Sample Business Contracts

Transition Agreement and Release [Amendment No. 2] - RedEnvelope Inc. and Martin McClanan

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                                REDENVELOPE, INC.

                              SECOND AMENDMENT TO

         This Second Amendment to Transition Agreement and Release (the "SECOND
AMENDMENT") is entered into by and between RedEnvelope, Inc., a Delaware
corporation (the "COMPANY"), and Martin McClanan ("EXECUTIVE"), and amends
only as explicitly specified herein that certain Transition Agreement and
Release between the Company and Executive dated September 26, 2001 (the "
AGREEMENT"), as amended by that certain Amendment to Transition Agreement and
Release between the Company and Executive dated February 26, 2002 (the "FIRST
AMENDMENT"). Any capitalized terms which are not defined herein shall have the
same meanings as used in the Agreement.

         The Agreement, as amended by the First Amendment, sets forth the
amended terms governing the termination of Executive's employment relationship
with the Company. The Parties desire to establish additional terms concerning
the termination of Executive's employment relationship with the Company, as set
forth herein.

         In consideration of the promises made herein, the Parties hereby agree
as follows:

         1.       The Parties acknowledge and agree that Executive's employment
relationship with the Company shall terminate at the end of business on May 3,
2002, pursuant to the terms of the Agreement, as amended by the First Amendment,
and as modified by the terms of this Second Amendment. The Parties acknowledge
and agree that Executive's employment as Chief Executive Officer of the Company
terminated on April 8, 2002 and Executive's service as a member of the Company's
Board of Directors terminated on April 8, 2002.

         2.       In consideration for Executive's execution of the Continuing
Representations Certificate (as described in Section 21 of the Agreement), and
provided Executive complies with all other of his continuing obligations as set
forth in the Agreement, the First Amendment, and this Second Amendment, the
Parties agree to modify Executive's rights to receive benefits upon the
termination of his employment as set forth below:

                  (a)      Cash Severance . The Company shall pay Executive the
sum of $170,000 (the "CASH SEVERANCE"). The Company shall make such payment in
installments as follows: $70,000 of the Cash Severance shall be paid on or
before the 15th day following the Separation Date and the remaining $100,000
shall be paid in six (6) equal monthly installments pursuant to the Company's
regular payroll schedule and policies commencing with the first pay day
following Executive's execution of the Continuing Representations Certificate.
Executive acknowledges that the Cash Severance exceeds, and will be paid in lieu
of, the cash severance benefits set forth in Section 1(c) of the Agreement, as
amended by Sections 2(a) and 3 of the First Amendment. An additional $30,000
that would otherwise be payable to Executive as cash severance will be satisfied
through the issuance of stock as set forth in Section 2(c) below. The only cash
severence to which Executive shall be entitled is the Cash Severence.

                  (b)      Consulting Period . The Company and Executive will
enter into a three (3) month consulting relationship on the terms set forth in
Exhibit A (as attached hereto) (the



"CONSULTING AGREEMENT"). Executive acknowledges and agrees that the Company is
not obligated to utilize Executive's services during the consulting period.

                  (c)      Series F Shares. At such time that the Company
effects the final closing of its Series F Preferred Stock Financing (the "SERIES
F FINANCING"), the Company will issue to Executive, pursuant to the terms of
the Series F Preferred Stock Purchase Agreement executed by other investors in
the Series F Financing (the "PURCHASE AGREEMENT"), 47,016 shares of Series F
Preferred Stock, against delivery of signature pages to the Purchase Agreement
and the other related agreements duly executed by Executive. The Parties agree
that the Company will withhold from any cash payments made to Executive such
amounts as are required to be withheld and paid to the applicable taxing
authorities as a result of income recognized by Executive from the issuance of
shares pursuant to this Section 2(c).

                  (d)      All Other Benefits. Executive's rights to all other
severance benefits as described in Section 2 of the Agreement shall continue in
full force and effect pursuant to the terms described therein; provided,
however, that Executive acknowledges that he previously has been paid any and
all 2002 Cash Bonuses that the Company was obligated to pay to Executive
pursuant to Section 2(c) of the Agreement.

         3.       Repricing Rights. Executive acknowledges and agrees that, in
consideration for the benefits described herein, he shall have no further rights
to the benefits described in Section 2(b) of the First Amendment and shall have
no other rights to have the exercise price of his Options reduced or to receive
a cash bonus or grant of securities in lieu of a reduction in the exercise price
of his Options under any prior agreement with the Company, whether oral or
written. Executive acknowledges and agrees that nothing in this Second Amendment
shall entitle Executive to any additional equity interest in the Company (other
than to the limited extent that vesting of Executive's Options is continued
during the term of the Consulting Agreement) and that Executive shall have no
right, title or interest in or to any shares of the Company's capital stock or
other securities other than as set forth in the Agreement.

