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Exhibit 10.23
Student Advantage, Inc.
280 Summer Street
Boston, Massachusetts 02210
April 14, 2000
Mr. Ronald J. Kos
c/o Student Advantage, Inc.
280 Summer Street
Boston, Massachusetts 02210
Dear Ron:
This letter sets forth our agreement regarding the terms of your continued
employment with Student Advantage, Inc. (the "Company"), effective as of April
1, 2000 (the "Effective Date").
1. You will be employed as the Chief Operating Officer of the Company. Your
primary duties and responsibilities shall be to (a) manage the Company's
Marketing Communications Department, (b) manage the executive and senior-level
employee recruiting process for the Company and (c) lead the Company's Strategic
Planning process. You hereby accept such employment and agree to undertake such
duties and responsibilities and such other duties and responsibilities as the
Chief Executive Officer of the Company shall from time to time reasonably assign
to you.
2. Your annual base salary will initially be $150,000. You will be eligible
to earn an annual performance bonus with a target of $75,000 based upon the
achievement of certain performance objectives, in accordance with the Company's
customary corporate practices. All salary, bonus and other compensation payable
to you shall be subject to applicable withholding taxes.
3. You shall be entitled to participate in the Company's employee benefit
programs, to the extent that your position, tenure, health and other
qualifications make you eligible to participate, including without limitation,
indemnification under the Company's Certificate of Incorporation as an officer
of the Company.
4. The Incentive Stock Option Agreement between you and the Company
evidencing the grant to you on May 19, 1999 of an option to purchase 40,404
shares of common stock of the Company at an exercise price of $9.90 per share
(the "ISO Agreement") is hereby amended and restated in its entirety to read as
set forth in EXHIBIT A attached hereto. The Nonstatutory Stock Option Agreement
between you and the Company evidencing the grant to you on May 19, 1999 of an
option to purchase 609,597 shares of common stock of the Company at an exercise
price of $9.90 per share (the "NSO Agreement") is hereby amended and restated in
its entirety to read as set forth in EXHIBIT B attached hereto. You acknowledge
that the ISO Agreement and the NSO Agreement each provide that the vesting of
the option evidenced thereby shall accelerate upon a Change in Control Event (as
defined therein) only if you are an Eligible Participant (as defined therein) at
the time of the closing of such Change in Control Event. The Company
acknowledges that the ISO Agreement and the NSO Agreement each provide that,
subject to the immediately preceding sentence, to the extent that a Change in
Control Event (as defined in the ISO Agreement and the NSO Agreement) is also an
Acquisition Event (as defined in the Company's 1998 Stock Incentive Plan (the
"Plan")), the options evidenced by the ISO Agreement and the NSO Agreement shall
become vested and exercisable as to such greater number of additional Shares (as
defined in the ISO Agreement and the NSO Agreement) as is provided under (a)
Section 5(b) of SCHEDULE A to the ISO Agreement and NSO Agreement and (b)
Section 8(c)(2) of the Plan.
5. Section 1(a)(i) of the Non-Competition, Invention and Non-Disclosure
Agreement, dated May 3, 1999, between you and the Company, is hereby amended by
adding the following proviso thereto:
"; provided, however, that it shall not be deemed to be a violation of this
clause (i) if the Employee (following the termination of his employment
with the Company) is an investor in, a limited or general partner of, or an
employee or consultant at a venture capital, public relations, advertising
or consulting firm or educational institution that represents, advises (or
in the case of a venture capital firm or educational institution, invests
in) numerous different entities ("Represented Entities") even if one of
such Represented Entities engages in one of the prohibited businesses
described above, as long as the Employee does not involve himself in, or
otherwise
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influence such firm or institution with respect to, a Represented Entity
that is engaged in one of the prohibited businesses described above."
6. The Non-Competition, Invention and Non-Disclosure Agreement, dated May
3, 1999, between you and the Company, as amended by paragraph 5 hereof, shall
continue in full force and effect.
7. Your employment with the Company may be terminated at any time by either
you or the Company. In the event of the termination of your employment with the
Company, the Company shall pay to you the compensation and benefits otherwise
payable to you hereunder through the last day of your actual employment by the
Company.
8. Notwithstanding the provisions of paragraph 7 above, in the event (A)
your employment with the Company is terminated by you for any reason or by the
Company without Cause (as defined below) and (B) you sign and do not revoke a
release of claims against the Company and its directors, officers and employees
(which is reasonably acceptable to the Company), then the Company shall (1) pay
to you a lump sum of $2,000 within 15 days of the date of termination and (2)
continue to pay to you the base salary otherwise payable to you until the date
90 days after the date of termination. For purposes of this paragraph 8, "Cause"
shall mean one or more of the following: (i) gross negligence, willful
misconduct, dishonesty or breach of fiduciary duty to the Company; (ii) the
commission of an act of embezzlement or fraud; (iii) deliberate disregard of the
rules or policies of the Company which results in loss, damage or injury to the
Company; and (iv) unauthorized disclosure of any trade secret or confidential
information of the Company. The payment to you of the amounts payable under this
paragraph 8 shall constitute your sole remedy in the event of a termination of
your employment with the Company by you or by the Company without Cause.
9. This letter agreement sets forth our entire understanding with respect
to the terms of your employment with the Company after the Effective Date. This
letter supersedes the letter agreement dated May 3, 1999, between you and the
Company, regarding the terms of your employment with the Company. This letter
agreement may be amended or modified only by a written instrument executed by
both you and the Company. This letter agreement shall be governed by and
construed in accordance with the internal laws (and not the law of conflicts) of
the Commonwealth of Massachusetts.
If this letter correctly sets forth our agreement with respect to your
continued employment with the Company, please so indicate by signing a copy of
this letter where indicated below and returning it to me. Very truly yours,
STUDENT ADVANTAGE, INC.
By: /s/ Raymond V. Sozzi, Jr.
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Raymond V. Sozzi, Jr.
President and Chief Executive Officer
I hereby accept and agree to the
terms set forth in this letter agreement
/s/ Ronald J. Kos
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Ronald J. Kos