EXHIBIT 10.76
AGREEMENT AND COMPLETE RELEASE
WHEREAS Xxxxx X. Xxxxxxx-Xxxx (hereinafter "Xxxxxxx-Xxxx") and xxxxxx.xxx,
Incorporated (hereinafter "xxxxxx.xxx") wish to end the employment relationship
between them and to fully and finally resolve all differences between them, the
following constitutes their AGREEMENT:
In exchange for the mutual covenants herein expressed, the parties agree as
follows:
1. Xxxxxxx-Xxxx shall resign from her employment effective on July 5, 2000
(the "Termination Effective Date") and xxxxxx.xxx shall pay to Xxxxxxx-Xxxx
on the next regularly scheduled pay day all unpaid base salary, bonuses,
and accrued but unused vacation which have been earned by Xxxxxxx-Xxxx
prior to the Termination Effective Date. The Employment Agreement of
January 27, 1999, between Xxxxxxx-Xxxx and xxxxxx.xxx shall terminate as of
July 5, 2000. (A copy of the Employment Agreement is attached hereto as
Exhibit A.) Xxxxxxx-Xxxx'x resignation shall be deemed a termination of her
employment without cause for purposes of all stock option exercise periods.
Notwithstanding the termination of the Employment Agreement, Xxxxxxx-Xxxx
shall remain bound by her promises regarding nondisclosure and return of
confidential information, assignment of intellectual property, non-
competition, and non-solicitation as set forth in Article V of the
Employment Agreement; provided, however, as to the provisions regarding
non-competition in Section 5.4 of the Employment Agreement, that the
entities regarded as "Competing Businesses" are hereby limited to the
following: Medica Logic/Medscape, Inc., Discover Health, Xxxxxxxxxxxxx.xxx,
Healtheon/WebMD/onhealth, and Mediconsult.
2. In consideration for this Agreement, and following the expiration of the
revocation period described below without Xxxxxxx-Xxxx having exercised her
revocation right, xxxxxx.xxx will: (a) pursuant to the xxxxxx.xxx, Inc.
Severance Plan For Select Employees and as a vested, accrued and
irrevocable benefit thereunder provided that Xxxxxxx-Xxxx does not breach
this Agreement, pay Xxxxxxx-Xxxx the gross sum of $150,000.00, less all
applicable withholdings, in twelve monthly installments beginning on the
first regularly scheduled pay day following the expiration of the
revocation period described below; (b) allow Xxxxxxx-Xxxx to keep her
laptop computer and cell phone; (c) pay Xxxxxxx-Xxxx'x COBRA premiums for
twelve months, unless her entitlement to COBRA continuation coverage
terminates earlier; (d) have amended all Xxxxxxx-Xxxx'x outstanding stock
option agreements such that the shares subject to the options are fully
vested and the options are immediately exercisable following the expiration
of the revocation period described below (such amendments are attached as
Exhibits B, C, D, E, and F hereto); and (e) have granted a new stock option
to purchase 50,000 shares at an option price of $1.63 per share (such stock
option agreement is attached as Exhibit G hereto).
3. In consideration for this Agreement, Xxxxxxx-Xxxx will: (a) provide her
services as an independent contractor-consultant in the capacity of Acting
Chief Financial Officer to assist xxxxxx.xxx in the transition to a new
Chief Financial Officer as provided in Exhibit H; and (b) abide by her
promises herein.
4. Xxxxxxx-Xxxx understands, agrees, and expressly represents that the
consideration recited in the foregoing Paragraph 2 is separate from and
additional to any payments or benefits to which she was already entitled by
virtue of her services to xxxxxx.xxx and to which she has no legal right.
Xxxxxxx-Xxxx understands, agrees, and expressly represents that, apart from
the consulting arrangement described above in Paragraph 3 and Exhibit H,
she will be entitled to no further compensation or payments of any type
from xxxxxx.xxx except as provided for herein and pursuant to her stock
option agreements as amended herein.
5. Apart from the consulting arrangement described above in Xxxxxxxxx 0,
Xxxxxxx-Xxxx XXXXXX AND DISCLAIMS any claim or right she may have to be
engaged or employed by xxxxxx.xxx or any of its affiliate companies at any
time in the future and promises not to seek or demand future engagement or
employment with xxxxxx.xxx or any of its affiliate companies, it being
agreed, however, that this provision shall not preclude xxxxxx.xxx from
requesting on its initiative and in its sole discretion that Xxxxxxx-Xxxx
be employed by it, or subsequently employing Xxxxxxx-Xxxx, in the future.
Nothing herein shall require Xxxxxxx-Xxxx to accept any such request to
reestablish employment.
