PureDepth, Inc. Amendment No. 1 to Employment Agreement Andy Wood
Exhibit
10.45
Amendment
No. 1 to Employment Agreement
Xxxx
Xxxx
PureDepth,
Inc. (the “Company”) and Xxxx Xxxx (“Employee”) are entering into this Amendment
No. 1 (the “Amendment”) to the Employment Agreement made effective as of August
27, 2008 (the “Initial Agreement”), this 20th of February, 2009.
WHEREAS,
the Board of Directors of the Company has determined that it is in the best
interests of the Company and its stockholders to provide for certain
acceleration of vesting of certain options held by the Employee, as provided
below.
THEREFORE,
the parties agree as follows:
1. Definitions. Except
as otherwise defined herein, all capitalized terms shall have the meaning set
forth in the
Agreement.
2. Equity. Section
8.5 of the Initial Agreement is hereby amended and restated in full to read as
follows:
“Termination Without Cause
Following a Change of Control. If Employee’s employment with
the Company is terminated Without Cause on or within twelve (12) months
following the effective date of a Change of Control (as defined below), then
subject to Employee’s execution of a full general release in a form reasonably
acceptable to the Board, releasing all claims, known or unknown, that Employee
may have against Company and any of its subsidiaries or agents, and such release
has become effective in accordance with its terms prior to the 30th day
following the effective date of such
termination, then: (a) the Company shall pay to Employee,
in accordance with the Company’s regular payroll schedule, commencing with the
first payroll date occurring at least 30 days following the Termination Date, an
amount equal to Employee’s then effective Base Salary for a period of six (6)
months, payable to Employee in equal installments for the Severance Period;
and (b) Employee shall become vested in 100% of the shares subject to
his Option and any subsequent options to purchase the Company’s common stock
granted to him.”
3. Application of Section
409A.
(a) Notwithstanding
anything set forth in the Agreement, as amended hereby (the “Amended Agreement”)
to the contrary, no amount payable pursuant to the Amended Agreement which
constitutes a “deferral of compensation” within the meaning of the Treasury
Regulations issued pursuant to Section 409A of the Code (the “Section 409A
Regulations”) shall be paid unless and until Employee has incurred a “separation
from service” within the meaning of the Section 409A
Regulations. Furthermore, to the extent that Employee is a “specified
employee” within the meaning of the Section 409A Regulations as of the date of
Employee’s separation from service, no amount that constitutes a deferral of
compensation which is payable on account of Employee’s separation from service
shall paid to Employee before the date (the “Delayed Payment Date”) which is
first day of the seventh month after the date of Employee’s separation from
service or, if earlier, the date of Employee’s death following such separation
from service. All such amounts that would, but for this Section,
become payable prior to the Delayed Payment Date will be accumulated and paid on
the Delayed Payment Date.
(b) The
Company intends that income provided to Employee pursuant to the Amended
Agreement will not be subject to taxation under Section 409A of the
Code. The provisions of the Amended Agreement shall be interpreted
and construed in favor of satisfying any applicable requirements of Section 409A
of the Code. However, the Company does not
guarantee any particular tax effect for income provided to Employee pursuant to
the Amended Agreement. In any event, except for the Company’s
responsibility to withhold applicable income and employment taxes from
compensation paid or provided to Employee, the Company shall not be responsible
for the payment of any applicable taxes on compensation paid or provided to
Employee pursuant to the Amended Agreement.
4. Continuation of Other
Terms. Except as set forth herein, all other terms and
conditions of the Agreement shall remain in full force and effect.
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/s/
Xxxx
Xxxxx
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Xxxx
Xxxxx
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Member,
Board of Directors
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Compensation
Committee
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Date:
3-10-09
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Acknowledged,
Accepted and Agreed:
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/s/
Xxxxxx X. Xxxx
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Xxxxxx
X. Xxxx
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Date:
3-17-09
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