Exhibit 10.13
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FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
THIS FIRST AMENDMENT TO EMPLOYMENT AGREEMENT (this "Amendment") is
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made and entered into as of October 21, 1998, by and between EVERCOM, INC., a
Delaware corporation, formerly known as Xxxxxx Holdings, Inc. (the "Company")
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and XXXXXXX X. XXXXXXX (the "Executive").
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R E C I T A L S
WHEREAS, the Company and the Executive entered into that certain
Employment Agreement dated as of November 15, 1997 (the "Agreement"). Unless
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the context otherwise requires, all capitalized terms utilized herein shall have
the meanings ascribed to them in the Agreement;
WHEREAS, the parties desire to amend the Agreement in certain
respects.
NOW, THEREFORE, the parties hereby agree as follows:
1. Section 5(b) of the Agreement is hereby amended in its
entirety to read as follows :
"(b) TERMINATION WITHOUT CAUSE. Prior to the end of the
Employment Period, the Company may terminate the Executive's employment
under this Agreement for a reason other than Cause or no reason whatsoever
(i.e., without Cause). If the Company terminates the Executive's
employment without Cause prior to the expiration of the Employment Period,
or the Company elects not to extend the Employment Period as provided in
Section 2, the Company's liability to the Executive is limited to an amount
equal to the cash compensation (Base Salary and Bonus) which was paid to
the Executive with respect to the calendar year prior to the calendar year
in which his employment was terminated or not extended, provided that, for
a termination in 1998 such payment shall be $225,000 (the "Severance
Payment"). The Company may, at its option, pay the Severance Payment in a
lump sum within 30 days after the date of termination of employment, or pay
the Severance Payment over a twelve month period (commencing effective as
of the date of termination of employment) in equal installments in
accordance with the Company's payroll policy. If the Company terminates
employment of the Executive because he has become disabled such that he is
unable to perform the essential functions of his job (with reasonable
accommodation), any such termination shall be deemed to be a termination
without Cause pursuant to this Agreement. Similarly, the Executive's
employment shall terminate upon his death, and shall be deemed a
termination by the Company without Cause, with payments of the Severance
Payment hereunder to be made to the Executive's estate."
2. Sections (a) and (b) of Exhibit A of the Agreement are
hereby amended in their entirety to read as follows:
"(a) Base Salary: $140,000 per year through November 14, 1998. Thereafter,
----------- $168,000 per year.
(b) Bonus: Guaranteed bonus for 1998 as follows: (i) $35,000 paid in
----- June of 1998, and (ii) $50,000 payable on or before
January 31, 1999. A bonus program will be established
annually beginning in 1999. The bonus program shall be
based upon the Company's annual budget for each year. The
Executive's target bonus shall equal 50% of Base Salary
which shall be earned upon achievement of annual budget
objectives, with the Executive being eligible to earn a
maximum bonus equal to 100% of Base Salary. Determination
of bonuses above or below target will be mutually agreed
upon by the Company, acting through its Compensation
Committee, and the Executive each year."
3. Except as amended hereby, the Agreement is hereby ratified
and confirmed and shall remain in full force and effect.
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4. This Amendment may be executed in several counterparts
each of which shall be deemed an original and said counterparts shall constitute
but one and the same instrument which may be sufficiently evidenced by one
counterpart.
5. This Amendment shall be binding upon and inure to the
benefit of the Company and its affiliates, successors and assigns, and the
Executive and his assigns, heirs and legal representatives. Each of the Xxxxxx
Entities (and their respective affiliates, successors and assigns) shall be
third party beneficiaries of this Amendment and may independently enforce and
benefit from the terms hereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
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EVERCOM, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
Address: 0000 Xxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attn: Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
EXECUTIVE:
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By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Address: 0000 Xxxxxxxxx Xxxxx
Xxxxx, Xxxxx 00000
Attn: Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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