Exhibit 2
THIRD AMENDMENT dated as of December 11, 2001 to the Amended Agreement
dated as of the 12th day of February 2001 by and between Elektryon, Inc. (the
"Company") and Xxxxxx Xxxxxxxxxxx (the "Employee").
W I T N E S S E T H:
WHEREAS, the Employee and the Company entered into an Employment Agreement
dated December 15, 2000 which was amended by an Amended Agreement dated as of
the 12th day of February 2001, which agreement was subsequently amended by a
First Amendment dated as of July 3, 2001 and a Second Amendment dated as of
August 23, 2001 (as amended, the "Employment Agreement"); and
WHEREAS, parties desire to further amend the Employment Agreement to void
the Second Amendment to the Employment Agreement and to make certain other
changes.
NOW, THEREFORE, effective as of August 23, 2001, the parties hereto agree
as follows:
1. The Second Amendment to the Employment Agreement, dated as of August
23, 2001, is null and void and of no further force and effect.
2. Section 2(c) of the Employment Agreement shall be amended by addition
of the following language at the end thereof:
"On or about November 15, 2001, the Company shall pay to the
applicable automobile leasing company an amount equal to the `buy out'
amount of the Employee's leased automobile and the title of such
automobile shall be registered in the name of the Employee. The
Company shall pay the operating costs of such automobile (including,
without limitation, insurance, gas, maintenance and repairs) while the
Employee is employed by the Company and the Company shall also provide
Employee with tax gross-up payments so that after applicable taxes are
incurred with regard to the automobile and operating costs the
Employee will be kept whole."
3. Section 2(e) of the Employment Agreement shall be amended by the
addition of the following at the end thereof:
"Notwithstanding the foregoing, the 250,000 stock options heretofore
granted to the Employee, shall, and hereby are, repriced as of
November 1, 2001 to have an exercise price of $0.50 per share and, all
applicable documents shall be deemed modified accordingly."
4. Section 3(a)(i) of the Employment Agreement shall be amended by the
deletion of the following language:
"but in any event no less than one year's annual salary"
5. Section 3(b) of the Employment Agreement shall be amended first by
revising the first sentence thereof to read as follows:
"Termination by the Company Without Cause or the Employee's Voluntary
Resignation for Good Reason. If the Employee's Termination Date occurs
during the Employment Period and is as a result of the Employee's
termination of employment by the Company without Cause (as defined
below) or the Employee's voluntary resignation for Good Reason (as
defined below), then the Employee shall receive from the Company a
lump sum cash payment equal to $150,000 as soon as practicable after
the Employee's Termination Date."
and second by adding the following at the end thereof:
"For purposes of this Agreement, Good Reason shall mean: (i) any
material diminution of Employee's positions, duties or
responsibilities hereunder, (ii) any adverse change in the Employee's
title, (iii) any material breach by the Company of any provision of
this Agreement or (iv) the end of the sixty (60) day period following
consummation of a sale of all or substantially all of the assets of
the Company. The Good Reason events described in subparts (i) through
(iii) above, shall only constitute Good Reason if the Company fails to
cure such event within thirty (30) days after written notice of such
event is received by the Company."
6. As amended, the Employment Agreement shall remain in full force and
effect.
7. This Third Amendment may be executed in one or more counterparts, each
of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
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[Signatures on next page.]
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IN WITNESS WHEREOF, this Third Amendment has been executed as of the date
first above written.
ELEKTRYON, INC.
/s/ Xxxxxxx Xxxxx
By: ---------------------------
Xxxxxxx Xxxxx
/s/ Xxxx Xxxxxxxx
By: ---------------------------
Xxxx Xxxxxxxx
/s/ Xxxxxx Xxxxx
By: ---------------------------
Xxxxxx Xxxxx
/s/ Xxxxxx Xxxxxxxxxxx
------------------------------
Xxxxxx Xxxxxxxxxxx
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