Employment Agreement [Amendment No. 1] - Cheap Tickets Inc. and Sam E. Galeotos
AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
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THIS AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT is made as of October 18,
2000 (this "Amendment") by and between Cheap Tickets, Inc., a Delaware
corporation (the "Company"), and Sam E. Galeotos ("Executive"). All capitalized
terms not defined herein shall have the meaning ascribed to such terms in the
Agreement (as defined in Recital A below).
RECITALS
A. Employment Agreement. Executive and the Company are parties to that
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certain Employment Agreement, dated as of October 25, 1999 (the "Agreement"),
pursuant to which Executive is employed by the Company, as a senior executive of
the Company, in accordance with and subject to the terms and conditions set
forth therein.
B. Amendment to Employment Agreement. The Board of Directors of the
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Company has considered the valuable contribution Executive has provided to the
Company and have approved and ratified that the Agreement be amended to provide
Executive with certain additional benefits in the event Executive's employment
is terminated as a result of, or in connection with, a Corporate Transaction,
Change in Control or Related Entity Disposition (as each such capitalized term
is defined hereinbelow).
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Amendment to the Agreement. The Agreement is hereby amended as
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follows:
(a) Section 3.1(b) -- Bonus. Section 3.1(b) is hereby amended and
restated to read in its entirety as follows:
"Bonus. Upon attainment by the Company and Executive of financial and
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operational goals determined annually in advance by the Board in
consultation with Executive, an annual bonus in the amount of fifty percent
(50%) of the annual salary, payable at the time and pursuant to the
procedures regularly established, and as they may be amended, by the
Company during the course of this Agreement. If the Company and Executive
exceed such financial and operational goals, the bonus shall be at an
increased percentage of the annual salary, not to exceed seventy-five
percent (75%) thereof, on a graduated scale, as determined annually in
advance by the Board in consultation with Executive. In the event of any
Corporate Transaction, Change in Control or Related Entity Disposition, as
each such capitalized term is defined hereinbelow (any such event, a
"Corporate Event"), the bonus shall be prorated and paid to the date of
such Corporate Event. The terms "Change in Control" and "Related Entity
Disposition" shall have the respective meanings assigned to them in the
Company's 1999 Stock Incentive Plan (the "Option Plan"), a copy of which is
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attached hereto as Schedule I. The term "Corporate Transaction" shall mean
any of the following transactions: (i) a merger or consolidation in which
the Company is not the surviving entity, except for a transaction the
principal purpose of which is to change the state in which the Company is
incorporated; (ii) the sale, transfer or other disposition of all or
substantially all of the assets of the Company (including the capital stock
of the Company's subsidiary corporations); (iii) any reverse merger in
which the Company is the surviving entity but in which securities
possessing more than fifty percent (50%) of the total combined voting power
of the Company's outstanding securities are transferred to a person or
persons different from those who held such securities immediately prior to
such merger; or (iv) an acquisition by any person or related group of
persons (other than the Company or by a Company-sponsored employee benefit
plan) of beneficial ownership (within the meaning of Rule 13d-3 of the
Securities Exchange Act of 1934, as amended) of securities possessing more
than fifty percent (50%) of the total combined voting power of the
Company's outstanding securities."
(b) Section 3.1(c) -- Stock Options. Section 3.1(c) is hereby amended
and restated to read in its entirety as follows:
"Stock Option. An option (the "Stock Option") to purchase six hundred
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thousand (600,000) shares of Common Stock of the Company (the "Option
Shares"), in accordance with and subject to the terms and conditions of
that certain Stock Option Award Agreement (the "Stock Option Award
Agreement") of even date herewith between the Company and Executive, a copy
of which is attached hereto as Exhibit A and incorporated by reference
herein. With respect to the Stock Option and any and all other stock
options awarded to Executive at any time, notwithstanding any provision to
the contrary in the Stock Option Award Agreement or any other stock option
award agreements relating to such other stock options, and to the extent
necessary, the Stock Option Award Agreement and all such stock option award
agreements are hereby amended to provide that, (i) if, during the first
three (3) years of the Employment Term, Executive's employment with the
Company is terminated either by the Company without Cause (as defined in
Section 4.3 below) or by Executive for Good Reason (as defined in Section
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4.4 below), additional Option Shares shall vest and become exercisable
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immediately prior to such termination, so that an aggregate of sixty
percent (60%) of all Option Shares under the Stock Option (including those
that have already vested) shall have vested and become exercisable; (ii)
if, at any time during the Employment Term, there occurs a Corporate Event
or a Change of Control (as defined in subparagraph (b) of Section 4.4
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below), all unvested Option Shares shall immediately vest and become
exercisable; and (iii) in the event of an anticipated Corporate Transaction
following or pursuant to which the Stock Option will not be assumed by the
successor corporation or its parent, all unvested Option Shares shall vest
and become fully exercisable for a period of at least 10 days prior to the
date of the consummation of the Corporate Transaction and, if Executive is
precluded from exercising such Stock Option under federal or state
securities laws or other applicable laws, the Company shall pay Executive
the
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difference between (X) the per share price that the stockholders of the
Company will receive as a result of consummation of the Corporate
Transaction and (Y) the exercise price of the Stock Option, multiplied by
the total number of Option Shares not previously exercised (provided that
the amount in clause (X) is greater than the amount in clause (Y))."
