AMENDMENT TO EMPLOYMENT AGREEMENT
AMENDMENT
TO EMPLOYMENT AGREEMENT
THIS
AMENDMENT TO EMPLOYMENT AGREEMENT dated as of January 18, 2010 (this
"Amendment"), is entered into by and between Xxxxx X. Xxxx (hereinafter called
"Employee"), and St. Xxxxxxx Software, Inc. (hereinafter the "Employer"), with
reference to the following:
RECITALS
WHEREAS,
Employee and Employer entered into that certain Employment Agreement made as of
January 15, 2009 (the “Agreement”);
WHEREAS,
Employee and Employer desire by this Amendment to amend, modify and supplement
the Agreement as set forth herein, effective January 1, 2010 (the “Amendment
Effective Date”).
NOW,
THEREFORE, in consideration of good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties to this Amendment,
Employee and Employer hereby agree as follows:
1.
Recitals. The
Recitals set forth above are incorporated herein as though set forth in full
herein.
2.
Compensation, Benefits
and Reviews.
(a)
Commencing on the Amendment Effective Date, Paragraphs 2(a) and 2(b) of the
Agreement are amended and restated in their entirety to read as
follows:
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“2(a)
Pay Employee's salary by check or direct deposit in accordance with
Employer's regular salary payment schedule, which shall be paid at the
rate of $11,458 twice per month, (which equates to an annualized amount of
$275,000) before deductions made at Employee's request, if any, and for
deductions required by federal, state and local law.
2(b)
Pay Employee a quarterly performance bonus (if any), not to exceed $50,000
in the aggregate, based on specific performance targets set forth in the
bonus plan established by the board of directors and attached hereto as
Exhibit C.”
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(b)
Commencing on the Amendment Effective Date, Exhibit C to the
Agreement is replaced in its entirety with the 2010 Performance
Bonus Plan (the “Plan”), attached to this Amendment as Exhibit
A.
(c) Employer will grant Employee
100,000 non-qualified stock options to vest over a three (3) year period with
one third (1/3) vesting on the first anniversary of the date of the grant and
the remainder two thirds (2/3) vesting over the remaining two (2) years on a
monthly basis thereafter (such shares to vest on the first day of each month
thereafter until such shares are vested in full). The stock options’
exercise price will be priced at the closing share price on the date of grant
and will be subject to Employee signing Employer’s form stock option agreement.
The stock options shall be governed by the St. Xxxxxxx Software, Inc. 2005 Stock
Option Plan, as it may be amended from time to time.
(d)
Commencing on the Amendment Effective Date, Paragraphs 3(a) and 3(b) of the
Agreement are amended and restated in their entirety to read as
follows:
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“3)
Term and Termination. The term of this Amendment shall be for a period of
twelve months (the “Extended Term”). Unless the parties enter into a new
contract before the expiration of the Extended Term (i.e. December 31,
2010) then Employee’s employment shall continue on an “at-will”
basis. Notwithstanding anything herein to the contrary in this
paragraph, starting on July 1, 2010, either party may terminate this
agreement by providing the other party with thirty (30) days prior written
notice
b)Termination
Without Cause and Change of Control. In the event that
during the Extended Term Employee shall be terminated by Employer without
“Cause” or terminated following a Change of Control (as defined below) or
if the Board of Directors appoints a permanent Chief Executive Officer to
replace Employee, then Employee shall receive from Employer, with
appropriate deductions and withholdings, the compensation required by
Paragraph 2(a) for the remaining term of the Initial Term (the “Severance
Period”) following the date of such termination (the “Severance”), plus
all accrued but unpaid salary and vacation time and any applicable
quarterly bonus which has been earned but not yet paid to the date of
termination. In addition, in the event that during the Extended
Term Employee shall be terminated by Employer without “Cause” or following
a Change of Control or if the Board of Directors appoints a permanent
Chief Executive Officer to replace Employee, then the vesting of all of
Employee’s unvested stock options shall immediately accelerate and be
fully vested. In no event will the Severance Period be longer than six (6)
months. The foregoing Severance shall be reduced by the amount
of any other compensation earned by the Employee during the Severance
Period as a result of his employment. Employee’s eligibility for Severance
is conditioned on Employee having first signed a release agreement in the
form attached as Exhibit B and a termination certificate as provided for
in Paragraph 4 in the form of Exhibit
A.”
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3. Original Agreement.
Except as specifically herein amended, the Agreement is and shall remain in full
force and effect according to the terms thereof. In the event of any conflict
between the Agreement and this Amendment, this Amendment shall
control.
4. Entire
Agreement. This Amendment coupled with the Agreement
contain the entire
agreement between Employer and Employee relating to Employee’s employment with
Employer, and they supersede all previous agreements, whether oral or
written.
5. Counterparts. This
Amendment may be executed in several counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same
agreement.
IN
WITNESS WHEREOF, this Amendment has been executed by the parties as of the date
first referenced above.
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“Employee”
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Dated: January
19, 2010
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By: /s/ Xxxxx X.
Xxxx
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Print
Name: Xxxxx X. Xxxx
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Its:
(title) Chief Executive Officer and Chairman
of
Board of Directors
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“Employer”
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St.
Xxxxxxx Software, a Delaware corporation
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Dated:
January 19, 2010
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By: /s/ Xxxxxxxx
X.
Polanen
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Print
Name: Xxxxxxxx X. Polanen
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Its: (title)
Director
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Exhibit
A
PERFORMANCE
BONUS PLAN
Total
Revenue Targets for 2010 (Subscription Revenues and Appliance
Revenues):
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Quarter
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Q1
2010
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Q2
2010
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Q3
2010
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Q4
2010
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Target
Revenues
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$TQ1
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$TQ2
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$TQ3
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$TQ4
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Target
Bonus
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$9,375
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$9,375
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$9,375
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$9,375
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Employee
shall be entitled to a quarterly bonus, not to exceed $9,375 per quarter, if,
during the Initial Term of Employee’s Employment Agreement, St. Xxxxxxx
Software, Inc. (the “Company”) achieves actual quarterly total revenues of
eighty percent (80%) or more of the quarterly revenue targets listed
above. If during any quarter the Company actual total revenue
is 100% or more of the revenue target for a particular quarter, then Employee
shall be entitled to 100% of the target revenue bonus, or $9,375 for that
quarter. If the Company achieves 80% of the revenue target for a
particular quarter, then Employee shall be entitled to 80% of the targeted
revenue bonus, or $7,500 ($9,375 x 0.80), and anything above 80% will be
prorated. So by way of example, if the Company achieves 95% of the
revenue target for a particular quarter, then Employee shall be entitled to 95%
of the targeted revenue bonus, or $8,902.25 ($9375 x 0.95). No bonus
will be paid in a quarter if the actual revenue for that quarter is less than
eighty percent (80%) of the revenue target for that quarter.
Operating
Income Targets for 2010:
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Quarter
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Q1
2010
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Q2
2010
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Q3
2010
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Q4
2010
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Target
Income(Loss) from Operations
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$TQ1
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$TQ2
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$TQ3
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$TQ4
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Target
Bonus
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$3,125
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$3,125
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$3,125
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$3,125
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Employee
shall be entitled to a quarterly bonus of $3,125 per quarter if, during the
Initial Term of Employee’s Employment Agreement, the Company achieves (i) actual
quarterly loss from operations equal to or less than of the quarterly loss from
operations targets for Q1, Q2, Q3, and Q4, or (ii) actual quarterly profit from
operations that is equal to higher than of the quarterly profit from operations
target for Q1, Q2, Q3, and Q4.