6. Xxxxxxx-Xxxx represents and affirms that within two (2) business days of
the termination of her consulting arrangement with xxxxxx.xxx she will
return any and all xxxxxx.xxx property she may have had, including but not
limited to confidential information as defined in the Employment Agreement
but excluding the cell phone and laptop computer conveyed to Xxxxxxx-Xxxx
as provided in Paragraph 2.
7. Xxxxxxx-Xxxx agrees to keep both the existence and the terms of this
Agreement confidential, and not to disclose any information regarding this
Agreement to anyone other than her attorney and spouse (if any) who shall
be informed of and bound by this confidentiality provision. To the extent
necessary Xxxxxxx-Xxxx may disclose this Agreement to her tax advisors and
pursuant to any subpoena or as otherwise required by law.
8. Xxxxxxx-Xxxx does, for herself and her heirs, agents, executors,
administrators, and assigns hereby RELEASE and FOREVER DISCHARGE xxxxxx.xxx
and its directors, officers, employees, agents, attorneys, successors,
predecessors, assigns, and affiliated companies (collectively "Releasees")
from any and all claims, actions, and causes of action of whatever kind or
nature, which she may now have or ever may have had against the Releasees
or any of them, whether known or unknown to her, such as may have arisen in
whole or in part at any time prior to or on the date of execution of this
Agreement. This includes, but is not
limited to, any claims arising out of any contract, express or implied, any
covenant of good faith and fair dealing, express or implied, any tort
(whether intentional or negligent, including claims arising out of the
NEGLIGENCE OR GROSS NEGLIGENCE of any person released in this Agreement),
and any federal, state, or other governmental statute, regulation, or
ordinance relating to employment discrimination, termination of employment,
or payment of wages or provision of benefits, including without limitation
Title VII of the Civil Rights Act of 1964 as amended, the Civil Rights Act
of 1991, the Age Discrimination in Employment Act as amended, the Americans
with Disabilities Act, the Employee Retirement Income Security Act, the
Family and Medical Leave Act, the Fair Labor Standards Act, the Texas
Commission on Human Rights Act, the Texas Payday Law, and the Texas
Workers' Compensation Act. Xxxxxxx-Xxxx and xxxxxx.xxx agree that by this
Agreement, Xxxxxxx-Xxxx is not releasing any claims she may have under the
Age Discrimination in Employment Act that may arise after this Agreement
becomes effective (i.e., after the revocation period described in Paragraph
9 elapses without Xxxxxxx-Xxxx having exercised her revocation right).
Nothing herein shall be construed as a release of any of Xxxxxxx-Xxxx'x
claims or rights under this Agreement and Complete Release or any agreement
executed contemporaneously herewith.
9. Xxxxxxx-Xxxx has a maximum of twenty-one (21) days from June 28, 2000, in
which to review and consider this Agreement before signing it, and may use
as much or as little of that period as she wishes. After Xxxxxxx-Xxxx signs
this Agreement, Xxxxxxx-Xxxx has seven (7) days in which to revoke the
Agreement. Any such revocation will not be effective unless Xxxxxxx-Xxxx
delivers a written notice of such revocation to xxxxxx.xxx c/o Xxxxxx
Xxxxxxx, President and CEO, 0000 Xxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxx
00000, no later than the close of business on the seventh day after
Xxxxxxx-Xxxx signs this Agreement.
10. xxxxxx.xxx does for itself and its directors, officers, employees, agents,
attorneys, successors, predecessors, assigns, and affiliated companies,
does hereby RELEASE and FOREVER DISCHARGE Xxxxxxx-Xxxx from any and all
claims, actions, and causes of action of whatever kind or nature, which
they, or any of them, may now have or ever may have had against Xxxxxxx-
Xxxx whether known or unknown to them, such as may have arisen in whole or
part at any time prior to or on the date of execution of this Agreement.
This Release includes, but is not limited to, any claims arising out of any
contract, express or implied, any covenant of good faith and fair dealing,
express or implied, any tort (whether intentional or negligent, including
claims arising out of the NEGLIGENCE OR GROSS NEGLIGENCE of any person
released in this Agreement), and any federal, state, or other governmental
statute, regulation, or ordinance of any kind whatsoever. Nothing herein
shall be construed as a release of any of xxxxxx.xxx's claims or rights
under this Agreement and Complete Release or any agreement executed
contemporaneously herewith.
11. The parties hereto expressly PROMISE NOT TO XXX OR INSTITUTE OTHER LEGAL
PROCEEDINGS on the basis of any claims, actions, or causes of action that
are being released by this Agreement. Each party understands and agrees
that if she or it breaches this promise and files a lawsuit or institutes
other legal proceedings with any court or governmental agency related to
the claims hereby released, she or it will pay for all costs incurred by
the released party or parties, or any of them, including attorneys' fees.