         4.       Use of Promissory Notes. Pursuant to the terms of the
Original Option Agreement, the Subsequent Grant Option Agreement, and the Bonus
Option Agreement (collectively, the "OPTION AGREEMENTS") and in addition to the
rights set forth in Section 4(g) of the Agreement, Executive shall be permitted
to exercise the Options delivering a promissory note having such rate of
interest, recourse, security, redemption, and other reasonable conditions as
determined by the Company. In no event may the Executive exercise the Options
later than the applicable expiration dates set forth in the Option Agreements.

         5.       Except as explicitly set forth herein, the Agreement and the
First Amendment shall remain in full force and effect, including without
limitation Executive's obligations to execute the Continuing Representations
Certificate, attached as Exhibit C to the Agreement, on or after the Separation
Date and Executive's other covenants under the Agreement.

         6.       The terms of this Second Amendment may be modified only by
written agreement of the Parties.



         7.       This Second Amendment shall be governed by the laws of the
State of California, without regard to its conflicts of law provisions.

         8.       Any payments made or consideration provided pursuant to this
Second Amendment shall be subject to reduction to reflect taxes or other charges
required to be withheld by law or otherwise authorized to be withheld by

         9.       The Agreement (as revised by the First Amendment and this
Second Amendment), and the exhibits hereto and thereto, represent the entire
agreement and understanding between the Company and Executive concerning
Executive's separation from the Company, and supersede and replace any and all
prior agreements and understandings on the matters addressed herein and therein,
including but not limited to the Offer Letter (with the exception of Sections 1
and 5 thereof, which shall survive until the Separation Date, and the
definitions set forth in Section 10(e) thereof, which are incorporated in the
Agreement and this Second Amendment by reference).

         The Parties have executed this Second Amendment on the respective dates
set forth below.

                                       REDENVELOPE, INC.

Dates as of May 14, 2002               By: /s/ Alison May
                                       Print Name: Alison May

                                       Title: President and CEO

                                       MARTIN MCCLANAN, an individual

                                       /s/ Martin McClanan
Dated as of May 9, 2002                ----------------------------------



                                    EXHIBIT A

                                REDENVELOPE, INC.

                              CONSULTING AGREEMENT

         This Consulting Agreement (the "Consulting Agreement") is entered
into by and between RedEnvelope, Inc., (the "Company"), a Delaware
corporation, and Martin McClanan ("Consultant").

         1.       CONSULTING RELATIONSHIP. During the term of this Consulting
Agreement, Consultant will provide consulting services (the "SERVICES") to the
Company as described on Attachment A attached to this Consulting Agreement.
Consultant represents that Consultant is duly licensed (as applicable) and has
the qualifications, the experience and the ability to properly perform the
Services. Consultant shall use Consultant's best efforts to perform the Services
such that the results are satisfactory to the Company.

         2.       FEES. As consideration for the Services to be provided by
Consultant and other obligations, the Company shall pay to Consultant the
amounts specified in Attachment B attached to this Consulting Agreement at the
times specified therein.

         3.       EXPENSES. Consultant shall not be authorized to incur on
behalf of the Company any expenses without the prior consent of the Company's
Chief Executive Officer. As a condition to receipt of reimbursement, Consultant
shall be required to submit to the Company reasonable evidence that the amount
involved was expended and related to Services provided under this Consulting

         4.       TERM AND TERMINATION. Consultant shall serve as a consultant
to the Company for a period commencing on May 3, 2002 and terminating on August
3, 2002, unless extended by the mutual written agreement of the parties hereto.
Notwithstanding the foregoing, either party may terminate this Consulting
Agreement at any time upon ten days' written notice and the Company may
terminate this Consulting Agreement immediately following Consultant's material
breach of the terms of the Confidentiality Agreement (as defined below). In the
event of such termination, Consultant shall be paid for any portion of the
Services that have been performed prior to the termination.

         5.       INDEPENDENT CONTRACTOR. Consultant's relationship with the
Company will be that of an independent contractor and not that of an employee.

                  (a)      NO AUTHORITY TO BIND COMPANY. Neither Consultant, nor
any partner, agent or employee of Consultant, has authority to enter into
contracts that bind the Company or create obligations on the part of the Company
without the prior written authorization of the Company.

                  (b)      NO BENEFITS. Consultant acknowledges and agrees that
Consultant will not be eligible for any Company employee benefits and, to the
extent Consultant otherwise would be eligible for any Company employee benefits
but for the express terms of this



Consulting Agreement, Consultant hereby expressly declines to participate in
such Company employee benefits.

                  (c)      WITHHOLDING; INDEMNIFICATION. Consultant shall have
full responsibility for applicable withholding taxes for all compensation paid
to Consultant, its partners, agents or its employees under this Consulting
Agreement, and for compliance with all applicable labor and employment
requirements with respect to Consultant's self-employment, sole proprietorship
or other form of business organization, and Consultant's partners, agents and
employees, including state worker's compensation insurance coverage requirements
and any US immigration visa requirements. Consultant agrees to indemnify, defend
and hold the Company harmless from any liability for, or assessment of, any
claims or penalties with respect to such withholding taxes, labor or employment
requirements, including any liability for, or assessment of, withholding taxes
imposed on the Company by the relevant taxing authorities with respect to any
compensation paid to Consultant or Consultant's partners, agents or its

         6.       SUPERVISION OF CONSULTANT'S SERVICES. All of the services to
be performed by Consultant, including but not limited to the Services, will be
as agreed between Consultant and the Company's Chief Executive Officer.
Consultant will be required to report to the Chief Executive Officer concerning
the Services performed under this Consulting Agreement. The nature and frequency
of these reports will be left to the discretion of the Chief Executive Officer.

