Employment Agreement [Amendment No. 1] - AltaVista Co. and James Barnett
FIRST AMENDMENT TO OFFER LETTER
THIS FIRST AMENDMENT ("First Amendment") to the Offer Letter dated November
15, 2001 by and between AltaVista Company, a Delaware corporation (the
"Company"), and James Barnett is entered into as of this 24th day of June, 2002
(the "Original Offer Letter").
WHEREAS, the parties hereto wish to amend the Original Offer Letter to
provide Mr. Barnett with a special incentive to maximize the value of the
Company;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged and agreed, the parties hereto agree as follows:
1. The Original Offer Letter is hereby amended by adding the following new
provisions.
"In the event the Company experiences a Change of Control, you will have
the right (subject to the conditions set forth below) to receive a cash payment
equal to 2% of the total proceeds (subject to the terms and conditions set forth
below) received by the Company or its stockholders. Proceeds placed in escrow
for indemnification or other such purposes will be valued when released from
escrow and you will be entitled to receive a cash payment equal to 2% of the
amount released from escrow, subject to the vesting and other terms and
conditions described below) (the "Barnett Special Bonus"). The value of any
securities traded on a nationally recognized stock exchange which are received
by the Company or its stockholders as part of a Change of Control transaction
will be determined at the time the securities are received by the Company or its
stockholders. The Barnett Special Bonus shall be due and payable at the closing
of the transaction giving rise to the Change of Control, except for any portion
of the Barnett Special Bonus from proceeds placed in escrow, which shall be due
and payable concurrently with the release of such proceeds. Contingent proceeds,
commonly referred to as an "earn out", will not be deemed to be part of the
Barnett Special Bonus and you will not be entitled to receive a percentage of
any such amounts, unless you are employed by the Company or its successor at the
time such contingent proceeds are earned (the "Earn Out Date"). This right to
receive the Barnett Special Bonus shall vest as follows: beginning on your
original hire date of September 1, 2001, 1/36 of the Barnett Special Bonus shall
vest for each month of service until fully vested on September 1, 2004.
Notwithstanding the immediately prior sentence, the vesting of this right shall
automatically accelerate in full if you are employed by the Company at the time
of any Change of Control or if, during the 180 days preceding any Change of
Control, your employment should be terminated for any reason other than for
Cause, or if you should terminate your employment for Good Reason. This right to
receive the Barnett Special Bonus shall terminate on the fifth anniversary of
the date you were originally hired as an employee by the Company (the "Special
Bonus Expiration Date"). Your vested portion, if any, of the Barnett Special
Bonus shall continue to be outstanding
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until the Special Bonus Expiration Date if, prior to a Change of Control (x)
your employment is terminated for any reason other than for Cause or (y) you
should terminate your employment for any reason including Good Reason. The
Barnett Special Bonus shall be based on the gross amount of proceeds received by
the Company or its stockholders, net of amounts owed to investment bankers and
attorneys in connection with the Change of Control transaction. You shall not be
permitted to assign the Barnett Special Bonus, except that you may assign the
Barnett Special Bonus to a revocable trust of which you are the grantor, and you
may make a testamentary disposition of the Barnett Special Bonus to your spouse.
Notwithstanding any of the foregoing, the Barnett Special Bonus shall
automatically terminate if you are terminated for Cause."
2. The Company agrees to use its best efforts to ensure that the rights
granted under the Original Offer Letter and this First Amendment to Offer Letter
are effective and that you enjoy the benefits thereof and hereof to the extent
that you are entitled to them. The Company will not, by any voluntary action,
avoid or seek to avoid the observance or performance of any of the terms
required to be performed hereunder by the Company, but will at all times in good
faith assist in the carrying out of all of the provisions of the Original Offer
Letter and this First Amendment to Offer Letter and in the taking of all such
actions as may be necessary, appropriate or reasonably requested in order to
protect your rights thereunder and hereunder against impairment.
3. Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to them in the Original Offer Letter.
4. Except as expressly modified by this First Amendment, the Original Offer
Letter shall remain in full force and effect. This First Amendment and the
Original Offer Letter (and those documents and agreements referenced herein and
therein) constitute the entire agreement relating to the subject matter hereof.
IN WITNESS WHEREOF, the parties have executed this First Amendment as of
the date first written above.
ALTAVISTA COMPANY
/s/ David S. Wetherell
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Name: David S. Wetherell
Title: Chairman of the Board
/s/ James Barnett
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James Barnett