12. Each party hereto understands and agrees that by entering into this
Agreement, neither Xxxxxxx-Xxxx nor xxxxxx.xxx is admitting any liability
or wrongdoing. Rather, each party understands and agrees that this
Agreement is merely to settle any differences between them arising out of
Xxxxxxx-Xxxx'x relationship with xxxxxx.xxx and the termination of that
relationship.
13. Xxxxxxx-Xxxx agrees that she will not knowingly, directly or indirectly, in
any individual or representative capacity whatsoever, make any statement,
oral or written, or perform any act or omission which is or could be
detrimental in any material respect to the reputation or goodwill of
xxxxxx.xxx or any other person or entity released herein, except as may be
required by law, court order, government agency request or subpoena, or to
defend herself in connection with a legal proceeding. Xxxxxxx-Xxxx further
agrees she will not voluntarily participate in, or aid or encourage any
other party in connection with, any lawsuit or proceeding of any kind
brought or asserted by any person or entity against xxxxxx.xxx or any other
person or entity released herein.
14. xxxxxx.xxx agrees that it will not knowingly, directly or indirectly, make
any statement, oral or written, or perform any act or omission which is or
could be detrimental in any material respect to the reputation or goodwill
of Xxxxxxx-Xxxx, except as may be required by law, court order, government
agency request or subpoena, or to defend itself in connection with a legal
proceeding. xxxxxx.xxx's obligations under this paragraph shall be limited
to statements made by any officer or director who was an officer or
director of xxxxxx.xxx at the time the statement was made or to anyone
acting on behalf of the company. In response to inquiries from prospective
employers, xxxxxx.xxx will provide nothing less than a neutral letter of
reference.
15. xxxxxx.xxx and Xxxxxxx-Xxxx agree that press releases regarding Xxxxxxx-
Xxxx'x resignation will be mutually acceptable.
16. Xxxxxxx-Xxxx hereby agrees that she is solely responsible for all federal,
state, and local tax obligations, if any, including, but not limited to,
all reporting and payment obligations that may arise as a consequence of
this Agreement. Xxxxxxx-Xxxx acknowledges that xxxxxx.xxx and the other
persons or entities released herein make no representations regarding the
tax treatment or consequences of such benefit(s). Xxxxxxx-Xxxx agrees to
indemnify and hold xxxxxx.xxx and the other persons or entities released
herein, or any of them,
harmless from and against any and all loss, cost, damage, or expense,
including, without limitation, attorneys' fees, penalties or interest,
incurred by xxxxxx.xxx and the other persons or entities released herein,
or any of them, arising out of the tax treatment of the benefit(s) received
by Xxxxxxx-Xxxx as a result of her employment with xxxxxx.xxx, her stock
options, her services as a consultant, or this Agreement.
17. Xxxxxxx-Xxxx and xxxxxx.xxx agree that any dispute or claim relating to,
arising from, or connected in any manner with this Agreement--except for
claims concerning Xxxxxxx-Xxxx'x promises regarding nondisclosure and
return of confidential information, assignment of intellectual property,
non-competition, and non-solicitation as set forth in Article V of the
Employment Agreement--exclusively shall be resolved through final and
binding arbitration. Claims concerning Xxxxxxx-Xxxx'x promises regarding
nondisclosure and return of confidential information, assignment of
intellectual property, non-competition, and non-solicitation as set forth
in Article V of the Employment Agreement may be submitted to arbitration
upon mutual consent of the parties. The arbitration shall proceed in accord
with the National Rules for the Resolution of Employment Disputes of the
American Arbitration Association ("AAA") in effect at the time the claim or
dispute arose, unless other rules are agreed upon by the parties. The
arbitration shall be conducted in Austin, Texas. The arbitrator shall have
jurisdiction to determine any claim, including the arbitrability of any
claim, submitted to her or him. The arbitrator may grant any relief
authorized by law for any properly established claim. Prior to the hearing,
the AAA exclusively shall have the authority to determine and allocate
filing and administrative fees and arbitrator's hearing and study fees
between the parties. The arbitrator may reallocate the pre-hearing fees,
costs, and expenses incurred by the parties in any final arbitration award
in accordance with Paragraph 11. The interpretation and enforceability of
this Paragraph of this Agreement exclusively shall be governed and
construed in accord with the United States Federal Arbitration Act, 9
U.S.C. (S)1, et. seq.
18. This Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all other agreements
between the parties with respect to the subject matter hereof. No waiver,
amendment, or modification of this Agreement shall be valid unless in
writing and signed by each of the parties.
19. The provisions of this Agreement are severable. If any provision is held to
be invalid or unenforceable, it shall not affect the validity or the
enforceability of any other provision.
20. This Agreement shall be interpreted and enforced under the laws of the
state of Texas.
