EXHIBIT 10.24
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
This First Amendment to Employment Agreement is entered into as of this
1st day of February, 2000 by and between XxxxxxxXxxxxx.xxx, Inc., a Delaware
corporation fka InSite Internet, Inc. (the "Company") and Xxxxxx X. Xxxxxxxx, an
individual with an address at 0000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx
00000 ("Employee").
INTRODUCTION
1. The Company and Employee entered into that certain Employment
Agreement dated as of January 25, 1999 (the "Employment Agreement"), pursuant to
which the Company employed Employee as its Chief Financial Officer.
2. The Company and Employee now desire to amend the Employment Agreement
as hereinafter set forth.
AGREEMENT
In consideration of the premises and mutual promises hereinbelow set
forth, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
I. In Section 1 of the Employment Agreement, after the words
"Chief Financial Officer", the words "and Vice President" are hereby added.
II. A new Section 3.8 regarding severance payments is hereby added
to the Employment Agreement as follows:
"3.8 SEVERANCE PAYMENTS.
3.8.1 TERMINATION BY THE COMPANY. In the event the
Company terminates this Agreement pursuant to Section 5 (Termination Without
Cause), the Company shall, prior to the effective date of the termination, pay
Employee, in one lump sum, an amount equal to (a) 1.5 times Employee's Base
Salary, at his then current rate, less applicable taxes, if termination shall
occur prior to a "Change in Control" or an "Approved Change in Control" (both as
hereinafter defined) or subsequent to an Approved Change in Control, or (b) 2.0
times Employee's annual salary, at his then current rate, less applicable taxes,
if termination shall occur after a Change in Control. The Company shall also pay
Employee's health insurance benefits at described in SECTION 3.2 for a period of
one year in the event of termination pursuant to SECTION 5, and in the event of
a Change in Control, any options granted to Employee shall become fully vested
as of such date of termination in connection with such Change of Control.
3.8.2 DEFINITIONS.
(a) CHANGE IN CONTROL. A "Change in
Control" shall be deemed to have occurred in any of the following events:
(i) the stockholders of the Company
approve a merger or consolidation of the Company with any other corporation,
other than (a) a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity) more than 80% of the combined voting power
of the voting securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, (b) a merger or consolidation
effected to implement a recapitalization of the Company (or similar transaction)
in which no "person" or group (as such terms are defined in Section 13(d)(3) of
the Securities Exchange Act of 1934) acquires more than 30% of the combined
voting power of the Company's then outstanding securities, or (c) a
reorganization pursuant to which the Company creates a holding company for
itself in which the stockholders of the Company immediately prior to the
reorganization (other than those exercising dissenters' rights) become the
stockholders of the holding company immediately after the reorganization; or
(ii) the stockholders of the Company
approve a plan of complete liquidation of the Company or an agreement for the
sale or disposition by the Company of all or substantially all of the Company's
assets; or
(iii) as a result of or in connection
with any cash tender offer, merger, or other business combination, sale of
assets or contested election, or combination of the foregoing, the persons who
were directors of the Company just prior to such event shall cease to constitute
a majority of the Board; or
(iv) when any "person" or "group" (as
such terms are defined in Section 13(d)(3) of the Securities Exchange Act of
1934) becomes a "beneficial owner" (as such term is defined in Rule 13d-3 under
the Securities Exchange Act of 1934), directly or indirectly, of securities of
the Company representing forty percent (40%) or more of the total number of
votes that may be cast for the election of directors of the Company; or
(v) the closing of a transaction or
series of transactions in which more than 50% of the voting power of the Company
is transferred; or
(vi) a tender offer or exchange offer
for the common stock of the Company, other than one made by the Company or by a
person or group (as such terms are defined in Section 13(d)(3) of the Securities
Exchange Act of 1934) that on the date hereof holds more than 5% of the
outstanding shares of the Company entitled to vote for the election of
directors, where the offeror acquires more than 40% of the outstanding shares of
common stock of the Company.
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(b) APPROVED CHANGE IN CONTROL. An
"Approved Change in Control" of the Company shall mean a Change in Control that
is approved by a majority of the Company's Board of Directors."
III. Sections 4 and 5 of the Employment Agreement are hereby deleted and
replaced in their entirety by the following new Sections 4 and 5:
4. TERMINATION FOR CAUSE; DISABILITY
4.1 TERMINATION FOR CAUSE. The Company may discharge
Employee and terminate his employment under this Agreement for cause without
further liability to the Company. As used in this Section 4.1, "cause" shall
mean any or all of the following: (i) gross or willful misconduct of Employee
during the course of his employment; (ii) conviction of a felony or any criminal
offense involving dishonesty, breach of trust or moral turpitude during the
Employment Period; or (iii) Employee's breach of any of the material terms of
this Agreement. In the event of a for cause termination, all stock options
granted to the Employee, whether vested or not vested, shall immediately
terminate.
4.2 DISABILITY. If during the Employment Period, Employee
shall become ill, disabled or otherwise incapacitated so as to be unable to
perform his usual duties (a) for a period in excess of one hundred twenty (120)
consecutive days or (b) for more than one hundred eighty (180) days in any
consecutive twelve (12) month period, then the Company shall have the right to
terminate this Agreement without further liability on thirty (30) days' prior
notice to Employee.
5. TERMINATION WITHOUT CAUSE. Upon ninety (90) days prior written
notice, the Company may terminate this Agreement without cause and without
further liability to the Company except as set forth in SECTION 3.8.
IV. Except as modified herein, the Employment Agreement is hereby
ratified, confirmed and approved in all respects.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ATTEST: XXXXXXXXXXXXX.XXX, INC.
By:/s/ XXXX X. XXXXX
---------------------------- ----------------------------------
Title: CEO
WITNESS: EMPLOYEE:
/s/ XXXXXX X. XXXXXXXX
---------------------------- ----------------------------------
Xxxxxx X. Xxxxxxxx
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