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(c) Section 3.1(e) -- Gross-Up. Section 3.1(e) is hereby amended and
restated to read in its entirety as follows:
"Gross-Up. Irrespective of whether Executive is employed on the last
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day of a given calendar year, the Company shall pay to Executive, on or
before the last day of such calendar year with respect to which any
Forgiveness Payment or Gross-Up Amounts (as defined in Section 3.3(d)
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below) are reportable, an amount (the "Gross-Up Payment") such that, after
the payment of federal, state and local income and employment taxes on such
amount, Executive shall have received amounts free and clear of such taxes
equal to the Forgiveness Payment and Gross-Up Amounts; provided that the
Company may withhold from any Gross-Up Payment any federal, state, local
income and employment taxes required to be withheld from the Gross-Up
Payment, the Forgiveness Payment and the Gross-Up Amounts (in aggregate)
and paid over to governmental authorities.
For purposes of determining the amount of any Gross-Up Payment,
Executive shall be deemed (i) to pay federal income taxes at the highest
marginal rate of federal income taxation for the calendar year in which the
Gross-Up Payment is to be made, and (ii) to pay any applicable state and
local income taxes at the highest marginal rate of taxation for the
calendar year in which the Gross-Up Payment is to be made, net of the
maximum reduction in federal income taxes which could be obtained from
deduction of such state and local taxes if paid in such year. The Company
and Executive shall cooperate in good faith to determine the amount of any
Gross-Up Payment payable hereunder. If the Company and Executive cannot
agree on the amount of any Gross-Up Payment so payable, the Company and
Executive shall mutually select an independent accounting firm to make the
determination.
Notwithstanding anything herein to the contrary, the maximum Gross-Up
Payment payable by the Company to Executive shall not exceed one hundred
percent (100%) of the amount forgiven.
Additionally, to the extent that any payment or benefit to Executive,
resulting from the occurrence of a Corporate Event pursuant to this Section
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3 or Section 5 below, would be treated as payments subject to excise tax
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due to their inclusion as "excess parachute payments" under Section 280G(b)
of the Internal Revenue Service Code, the Company shall reimburse Executive
for such excise tax and for an amount sufficient to offset or "gross-up"
the tax impact of the reimbursement payment."
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(d) Section 4.4 -- By Executive For Good Reason. Section 4.4 is
hereby amended to include new subsections (e) and (f), which shall read in their
entirety as follows:
"(e) Executive's base salary is reduced, after a Corporate Event,
to a level below that in effect immediately preceding the consummation of
such Corporate Event or at any time thereafter.
(f) Executive is required, after a Corporate Event, to be based
at any place outside a 50-mile radius from Executive's job location or
residence prior to such Corporate Event except for reasonably required
travel on business which is not materially greater than such travel
requirements prior to the Corporate Event and provided that Executive has
not consented to such relocation."
(e) Section 5 -- Severance. Section 5 is hereby amended and restated
to read in its entirety as follows:
"Severance. In the event Executive's employment with the Company is
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terminated either by the Company without Cause or by Executive for Good
Reason, the Company shall pay and provide to Executive a severance in an
amount equal to two and one-half (2-1/2) times the annual salary set forth
in Section 3.1(a) above, as applicable at the time of termination, payable
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over a period of twenty-four (24) months from the effective date of
termination, in forty-eight (48) equal semi-monthly installments.
Notwithstanding the foregoing, if Executive's employment is terminated
either by the Company without Cause or by Executive for Good Reason within
one (1) year after a Corporate Event, the Company shall alternatively pay
and provide to Executive the following benefits:
(a) A severance in an amount equal to three (3) times the annual
salary set forth in Section 3.1(a) above, as applicable at the time of
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termination, payable over a period of twenty-four (24) months from the
effective date of termination, in forty-eight (48) equal semi-monthly
installments;
(b) Outplacement services up to $30,000;
(c) Medical insurance coverage for one (1) year on the same terms
as provided by the Company; and
(d) Forgiveness of any outstanding principal amount payable by
Executive under the Note."
(f) Schedule I. The Company's 1999 Stock Incentive Plan, which is
attached hereto as Exhibit A to this Amendment, is hereby included as Schedule I
to the Agreement.
2. Effect of this Amendment. Except as amended hereby, the Agreement
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shall remain in full force and effect.
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3. Execution in Counterparts and By Facsimile. This Amendment may be
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executed in any number of counterparts, each of which when so executed and
delivered shall be deemed to be an original and all of which taken together
shall constitute one and same agreement. A facsimile execution copy of this
Amendment shall be binding and have the same force and effect as the original of
this Amendment.
[Signature Page is the Next Page]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
Employment Agreement to be executed as of the date first written above.
"Company" CHEAP TICKETS, INC.,
a Delaware corporation
By: /s/ Mike Hartley
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Name: Mike Hartley
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Title: CEO
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"Executive" /s/ Sam E. Galeotos
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SAM E. GALEOTOS
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Exhibit A
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Schedule I
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1999 Stock Incentive Plan
of
Cheap Tickets, Inc.