[SIGNATURE PAGE FOLLOWS]
XXXXXXX-XXXX UNDERSTANDS THAT SHE HAS THE RIGHT TO DISCUSS ALL ASPECTS OF
THIS AGREEMENT AND COMPLETE RELEASE ("AGREEMENT") WITH AN ATTORNEY OF HER
CHOICE. BY HER SIGNATURE BELOW, XXXXXXX-XXXX AGREES THAT SHE HAS EXERCISED THIS
RIGHT TO THE EXTENT SHE DESIRED, THAT SHE HAD A SUFFICIENT PERIOD OF TIME TO
REVIEW THIS AGREEMENT, THAT SHE FULLY UNDERSTANDS THIS AGREEMENT, AND THAT THIS
AGREEMENT IS MADE KNOWINGLY AND VOLUNTARILY.
IN WITNESS THEREOF, the parties have affixed their signatures in the spaces
provided on this 5th day of July, 2000.
xxxxxx.xxx, Inc. Xxxxx X. Xxxxxxx-Xxxx, An Individual
BY: /s/ Xxxxxx Xxxxxxx /s/ Xxxxx X. Xxxxxxx-Xxxx
------------------ -------------------------
Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
STATE OF TEXAS )
) ss.
COUNTY OF XXXXXX )
BEFORE ME, the undersigned notary public, on this day personally appeared
XXXXX X. XXXXXXX-XXXX, known to me to be the person who executed the foregoing
instrument, and acknowledged to me that she executed the same for the purposes
and consideration therein expressed.
GIVEN under my hand and seal of office, this 6th day of July, 2000.
/s/ Xxxxxx Xxxxxxxx
-------------------
Notary Public in and for the State of Texas
EXHIBIT B THRU H
AMENDMENT TO OCTOBER 26, 1998
EMPOWER HEALTH CORPORATION INCENTIVE STOCK OPTION AGREEMENT
FOR XXXXX XXXXXXX-XXXX
THIS AMENDMENT ("Amendment") is entered into by and between Xxxxx X.
Xxxxxxx-Xxxx ("Employee") and the Compensation Committee (the "Committee"),
effective as of July 5, 2000, the date prior to the date Employee's employment
with xxxxxx.xxx, Inc. (the "Company") is terminated (the "Effective Date").
WHEREAS, Employee and the Company are parties to the Empower Health
Corporation Incentive Stock Option Agreement with a date of grant of October 26,
1998 (the "Agreement"), granted pursuant to the Empower Health Corporation
Amended and Restated 1997 Stock Option Plan (the "Plan"); and
WHEREAS, the Committee has been appointed pursuant to Section 2 of the
Plan; and
WHEREAS, pursuant to Section 4(B) of the Plan, the Committee may change the
vesting schedule of any outstanding option; and
WHEREAS, the Committee and Employee now desire to amend the Agreement;
NOW, THEREFORE, for and in consideration of the premises and the mutual
benefits to the parties arising out of this Amendment, the receipt and
sufficiency of which are hereby acknowledged by the parties, the Committee and
Employee agree that the Agreement shall be amended as follows:
1. As of the Effective Date, Section 3 of the Agreement shall be amended by
adding the following provision:
Notwithstanding the foregoing, in the event that Optionee resigns from
employment with the Company, all shares subject to this Option shall vest
immediately and such Option shall be fully exercisable as of the expiration
of the revocation right contained in the agreement between Optionee and the
Company that governs such resignation.
2. As amended hereby, the Agreement is ratified and reaffirmed.
EXECUTED this ____ day of _____________________, 2000.
SECRETARY FOR BOARD OF DIRECTORS MEETING
/s/ Xxxxxx Xxxxxxx
------------------
XXXXX X. XXXXXXX-XXXX
/s/ Xxxxx X. Xxxxxxx-Xxxx
-------------------------
EXHIBIT C
AMENDMENT TO FEBRUARY 24, 1999
XXXXXX.XXX, INC. 1999 EMPLOYEE BONUS AGREEMENT
FOR XXXXX XXXXXXX-XXXX
THIS AMENDMENT ("Amendment") is entered into by and between Xxxxx X.
Xxxxxxx-Xxxx ("Employee") and the Compensation Committee (the "Committee"),
effective as of July 5, 2000, the date prior to the date Employee's employment
with xxxxxx.xxx, Inc. (the "Company") is terminated (the "Effective Date").
WHEREAS, Employee and the Company are parties to the xxxxxx.xxx, Inc.
1999 Employee Bonus Agreement with a date of grant of February 24, 1999 (the
"Agreement"); and
WHEREAS, the Company and Employee now desire to amend the vesting
schedule of the option subject to the Agreement;
NOW, THEREFORE, for and in consideration of the premises and the mutual
benefits to the parties arising out of this Amendment, the receipt and
sufficiency of which are hereby acknowledged by the parties, the Company and
Employee agree that the Agreement shall be amended as follows:
1. As of the Effective Date, Section A.1 of the Agreement shall be amended
by adding the following provision:
Notwithstanding the foregoing, in the event that Optionee resigns from
employment with the Company, all shares subject to this Option shall vest
immediately and such Option shall be fully exercisable as of the expiration
of the revocation right contained in the agreement between Optionee and the
Company that governs such resignation.
