Exhibit 10.5
AMENDMENT TO EMPLOYMENT AGREEMENT
This document amends that certain Employment Agreement ("Agreement")
made as of the 1st day of June, 2000, by and between Xxxxxx Technologies, Inc.
(hereinafter called the "Company") and Xxxxxx Xxxxxxxx (hereinafter called the
"Employee"), and Exhibit B thereto.
The parties hereto agree that Section 8 of the Agreement will be
replaced with the following effective as of the date of execution hereof:
8. SEPARATION PAY BENEFITS. See Section 4 of Exhibit B of this
Agreement for the separation pay benefits to be provided to Employee in
certain situations.
The parties hereto agree that Section 4 of the Exhibit B of the
Agreement will be replaced with the following effective as of the date of
execution hereof:
4. SEPARATION BENEFITS.
A. PROVISION OF SEPARATION BENEFITS. In the event that the
Employee's employment with all members of the Company Group is
terminated, the Company shall, subject to the requirement of
subsection B below, provide the separation benefits specified
in subsection C below unless the Employee's termination of
employment results from:
1. The Employee voluntarily resigning or otherwise
terminating her employment or services (including job
abandonment, death or disability) with any member of
the Company Group for any reason.
2. The termination of the Employee's employment by a
member of the Company Group at a time when the
Employee has an offer of immediate employment with
another member of the Company Group.
3. The termination of the Employee's employment by a
member of the Company Group for "Cause".
B. SEPARATION BENEFITS CONTINGENT ON EXECUTED AND VALID RELEASE.
No separation benefits specified in subsection C below shall
be provided to the Employee unless and until the Employee has
executed a separation and release agreement with the Company
in a form reasonably acceptable to the Company, and such
separation and release agreement has become valid and
enforceable. Such separation and release agreement shall
contain provisions in which (1) the Employee shall agree to a
date of termination of employment with all members of the
Company Group, and (2) the Employee shall release and
discharge the Company Group and their related employees,
directors, consultants, advisors, and other persons from any
claim or liability, whether known or unknown, arising out of
the Employee's employment with members of the Company Group or
the termination of such employment.
C. SEPARATION BENEFITS TO BE PROVIDED. The separation benefits
that the Employee shall receive under subsection A above shall
consist of:
1. A cash amount equal to one-twelfth (1/12) of the
regular annual salary (exclusive of bonuses,
commissions, and any other extra compensation) of the
Employee in effect as of the Employee's date of
termination of employment multiplied by the number of
months of the Employee's Separation Period, which
shall be payable in installments consistent with the
Company's general payroll practices over the
Employee's Separation Period; and
2. Reimbursement of any COBRA group health plan premiums
paid by the Employee for the coverage of the Employee
and/or any of the Employee's covered dependents
during the Separation Period. Reimbursements will be
made within fifteen (15) days following submission of
proof of the expense and the payment thereof by the
Employee.
All payments will be subject to applicable federal, state and local tax
withholdings.
D. DEFINITIONS. For this purpose, the following terms shall have
the following meanings:
1. The term "Disability" shall mean that the Employee
has been determined to be disabled under the
company's long-term disability plan, if any, and/or
under the Federal Social Security Act.
2. The term "Cause" shall mean an act or acts by the
Employee involving (a) the use for profit or willful
disclosure to unauthorized persons of confidential
information or trade secrets of the Company, a Parent
or a Subsidiary in violation of company policy or
company agreements with such persons protecting such
matters, (b) the material and willful breach of any
written contract between the Employee and the
Company, a Parent or a Subsidiary, or of any
employment or business policies of the Company, a
Parent or a Subsidiary (including, without
limitation, theft or misuse of Company property) (c)
the unlawful trading in the securities of the
Company, a Parent or a Subsidiary, or of another
corporation based on information gained as a result
of the performance of services for the Company, a
Parent or a Subsidiary, (d) a conviction for, or
pleading NOLO CONTENDERE to, a felony or other crime
involving moral turpitude or dishonesty (other than
traffic violations and similar misdemeanors), or (e)
any other act or omission by Employee which is in
violation of the Agreement or written company policy
and which the Company in good faith believes has
occurred to its material detriment and about which
Employee has received at least one (1) written
warning by the Company and despite such prior written
warning, Employee has on a second occasion committed
such act or omission.
3. The term "Company Group" shall mean the Company and
any parent or subsidiary of the Company (or a
successor entity of any such entity).
4. The term "Separation Period" shall mean the lesser of
(1) a number of months equal to the sum of six (6)
plus the Employee's number of completed (not partial)
years of service with members of the Company Group as
of her date of termination of employment, or (2)
twelve (12) months; provided, however, to the extent
that the Employee receives any payments of base
salary, excluding any earned vacation pay, prior to
her termination of employment for a period of time
while she is performing no (or DE MINIMIS) services
for the Company Group, such period of time shall be
subtracted from her Separation Period.
All other provisions of the Agreement shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have hereunto set forth their
signatures as of this 22ND day of AUGUST 2001.
EMPLOYEE: COMPANY:
Xxxxxx Technologies, Inc.
/s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
By: /s/ Xxxxx Xxxxxx
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Its: Chief Executive Officer
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