EXHIBIT 10.2
AMENDMENT ONE
TO EMPLOYMENT AGREEMENT
This Amendment One to that certain Employment Agreement between
Infocrossing, Inc., a Delaware corporation (the "Company"), and Xxx X. Xxxxxx
(the "Executive") is effective as of August 14, 2007 (the "Amendment One
Effective Date"). Except as otherwise indicated herein, capitalized terms in
this Amendment One shall have the same meaning as ascribed to such terms in the
Agreement.
RECITAL
WHEREAS, the Company and the Executive desire to amend the Agreement to
comply with the final regulations issued under Section 409A of the Internal
Revenue Code.
NOW THEREFORE, in consideration of the mutual promises contained herein
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:
I. Section 11(b) is hereby amended to add the following new paragraph at
the end thereof to read as follows:
"Notwithstanding anything in this section to the contrary, in the
event that the Executive is subject to the 6-month payment delay
requirement applicable to "specified employees" pursuant to Section
409A of the Code he "separates from service" (as defined for purposes
of Section 409A of the Code), and if the total of the Severance Benefit
payable under this section would exceed the maximum amount permitted
under the separation pay exception set forth in Treasury Regulation
1.409A-1(b)(9)(iii)(A) (or any successor regulation thereto), then the
amount of each monthly installment payable during the 6-month delay
period shall be reduced to an amount equal 1/6th of such maximum amount
and the installments payable during the remainder of the Severance
Period shall be increased accordingly.
Except as amended herein, all terms, covenants, and conditions of the
Agreement shall remain in full force and effect. In the event of a conflict
between the terms of the Agreement without giving effect to this Amendment One
and this Amendment One, this Amendment One will control. This Amendment One may
be executed in one or more counterparts, each of which will be deemed an
original but all of which taken together will constitute one and the same
instrument.
IN WITNESS WHEREOF the parties have executed this Amendment One as of
the Amendment One Effective Date.
INFOCROSSING, INC. XXX X. XXXXXX
By: /s/ XXXXXXXX X. XXXXXXX /s/ XXX X. XXXXXX
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Name: Xxxxxxxx X. Xxxxxxx
Title: Senior Vice President