2. As of the Effective Date, the phrase "Section 11 below" in Section B.8 of
the Agreement shall be replaced by the phrase "Section 10 below."
3. As amended hereby, the Agreement is ratified and reaffirmed.
4. Notwithstanding any provision in this Amendment to the contrary, in the
event that Optionee exercises the revocation right contained in the agreement
between Optionee and the Company that governs Optionee's resignation, this
Amendment shall be null, void, and of no effect.
EXECUTED this ____ day of ___________________, 2000.
SECRETARY FOR BOARD OF DIRECTORS MEETING
/s/ Xxxxxx Xxxxxxx
------------------
XXXXX X. XXXXXXX-XXXX
/s/ Xxxxx X. Xxxxxxx-Xxxx
-------------------------
EXHIBIT D
AMENDMENT TO JUNE 4, 1999
XXXXXX.XXX, INC. INCENTIVE STOCK OPTION AGREEMENT
FOR XXXXX XXXXXXX-XXXX
THIS AMENDMENT ("Amendment") is entered into by and between Xxxxx X.
Xxxxxxx-Xxxx ("Employee") and the Compensation Committee (the "Committee"),
effective as of July 5, 2000, the date prior to the date Employee's employment
with xxxxxx.xxx, Inc. (the "Company") is terminated (the "Effective Date").
WHEREAS, Employee and the Company are parties to the xxxxxx.xxx, Inc.
Incentive Stock Option Agreement with a date of grant of June 4, 1999 (the
"Agreement"), granted pursuant to the 1999 Equity Participation Plan of
xxxxxx.xxx, Inc. (the "Plan"); and
WHEREAS, the Committee has been appointed pursuant to Section 10.1 of the
Plan; and
WHEREAS, pursuant to Section 5.3(a) of the Plan, the Committee may
accelerate the period during which an option vests; and
WHEREAS, the Committee and Employee now desire to amend the Agreement;
NOW, THEREFORE, for and in consideration of the premises and the mutual
benefits to the parties arising out of this Amendment, the receipt and
sufficiency of which are hereby acknowledged by the parties, the Committee and
Employee agree that the Agreement shall be amended as follows:
1. As of the Effective Date, Section 3 of the Agreement shall be amended by
adding the following provision:
Notwithstanding the foregoing, in the event that Optionee resigns from
employment with the Company, all shares subject to this Option shall vest
immediately and such Option shall be fully exercisable as of the expiration
of the revocation right contained in the agreement between Optionee and the
Company that governs such resignation.
2. As amended hereby, the Agreement is ratified and reaffirmed.
3. Notwithstanding any provision in this Amendment to the contrary, in the
event that Optionee exercises the revocation right contained in the agreement
between Optionee and the Company that governs Optionee's resignation, this
Amendment shall be null, void, and of no effect.
EXECUTED this ____ day of __________________, 2000.
SECRETARY FOR BOARD OF DIRECTORS MEETING
/s/ Xxxxxx Xxxxxxx
------------------
XXXXX X. XXXXXXX-XXXX
/s/ Xxxxx X. Xxxxxxx-Xxxx
-------------------------
EXHIBIT E
AMENDMENT TO APRIL 28, 2000
XXXXXX.XXX, INC. RETENTION BONUS GRANT
FOR XXXXX XXXXXXX-XXXX
THIS AMENDMENT ("Amendment") is entered into by and between Xxxxx X.
Xxxxxxx-Xxxx ("Employee") and the Compensation Committee (the "Committee"),
effective as of July 5, 2000, the date prior to the date Employee's employment
with xxxxxx.xxx, Inc. (the "Company") is terminated (the "Effective Date").
WHEREAS, Employee and the Company are parties to the Retention Bonus Grant
with a date of grant of April 28, 2000 (the "Agreement"); and
WHEREAS, the Company and Employee now desire to amend the vesting schedule
of the option subject to the Agreement;
NOW, THEREFORE, for and in consideration of the premises and the mutual
benefits to the parties arising out of this Amendment, the receipt and
sufficiency of which are hereby acknowledged by the parties, the Company and
Employee agree that the Agreement shall be amended as follows:
1. As of the Effective Date, the Agreement shall be amended by adding the
following provision:
Notwithstanding anything to the contrary herein, in the event that Optionee
resigns from employment with the Company, all shares subject to this Option
shall vest immediately and such Option shall be fully exercisable as of the
expiration of the revocation right contained in the agreement between
Optionee and the Company that governs such resignation.
