Exhibit 10.12
ESPS, Inc.
Employment Agreement Amendment
To Xxxx Xxxx:
In accordance with the terms of your employment agreement executed November
27, 2000, (the "Agreement"), ESPS, Inc. (the "Company") has determined its offer
with respect to acceleration of unvested option grants upon a Change of Control.
Following are the terms of the offer:
In the event of a Change of Control, options will become vested as follows:
1. If the Change of Control occurs within your first twelve months
of employment, 75% of options granted to you will immediately
vest upon approval of the Change of Control in accordance with
the Company's bylaws.
2. If the Change of Control occurs after your first twelve months of
employment but before eighteen months from your hire date, 87.5%
of options granted to you will immediately vest upon approval of
the Change of Control in accordance with the Company's bylaws.
3. If the Change of Control occurs after eighteen months of
employment, 100% of options granted to you will immediately vest
upon approval of the Change of Control in accordance with the
Company's bylaws.
Approval of the Change of Control shall have been deemed to have occurred
upon the date the stockholders of the Company (or the Board of Directors, if
stockholder action is not required) approve the Change of Control. In addition,
in the event your employment is terminated within 12 months of a Change of
Control, the Company has agreed to extend the severance period, as defined in
the "Severance" section of your Agreement, from six months to twelve months.
Please note that this modification does not in any way increase the amounts due
you from the Company as defined in your Agreement, in the event you are
terminated with Cause as defined in your Agreement.
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Change of Control A Change of Control for this purpose means the
occurrence of any one or more of the following events:
a person, entity, or group (other than the Company, any
Company subsidiary, any Company benefit plan, or any
underwriter temporarily holding securities for an
offering of such securities) acquires ownership of more
than 50% of the undiluted total voting power of the
Company's then-outstanding securities eligible to vote
to elect members of the Board ("COMPANY VOTING
SECURITIES"); consummation of a merger or consolidation
of the Company with or into any other entity -- unless
the holders of the Company Voting Securities
outstanding immediately before such consummation,
together with any trustee or other fiduciary holding
securities under a Company benefit plan, hold
securities that represent immediately after such merger
or consolidation at least 50% of the combined voting
power of the then outstanding voting securities of
either the Company or the other surviving entity or its
parent; or the stockholders of the Company approve (i)
a plan of complete liquidation or dissolution of the
Company or (ii) an agreement for the Company's sale or
disposition of all or substantially all the Company's
assets, AND such liquidation, dissolution, sale, or
disposition is consummated.
If you accept the terms of this amendment, please sign in the space indicated
below. We encourage you to consult with any advisors you choose.
ESPS, Inc.
By: /s/ Xxxxxxxxxxx Xxxxxxxxxxxx
I accept and agree to the terms of employment set
forth in this Agreement:
/s/ R. Xxxxxxx Xxxx
Dated: February 8, 2001
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