         7.       CONFIDENTIALITY AGREEMENT. Consultant acknowledges and agrees
that he remains bound by the terms of the Confidential Information and Invention
Assignment Agreement (the "Confidentiality Agreement") which he executed on
February 16, 2000.

         8.       MISCELLANEOUS.

                  (a)      AMENDMENTS AND WAIVERS. Any term of this Consulting
Agreement may be amended or waived only with the written consent of the parties.

                  (b)      SOLE AGREEMENT. This Consulting Agreement, including
the Exhibits hereto, constitutes the sole agreement of the parties and
supersedes all oral negotiations and prior writings with respect to the subject
matter hereof.

                  (c)      NOTICES. Any notice required or permitted by this
Consulting Agreement shall be in writing and shall be deemed sufficient upon
receipt, when delivered personally or by courier, overnight delivery service or
confirmed facsimile, 48 hours after being deposited in the regular mail as
certified or registered mail (airmail if sent internationally) with postage
prepaid, if such notice is addressed to the party to be notified at such party's
address or facsimile number as set forth below, or as subsequently modified by
written notice.

                  (d)      CHOICE OF LAW. The validity, interpretation,
construction and performance of this Consulting Agreement shall be governed by
the laws of the State of California, without giving effect to the principles of
conflict of laws.

                  (e)      SEVERABILITY. If one or more provisions of this
Consulting Agreement are held to be unenforceable under applicable law, the
parties agree to renegotiate such provision in good faith. In the event that the
parties cannot reach a mutually agreeable and enforceable



replacement for such provision, then (i) such provision shall be excluded from
this Consulting Agreement, (ii) the balance of the Consulting Agreement shall be
interpreted as if such provision were so excluded and (iii) the balance of the
Consulting Agreement shall be enforceable in accordance with its terms.

                  (f)      COUNTERPARTS. This Consulting Agreement may be
executed in counterparts, each of which shall be deemed an original, but all of
which together will constitute one and the same instrument.

                  (g)      ARBITRATION. The Parties shall attempt to settle all
disputes arising in connection with this Consulting Agreement through good faith
consultation. In the event no agreement can be reached on such dispute within
fifteen (15) days after notification in writing by either Party to the other
concerning such dispute, the dispute shall be settled by binding arbitration to
be conducted in San Francisco before the American Arbitration Association under
its California Employment Dispute Resolution Rules, or by a judge to be mutually
agreed upon. The arbitration decision shall be final, conclusive and binding on
both Parties and any arbitration award or decision may be entered in any court
having proper jurisdiction. The Parties agree that the prevailing party in any
arbitration shall be entitled to injunctive relief in any court of competent
jurisdiction to enforce the arbitration award. The Parties further agree that
the prevailing Party in any such proceeding shall be awarded reasonable
attorneys' fees and costs. This Section 8(g) shall not apply to the


                            [Signature Page Follows]



         The parties have executed this Consulting Agreement on the respective
dates set forth below.

                                       REDENVELOPE, INC.

                                       By: /s/ Alison L. May
                                       Title: President and CEO

                                       Address: 201 Spear St, Suite 300
                                                San Francisco, CA 94105

                                       Date:    May 14, 2002

                                       MARTIN MCCLANAN
                                       /s/ Martin McClanan

                                       Address: 128 3rd Ave.
                                                San Francisco, CA 94118

                                       Date: May 9, 2002

                                  ATTACHMENT A


Consultant shall provide such information and advice as is reasonably requested
in order to assist the Company in transitioning management of Company matters to
the Company's current Chief Executive Officer.


                                  ATTACHMENT B


At the conclusion of every two-week period, Consultant shall deliver to the
Chief Executive Officer of the Company a schedule that identifies the number of
hours and the Services requested by and performed for the Company by Consultant
during such period (each such schedule referred to herein as a "Pay Schedule").

For Services requested by the Company and performed by Consultant under this
Consulting Agreement and listed on a Pay Schedule, the Company shall pay
Consultant at the rate of $200 per hour, payable within two weeks of delivery of
each Pay Schedule.

In addition, Consultant's Continuous Status as an Employee or Consultant (as
defined in Consultant's Options (as defined in the Transition Agreement and
Release executed by the Company and Consultant on September 26, 2001)) will not
be deemed to have terminated following his Separation Date (as defined in the
Transition Agreement and Release) and the Options will continue to vest pursuant
to their terms until the termination of this Consulting Agreement.