2. As amended hereby, the Agreement is ratified and reaffirmed.
3. Notwithstanding any provision in this Amendment to the contrary, in the
event that Optionee exercises the revocation right contained in the agreement
between Optionee and the Company that governs Optionee's resignation, this
Amendment shall be null, void, and of no effect.
EXECUTED this ____ day of ___________________, 2000.
SECRETARY FOR BOARD OF DIRECTORS MEETING
/s/ Xxxxxx Xxxxxxx
------------------
XXXXX X. XXXXXXX-XXXX
/s/ Xxxxx X. Xxxxxxx-Xxxx
-------------------------
EXHIBIT F
AMENDMENT TO JUNE 5, 2000
XXXXXX.XXX, INC. RETENTION BONUS GRANT
FOR XXXXX XXXXXXX-XXXX
THIS AMENDMENT ("Amendment") is entered into by and between Xxxxx X.
Xxxxxxx-Xxxx ("Employee") and the Compensation Committee (the "Committee"),
effective as of July 5, 2000, the date prior to the date Employee's employment
with xxxxxx.xxx, Inc. (the "Company") is terminated (the "Effective Date").
WHEREAS, Employee and the Company are parties to the Retention Bonus Grant
with a date of grant of June 5, 2000 (the "Agreement"); and
WHEREAS, the Company and Employee now desire to amend the vesting schedule
of the option subject to the Agreement;
NOW, THEREFORE, for and in consideration of the premises and the mutual
benefits to the parties arising out of this Amendment, the receipt and
sufficiency of which are hereby acknowledged by the parties, the Company and
Employee agree that the Agreement shall be amended as follows:
1. As of the Effective Date, the Agreement shall be amended by adding the
following provision:
Notwithstanding anything to the contrary herein, in the event that Optionee
resigns from employment with the Company, all shares subject to this Option
shall vest immediately and such Option shall be fully exercisable as of the
expiration of the revocation right contained in the agreement between
Optionee and the Company that governs such resignation.
2. As amended hereby, the Agreement is ratified and reaffirmed.
3. Notwithstanding any provision in this Amendment to the contrary, in the
event that Optionee exercises the revocation right contained in the agreement
between Optionee and the Company that governs Optionee's resignation, this
Amendment shall be null, void, and of no effect.
EXECUTED this ____ day of ____________, 2000.
SECRETARY FOR BOARD OF DIRECTORS MEETING
/s/ Xxxxxx Xxxxxxx
------------------
XXXXX X. XXXXXXX-XXXX
/s/ Xxxxx X. Xxxxxxx-Xxxx
-------------------------
EXHIBIT G
xxxxxx.xxx, Inc.
NONQUALIFIED STOCK OPTION AGREEMENT
NAME OF OPTIONEE: Xxxxx Xxxxxxx-Xxxx
NUMBER OF OPTION SHARES: 50,000
OPTION PRICE PER SHARE: $ 1.63
VESTING COMMENCEMENT DATE: June 22, 2000
DATE OF GRANT: June 22, 2000
EXPIRATION DATE: The close of business on the
business day next preceding the
date 24 months after the Date of
Grant.
THIS NONQUALIFIED STOCK OPTION AGREEMENT is granted on the above date
(the "Date of Grant") by xxxxxx.xxx, Inc., a Delaware corporation (the
"Company"), to the person named above (the "Optionee"), upon the following terms
and conditions and pursuant and subject to the 1999 Equity Participation Plan of
xxxxxx.xxx, Inc., as amended and restated (the "Plan").
1. GRANT OF OPTION. The Company grants to the Optionee an option to
purchase, on the terms and conditions hereinafter set forth, the
number of shares specified above (the "Option Shares" or "Shares")
of the Company's Common Stock, par value $0.001 per share, at the
option price per share specified above.
2. PERIOD OF OPTION. This Option will expire at the close of business
on the Expiration Date, except that: (a) if the Optionee dies on or
before the Expiration Date, this Option shall expire as provided in
Section 9 below; and (b) if the Optionee ceases on or before the
Expiration Date to be an Employee, Consultant, or Director because
her employment or service is terminated by the Company for cause,
this Option shall expire upon such cessation, unless the Optionee's
employment or service is terminated because of reasons involving
moral turpitude, in which event this Option shall expire at the time
Optionee receives notice that her employment or service is or will
be terminated. The term "Employee," as used in this Option, means
any executive and other salaried or non-salaried employee of the
Company and/or one or more of its subsidiary corporations. The
term "Consultant" shall mean any person who is engaged by the
Company and/or one or more of its subsidiary corporations to render
consulting or advisory services and is compensated for such
services. The term "Director" shall mean any director of the Company
whether compensated for such services or not.
