AMENDMENT NO. 1 TO CONSULTANT EMPLOYMENT/ENGAGEMENT AGREEMENT
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(Communication Options, LLC f/s/o Xxxxxxx Xxxxxxxx)
Amendment No. 1 ("Amendment") dated as of June 5, 2000, to Consultant
Employment/Engagement Agreement ("Agreement") dated as of March 1, 2000, between
0Xxxxxxxxx.xxx ("Company") and Communication Options, LLC ("COL"), a California
corporation, f/s/o Xxxxxxx Xxxxxxxx ("Xxxxxxxx") (collectively, "Consultant") in
connection with Consultant's provision of marketing support consulting services
to Company ("Services") to develop Company's merchandising display division
("Division"), which Division shall be known as "Communication Options, a
division of 0Xxxxxxxxx.xxx".
Company has agreed to amend the Agreement as a one-time accommodation to
Consultant, subject to the understanding and condition that Consultant will
cease attempts to renegotiate the Agreement during the Term (i.e., one year
commencing on March 1, 2000). This Amendment is intended to cover any and all
activities of Consultant in connection with its relationship to Company,
including any such activities which might be construed to fall outside of the
Agreement under a literal construction thereof.
The Agreement shall be amended only as follows. In all other respects, the
Agreement shall remain in full force and effect:
I. TWO DIFFERENT COMMISSION STRUCTURES/FULL COMMISSION VERSUS OVERRIDE: The
following new subparagraphs shall be inserted between subparagraph 3.(b)
and 3.(c):
a. Full 7.5% Commission: Division shall receive the Commission rate as
provided in Paragraph 3.(b) of the Agreement (i.e., 7.5% of Net Sales
(as defined in the Agreement). If Consultant is "actively servicing" a
given client (i.e, Consultant is personally developing and negotiating
with the client and is generating the related paperwork customarily
required by Company of its sales staff), then Consultant shall receive
the 7.5% Commission directly.
b. Commission Override Only: If Consultant is not actively servicing a
given client himself, then Division shall pay out some portion of the
Commission to those sales person(s) within the Division or Company, as
applicable, directly responsible for such client servicing. Such sales
person(s) shall be paid his, her or their sales commission(s) entirely
out of Division's Commission, and Consultant shall effectively receive
the difference between the Division's Commission and the commission
paid to such sales person(s) as an override thereon.
II. RE-PRICING OF EXISTING STOCK OPTIONS: The following shall be inserted at
the end of Subparagraph 3.(c).a.:
Notwithstanding anything to the contrary set forth in the Agreement or
herein, the Options shall instead be priced at the same price per
share as the Kicker Option (as defined below) if Yahoo's news release
regarding its relationship with Company ("Release") occurs within the
next 90 days (i.e., by September 3, 2000); otherwise, the Options
shall remain priced as originally set forth in the Agreement.
III. SECOND $50,000 ADVANCE ACCELERATED/FORGIVENESS: The following new
subparagraph 3.(e).e shall be added:
Upon the Release, if ever, Consultant shall immediately be entitled to
receive the second $50,000 Advance ("Second Advance") referenced in
Paragraph 3.(e).c of the Agreement (i.e., Consultant will not be
required to wait until Consultant achieves $300,000 in Net Sales for
the Second Advance). Following the Release, Company's Board of
Directors may, in its sole discretion, elect to forgive some or all of
the first $50,000 Advance and/or the Second Advance. Otherwise, the
Advance Forgiveness procedure as provided in Paragraph 3.(e).b. of the
Agreement (i.e., $5,000 forgiven for each $100,000 in Net Sales) shall
apply to the Second Advance.
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IV. 1-TIME "KICKER" STOCK OPTION: The following new subparagraph 3.(f) shall be
added:
On a one-time basis only, subject to approval by Company's Board of
Directors, Consultant shall receive an option to purchase 20,000
shares of Company common stock ("Kicker Option") at a price which
shall be determined by (and equal to) the closing price of the Company
common stock on the American Stock Exchange the night before the
Release. The Kicker Option shall vest in its entirety on the day of
the Release, if ever. If the Release fails to occur within 90 days of
the date of this Amendment (i.e., by September 3, 2000), then the
Kicker Option will expire. All other terms relating to the Kicker
Option shall be as provided in the Stock Option Agreement (Exhibit "A"
to the Agreement).
ACCEPTED AND AGREED:
COMMUNICATION OPTIONS, LLC
f/s/o XXXX XXXXXXXX 0XXXXXXXXX.XXX
By By
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Title Date Title Date
By signing below, Xxxxxxxx acknowledges that he has read this Agreement and
confirms all grants, representations, warranties and agreements made by COL and
agrees to perform the services provided for herein in accordance with the terms
and provisions hereof and, if Xxxxxxxx fails to do so, Xxxxxxxx acknowledges
that Company shall have the same rights and remedies against Xxxxxxxx as Company
has against COL. Xxxxxxxx shall look solely to COL for any compensation
hereunder and, if Xxxxxxxx'x employment agreement with COL becomes ineffective
or if COL ceases to exist, then Xxxxxxxx, at Company's election, may be deemed
substituted as a direct party in lieu of COL.
XXXX XXXXXXXX
By
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Date
