set forth in the above Section 6 on Inventions and Ideas.
The parties have duly executed this Agreement as of the date first written
above.
______________________________
Xxxxx Xxxxxxxxxxxx
XOOM, Inc.
By: ________________________
Its: ________________________
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EXHIBIT A
1. $120,000 a year in base salary.
2. Reporting to XOOM's CEO, Xxxxxxx Xxxxx
3. Participation in the Xoom employee stock option program with one and a half
percent of XOOM's Issued and outstanding shares or ______________________
(__________) shares of common stock at a purchase price of $0.77 per share,
vesting in equal amounts annually over four years. Seventy-five percent
(75%) of the total amount of these options will vest immediately in the
event of the sale of the company.
4. You agree to work for XOOM full-time at XOOM's San Francisco Headquarters,
focusing your efforts as XOOM's CTO for at least 50 hours per week.
5. A comprehensive benefits package that includes Two Weeks Vacation, Medical,
Dental, and Vision insurance coverage through TriNet.
ADDENDUM NO. 1
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This ADDENDUM made as of the 12th day of August, 1998 by and between XOOM, Inc.,
000 Xxxxxxxxxx Xx, Xxx Xxxxxxxxx, XX 00000 ("Xoom") and Xxxxx Xxxxxxxxxxxx, 0000
Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000 ("Employee").
BACKGROUND:
Employee and XOOM entered into an Employment Agreement made the 10th day of
March 1998 between XOOM Inc. and Xxxxx Xxxxxxxxxxxx.
Employee and XOOM wish to amend the Agreement in accordance with the terms and
conditions set out below.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the
parties hereto amend the agreement as follows:
1. Period of Employment. Addendum to this paragraph: "Employee will be
eligible for an annual review of this agreement no later than one year from the
date of this agreement."
2b. Position and Responsibilities. Addendum to this paragraph: "Employee may
serve as a director or as a member of the advisory board of any company provided
that he complies with the restrictions set forth in Section 1 and Section 4."
4. Termination of Employment Substitute the paragraphs below for paragraphs (a)
through (e) in the original agreement.
(a) By Employer Not For Cause. Except as modified in section 3(c), below, at
any time, XOOM may terminate Employee's employment for any reason, with or
without Cause, by providing ninety (90) days' advance written notice, and
shall have the option, in its discretion, to terminate Employee's
employment at any time prior to the end of such notice period, provided
XOOM pays Employee an amount equal to the base compensation Employee would
have earned through the balance of the above notice period plus benefits,
thereafter all of XOOM's obligations under this Agreement shall cease. In
the event that XOOM exercises its right to terminate Employee's employment
upon notice under the terms of this subsection, Employee shall be
immediately entitled to exercise one hundred percent (100%) of any stock
options granted by XOOM that had not previously vested. If the stock of
XOOM or any parent company is publicly traded, Employee's exercise of
stock options subject to vesting under this subsection must be made within
four (4) months of the date upon which Employee was informed of XOOM's
intent to terminate his employment.
In the event XOOM's stock is not publicly traded, Employee's exercise of
stock options must be made within twelve (12) months of the date upon
which Employee was informed of XOOM's intent to terminate his employment.
XOOM may dismiss Employee with or without cause notwithstanding anything
to the contrary contained in or arising from any statements, policies, or
practices of XOOM relating to employment, discipline, or termination.
(b) By Employer For Cause. Except as modified in section 3(c), below, at any
time, XOOM may terminate Employee for Cause (as defined below). XOOM shall
pay Employee all compensation then due; thereafter, all of XOOM's
obligations under this Agreement shall cease. "Cause" shall include:
1. unsatisfactory performance, misconduct, failure to follow
policies or procedures, material breach of this Agreement, and
excessive absenteeism. XOOM shall provide at least one
appropriate written warning of specific deficiencies and provide
a reasonable period not to exceed thirty days for Employee to
cure any such deficiencies.
2. to the extent permitted by law, unavailability for work due to
disability for more than ninety (90) days in any one (1) year
period.
3. Committing a felony, an act of fraud against or the willful
misappropriation of property belonging to XOOM.
4. Conviction in a court of competent jurisdiction of a felony or
misdemeanor which adversely and materially affects the ability of
the executive to perform his duties, obligations and
responsibilities herein or the good name, goodwill or reputation
of XOOM.
(c) By Employer Following Change in Control or Corporate Transaction.
Notwithstanding the foregoing, in the event that Employee's employment is
involuntarily terminated by XOOM, or any successor or assign of XOOM, for
any reason, with or without cause (as defined above), following a Change
in Control or Corporate Transaction or the execution of a letter of intent
that, by its terms, ultimately results in a Change in Control or Corporate
Transaction, as those terms are defined in the XOOM, Inc. 1998 Stock
Incentive Plan, which is incorporated by reference herein, Employee shall
be entitled to payment of an amount equal to six months (6) month's base
compensation plus benefits; thereafter, all obligations of XOOM, or any
successor or assign of XOOM, under this Agreement shall cease. In the
event that Employee's employment is terminated under the terms of this
subsection, Employee shall be immediately entitled to exercise any and all
stock options granted by XOOM that had not previously vested. In the event
the company effecting the change in control or XOOM is publicly traded,
any exercise of Employee's stock options subject to vesting under this
subsection must be made within four (4) months of the date upon which
Employee was informed by XOOM, or any successor or assign of XOOM, of its
intent to terminate his employment, whether such termination is with or
without notice. If the company effecting the change in control or XOOM is
not publicly traded, Employee may have up to twelve (12) months from the
date upon which Employee was informed by XOOM, or any successor or assign
of XOOM, of its intent to terminate his employment, to exercise his
options subject to vesting under this subsection.
(d) By Employee. At any time, Employee may terminate his employment for any
reason, with or without cause, by providing XOOM thirty (30) days' advance
written notice. XOOM shall have the option, in its complete discretion, to
make Employee's termination effective at any time prior to the end of such
notice period, provided XOOM pays Employee all compensation due and owing
through the last day actually worked, plus an amount equal to the base
salary Employee would have earned through the balance of the above notice
period, not to exceed thirty (30) days; thereafter, all of XOOM's
obligations under this Agreement shall cease.
IN WITNESS WHEREOF the parties represent that they have the authority to enter
into and have executed this Addendum as of the day and year first above written.
XOOM, INC. Employee
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxxx Xxxxxxxxxxxx
----------------- ----------------------
Name: Xxxxxxx Xxxxx Name: Xxxxx Xxxxxxxxxxxx
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Its: President/CEO Its: CTO
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