3. EXERCISE. Subject to the other provisions of this Option, the Shares
subject to this Option shall vest according to the following
schedule:
As of the expiration of the revocation right contained in the agreement
between Optionee and the Company that governs Optionee's resignation, 100% of
the Shares subject to this Option shall vest and such Option shall be fully
exercisable. If Optionee revokes such agreement, no Shares subject to this
Option shall vest.
4. CERTAIN LIMITATIONS ON EXERCISE. No fractional shares may be
purchased hereunder.
5. EXPIRATION OF OPTION. Upon the expiration of this Option, none of
the Option Shares may be purchased hereunder.
6. METHOD OF EXERCISE OF OPTION. During the term of this Option,
Optionee may exercise her option, from time to time, to the extent
then exercisable, by written notice directed to the Company at its
principal place of business. Such written notice shall specify the
number of Option Shares she is purchasing pursuant to this Agreement
and the method of payment for such shares, and shall be accompanied
by the original of this Agreement so that an appropriate endorsement
can be made hereto to reflect the Option Shares so purchased and to
reduce accordingly the number of Option Shares thereafter to be
subject to the terms hereof. The Option Price for the number of
Option Shares being purchased shall be payable as follows: (a) in
cash, (b) by delivery of certificates representing shares of Common
Stock having an equivalent fair market value or by arranging with
the Company and Optionee's broker to deliver the appropriate Option
Price from the concurrent market sale of the acquired shares, or (c)
a combination of any of the foregoing. Upon receipt of such written
notice, the original hereof, and full payment of the Option Price
for the number of Option Shares being purchased, the Company shall
make delivery of a certificate representing the number of such
shares purchased as promptly as possible thereafter, provided that,
if any law or regulation requires the Company to take any action
with respect to such shares specified in such notice before the
issuance thereof, then the sale, issuance, and delivery of such
shares shall be deferred for the period necessary to take such
action.
Optionee's withholding tax due upon exercise of this Option may be
satisfied either by a cash payment or the retention from the exercise of a
number of shares of
Common Stock with a fair market value equal to the required withholding tax, as
the Optionee and Company may agree. If Optionee is subject to the reporting and
other provisions of Section 16 under the Exchange Act, the election of a partial
cash settlement of the Option in order to satisfy the tax withholding
requirements upon exercise of this option may be made only during a ten-day
"window" period each fiscal quarter beginning on the third business day
following the date of release of the Company's financial data for the quarter
and ending on the twelfth business day following such date, and shall be subject
to the approval of the Company.
7. NON-TRANSFERABILITY OF OPTION. This Option shall be exercisable,
during the lifetime of the Optionee, only by her. This Option shall
not be transferable by the Optionee otherwise than by Will or the
laws of descent and distribution unless approval in writing is
obtained from the committee for administration of Company Options
("Committee Approval"). Committee Approval shall only be available
for a transfer to a charitable organization, a family trust, or a
member of the Optionee's immediate family. Upon any other attempt to
transfer, assign, pledge, or otherwise dispose of this Option,
except as expressly permitted in this Section 7, this Option shall
immediately terminate and become null and void.
8. TERMINATION OF EMPLOYMENT OR SERVICE RELATIONSHIP. This Option
confers no right upon the Optionee with respect to the continuation
of her employment or service relationship with the Company or any of
its subsidiaries, and shall not interfere with the right of the
Company or its subsidiaries to terminate her employment or service
relationship at any time.
9. DEATH OF OPTIONEE. If the Optionee dies, this Option may be
exercised (to the extent exercisable at Optionee's date of death) at
any time during the year next succeeding such death, but in no event
after the Expiration Date, by the person or persons to whom her
rights hereunder shall have passed by Will or by laws of descent and
distribution.
10. ADJUSTMENT UPON OCCURRENCE OF CERTAIN EVENTS. The number of shares
subject to this Option and the exercise price per share are subject
to appropriate adjustment in the manner provided by the Plan for
stock splits, stock dividends, recapitalization, or similar events
that would change the capital structure of the Company. No
adjustment, however, shall result in or entitle the Optionee to the
issuance of fractional shares.
11. NOTICE. Any notice hereunder by the Optionee shall be given to the
Company in writing, and such notice and any payment by the Optionee
hereunder shall be deemed duly given or made only upon receipt
thereof at the Company's office at Austin, Texas, or at such other
address as the Company may designate by notice to the Optionee. Any
notice or other communication to the Optionee hereunder shall be in
writing, and any
communication and any delivery to the Optionee hereunder shall be
deemed duly given or made if mailed, delivered, or made to the
Optionee at such address as the Optionee may have on file with the
Company or in care of the Company at its principal office in
Austin, Texas.
12. CONSTRUCTION. The construction of this Option is vested in the
Board of Directors of the Company or the Compensation and Stock
Option Committee of the Company, if the Board shall have delegated
such responsibility to such Committee, whose construction shall be
final and conclusive.
