AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit
10.1
AMENDMENT
TO EMPLOYMENT
THIS
AMENDMENT TO EMPLOYMENT AGREEMENT dated as of March 24, 2009 (this "Amendment"),
is entered into by and between Xxxxx Xxx (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
September 22, 2008 (the “Employment Agreement”);
WHEREAS,
Employee and Employer desire by this Amendment to amend, modify and supplement
the Employment Agreement as set forth herein, effective February 1, 2009 (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. Services; Title.
Commencing on the Amendment Effective Date, Paragraph 1 of the Employment
Agreement is amended and restated in its entirety to read as
follows:
“Services;
Title. Employee shall be employed as Executive Vice President of
Sales and
Marketing (the “Title”)
and provide such services as Employer shall reasonably request to be performed
(the "Services") on a full-time basis and shall devote substantially all of
Employee's work efforts to the business and operations of Employer. The position
shall report directly to the Chief Executive
Officer. Employee's Title shall be subject to change by
Company at any time.”
3. Compensation, Benefits and
Reviews.
(a) Commencing on the Amendment Effective Date, Paragraph 2(a) of the Employment
Agreement is amended and restated in its entirety to read as
follows:
“Pay
Employee's salary by check or direct deposit twice per month in equal
installments in accordance with Employer's regular salary payment schedule,
which shall be paid at the current rate of $8,750 (before deductions made at
Employee's request, if any, and for deductions required by federal, state and
local law) semi-monthly.”
(b) Commencing on the Amendment
Effective Date, Exhibit C to the
Employment Agreement is replaced in its entirety with the 2009 Sales
Variable (Commission) Compensation plan (the “Plan”), attached to this Amendment
as Exhibit
A.
(c) Employer will grant Employee
25,000 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.
4.
Commencing on the Amendment Effective Date, Paragraph 3(a) of the Employment
Agreement, entitled ‘Termination Without Cause” is amended and restated in its
entirety to read as follows:
“a) Termination Without
Cause. In the event Employee shall be (i) terminated by
Employer without “Cause”, (ii) terminated following a Change of Control (as
defined below), or (iii) constructively terminated by being required without
Employees consent to report exclusively to someone other than the Chief
Executive Officer or President of Employer, then Employer shall provide
Employee, subject to appropriate deductions and withholdings, with the
compensation required by Paragraph 2(a) (or then current regular base salary)
plus the amount of the on-target variable compensation defined in paragraph
2(b), plus benefits defined in Paragraph 2(c) and 2(d) of this Agreement, all
for a period of six
(6) months from the date of termination (payable twice per month in equal
installments in accordance with Employer’s regular payroll practices and subject
to appropriate deductions and withholdings) as Severance, plus all accrued
but unpaid salary and vacation time to the date of termination and any
applicable annual bonus which has been earned but not yet paid. 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.”
5. Original Agreement.
Except as specifically herein amended, the Employment Agreement is and shall
remain in full force and effect according to the terms thereof. In the event of
any conflict between the Employment Agreement and this Amendment, this Amendment
shall control.
6. Entire
Agreement. This Amendment coupled with the Employment
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.
7. 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:
April 2 ,2009
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/s/
Xxxxx
Xxx
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Xxxxx
Xxx
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"Employer"
St.
Xxxxxxx Software, a Delaware corporation
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Dated: April
2, 2009
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/s/
Xxxxx X.
Xxxx
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Xxxxx
X. Xxxx
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Chief
Executive Officer, Chief Financial
Officer,
and Chairman of Board of Directors
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Exhibit
A
2009
Sales Variable (Commission) Compensation Plan
Sales Variable (Commission)
Compensation
Variable
(commission) compensation is a part of the total compensation package for all
sales employees. The following describes the variable (commission)
compensation plan for the Executive Vice President of Sales and
Marketing. Variable (commission) compensation will be measured,
earned and paid Monthly based on the following;
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2009
Variable Compensation Plan
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||||||||||||||||||||||||
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Xxxxx
Xxx
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||||||||||||||||||||||||
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Q1
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Q2
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Q3
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Q4
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FY
09
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||||||||||||||||||||
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Operating
Plan Billing Targets (per Board approved target)
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$ | TQ1 | $ | TQ2 | $ | TQ3 | $ | TQ4 | $ | TFY09 | ||||||||||||||
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Variable
OTE
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$ | 28,750 | $ | 28,750 | $ | 28,750 | $ | 28,750 | $ | 115,000 | ||||||||||||||
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Minimum
Hurdle for Quarter
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70% |
0.70xTQ1
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0.70xTQ2
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0.70xTQ3
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0.70xTQ4
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|||||||||||||||||||
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(0.70xTQ1)
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||||||||||||||||||||||||
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(0.70xTQ1)
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+ |
+
(0.70xTQ2)
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|||||||||||||||||||||
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(0.70xTQ1)
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+ |
(0.70xTQ2)
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+
(0.70xTQ3)
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|||||||||||||||||||||
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Or
Cumulative Annual
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0.70xTQ1
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(0.70xTQ2)
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+
(0.70xTQ3)
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+
(0.70xTQ4)
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||||||||||||||||||
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Quarterly
Accelerator
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||||||||||||||||||||||||
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>=
100% additional commission on sales above plan
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1% | 1% | 1% | 1% | ||||||||||||||||||||
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>=
105% additional commission on sales above plan
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2% | 2% | 2% | 2% | ||||||||||||||||||||
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>=
110% additional commission on sales above plan
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5% | 5% | 5% | 5% | ||||||||||||||||||||
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Commission
Rate for billing above annual plan:
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2.00% | |||||||||||||||||||||||
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Commission
Rate for OEM billing not including GFI:
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5.00% | |||||||||||||||||||||||
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Qualified
Xxxxxxxx:
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All
net worldwide xxxxxxxx.
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|||||||||||||||||||||||
Variable
(Commission) Compensation Payment
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●
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No
variable (commission) compensation shall be paid if “net billing” is below
70% of the target . Variable (commission) compensation for target of
between 70% to 99.9% will be paid at that percentage rate against Variable
OTE. By way of Example, if actual is 85% of target, then
variable (commission) compensation will be 85% of Variable
OTE.
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●
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Except
for OEM sales, Variable (commission) compensation for “net billing” will
be earned and paid monthly
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●
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For
all OEM sales, variable (commission) compensation will be paid in the
month that the OEM partner is
invoiced
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●
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Variable
(commission) compensation for “net xxxxxxxx” that exceed the 2009 annual
billing plan will be earned and paid in January
2010
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