13. MISCELLANEOUS. Optionee shall not be deemed for any purpose to be a
stockholder of the Company with respect to any shares subject to
this Option except to the extent that this Option shall have been
exercised with respect thereto and, in addition, a certificate
shall have been issued therefor and delivered to Optionee.
14. RESTRICTIONS ON TRANSFER. Optionee agrees by acceptance of this
Option, that, upon issuance of any shares hereunder, unless such
shares are then registered under applicable federal and state
securities laws, (i) acquisition of such shares will be for
investment and not with a view to the distribution thereof, and
(ii) the Company may require an investment letter from Optionee in
such form as may be recommended by Company counsel.
OTHER RESTRICTIONS ON TRANSFER. Optionee shall be permitted to sell, make
any short sale of, loan, grant any option for the purchase of, or otherwise
dispose of any shares purchased under this Option, except when prohibited from
making such disposition by reasonable restrictions of the Company's Board of
Directors that are promulgated during the term of Optionee's employment.
IN WITNESS WHEREOF, the Company has caused this Option to be executed by
its proper corporate officers thereunto duly authorized.
xxxxxx.xxx, Inc.
By: /s/ Xxxxxx Xxxxxxx
---------------------------------
Xxxxxx Xxxxxxx, President and CEO
ATTEST:
/s/ Xxxxx Xxxxxxxx
-------------------------
Xxxxx Xxxxxxxx, Secretary
ACCEPTED AND AGREED TO:
/s/ Xxxxx X. Xxxxxxx-Xxxx
-------------------------
Xxxxx Xxxxxxx-Xxxx
EXHIBIT H
CONSULTING AGREEMENT
xxxxxx.xxx agrees to retain Xxxxxxx-Xxxx, and Xxxxxxx-Xxxx agrees to
serve, as an independent contractor-consultant in the capacity of Acting Chief
Financial Officer to assist xxxxxx.xxx in the transition to a new Chief
Financial Officer for a minimum period of 60 days following the Termination
Effective Date (the "Consulting Period"). Xxxxxxx-Xxxx shall be compensated at
the rate of $150 per hour during the Consulting Period. Upon mutual written
agreement, Xxxxxxx-Xxxx'x service as an independent-contractor consultant may
continue beyond the Consulting Period defined above.
Xxxxxxx-Xxxx'x duties shall be to advise xxxxxx.xxx's President and
Chief Executive Officer and to carry out the instructions given and tasks
delegated by the President and Chief Executive Officer to her. Xxxxxxx-Xxxx
understands and agrees that she shall in no sense be considered an employee of
xxxxxx.xxx or any related entity while engaging in the activities provided for
under this Consulting Agreement. In keeping with this independent contractor
status, Xxxxxxx-Xxxx is free to control her methods of work, provided that
Xxxxxxx-Xxxx continues to render her best efforts for xxxxxx.xxx under this
Agreement.
As a consequence of Xxxxxxx-Xxxx'x independent contractor status,
Xxxxxxx-Xxxx is not, under this Consulting Agreement, entitled to, or eligible
to participate in, any benefits, privileges, incentives or bonus programs given
or extended by xxxxxx.xxx to its employees. Among other things, Xxxxxxx-Xxxx
shall have no claim against xxxxxx.xxx hereunder for vacation pay, sick leave,
retirement benefits, social security, unemployment insurance benefits, or
employee benefits of any kind.
During the term of this Consulting Agreement, Xxxxxxx-Xxxx shall be
bound by her promises regarding nondisclosure and return of confidential
information, assignment of intellectual property, non-competition, and non-
solicitation as set forth in Article V of the Employment Agreement as if she
were still an employee of xxxxxx.xxx.
xxxxxx.xxx may terminate this Consulting Agreement at any time and for
any reason in its sole discretion; provided, however, that if it terminates the
Consulting Agreement within the Consulting Period, it will pay Xxxxxxx-Xxxx an
amount equal to eight hours of consulting services (i.e., $1200) per business
day remaining in the Consulting Period. xxxxxx.xxx's termination of this
Consulting Agreement for any reason at the end of or, in the event Xxxxxxx-
Xxxx'x service extends beyond the Consulting Period, following the Consulting
Period shall not result in any further payment to Xxxxxxx-Xxxx. The termination
of this Consulting Agreement shall not be considered a "termination for cause"
for purposes of stock option exercise periods relating to options existing as of
July 6, 2000.
The Indemnification Agreement of February 24, 1999, by and between
xxxxxx.xxx and Xxxxxxx-Xxxx shall continue in full force and effect during the
term of this Consulting Agreement for Xxxxxxx-Xxxx'x actions within the scope of
her authority hereunder.
