FIRST AMENDMENT TO EMPLOYMENT AGREEMENT BY AND BETWEEN NEOMEDIA TECHNOLOGIES, INC. AND IAIN MCCREADY
EXHIBIT
10.2
FIRST
AMENDMENT TO EMPLOYMENT AGREEMENT
BY
AND BETWEEN
NEOMEDIA
TECHNOLOGIES, INC.
AND
XXXX
XXXXXXXX
This
First Amendment to Employment Agreement (this “Amendment”) is made
and entered into between NeoMedia Technologies, Inc., a Delaware corporation
(the “Employer”), and Xxxx
XxXxxxxx (the “Employee”), effective
as of January 1, 2010. The Employer and the Employee may be individually
referred to as a “Party” or
collectively as the “Parties”.
RECITALS
WHEREAS, the Parties entered
into that certain employment agreement, dated June 10, 2008 (the “Agreement”);
WHEREAS, Section 13 of the
Agreement provides that the terms of the Agreement may be modified as agreed to
in writing as executed by the Parties; and
WHEREAS, the Parties desire to
amend the Agreement pursuant to certain resolutions adopted by the Company’s
compensation committee on December 13, 2009 and November 28, 2008 and in
connection with certain financing arrangements entered into between the Company
and certain third-parties.
NOW THEREFORE, in
consideration of the premises and the mutual promises contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, each Party hereby agrees as follows:
|
1.
|
Recitals. The
recitals stated above are true and correct and incorporated hereunto the
body of this Amendment as if fully stated
herein.
|
|
2.
|
Capitalized
Terms. Capitalized terms not defined in this Amendment
shall have the meaning given to them in the
Agreement.
|
|
3.
|
Amendment of Section
1(b). The Parties agree that Section 1(b) of
the Agreement shall be amended to read, in its
entirety:
|
(b) Subject
to the terms and conditions herein, the initial term of employment shall
commence on May 29, 2008 (the “Effective Date”) and
shall terminate on May 29, 2012 unless earlier terminated as herein provided
(the “Initial
Term”). In the event that either party desires to extend the Initial Term
for an additional period of time such party shall provide the other party with
written notice of such desire at least six (6) months prior to the expiration of
the Initial Term. Following such notice, the Initial Term may be extended upon
mutual agreement of the parties hereto. The Initial Term and any extensions
thereof shall be referred to as the “Employment
Period”.
|
4.
|
Amendment of Section
3(b). The Parties agree that Section 3(b) of
the Agreement shall be amended to read, in its
entirety:
|
(b) Incentive
Bonus Compensation. The Executive shall receive incentive
bonus compensation (the “Incentive Bonus”) for
each year of this Agreement as follows:
(i) First Year. For the
period of June 10, 2008 until June 10, 2009, the Executive shall be entitled to
receive a bonus up to fifty percent (50%) of the Base Compensation, based upon
objectives, and delivered at such times, as determined by the Board of Directors
or the Compensation Committee thereof in its sole discretion. The
Executive acknowledges that Twenty-Thousand British Pounds Sterling (£20,000) of
such bonus payment were delivered to the Executive in August 2008, and
Thirty-Thousand British Pounds Sterling (£30,000) of such bonus payment were
delivered to the Executive in December 2008.
(ii)
Second Year.
For the period of June 11, 2009 through June 10, 2010, the Executive shall be
entitled to receive a bonus up to fifty percent (50%) of the Base Compensation,
based upon objectives, and delivered at such times, as determined by the Board
of Directors or the Compensation Committee thereof in its sole
discretion
(iii)
Third Year. For
the period of June 11, 2010 through June 10, 2011, the Executive shall be
entitled to receive a bonus up to fifty percent (50%) of the Base Compensation,
based upon objectives, and delivered at such times, as determined by the Board
of Directors or the Compensation Committee thereof in its sole
discretion.
(iv)
Fourth Year.
For the period of June 11, 2011 through May 29, 2012, the Executive shall be
entitled to receive a bonus up to fifty percent (50%) of the Base Compensation,
based upon objectives, and delivered at such times, as determined by the Board
of Directors or the Compensation Committee thereof in its sole
discretion.
The Incentive Bonus shall be subject to
applicable tax and payroll deductions required by law. The Incentive Bonus shall
be pro rated for any of the periods listed above that are less than a full
calendar year.
|
5.
|
Amendment to Section
3(c). The Parties agree that the first paragraph of Section 3(c) of
the Agreement shall be amended to read, in its
entirety:
|
(c) Sale
Bonus. If (i) the Company has consummated a Sale Transaction
(as defined below) by May 29, 2012, (ii) the Sale Proceeds (as defined below)
are in excess of $45,000,000, (iii) the Executive remains actively employed with
the Company through the consummation of the Sale Transaction, (iv) the Executive
is otherwise in compliance with the terms of this Agreement as may be amended at
any time in the future, and (v) the Executive complies with, and uses
commercially reasonable efforts to take such actions as are necessary to cause
the Company to comply with, the terms and conditions of agreements entered into
by the Executive or the Company effecting or otherwise relating to the Sale
Transaction, the Executive will be eligible to receive a sale bonus in
connection with such Sale Transaction equal to the product of 0.025 and the Sale
Proceeds; provided, that for the purposes of such calculation the amount of Sale
Proceeds shall be deemed to not exceed $200,000,000 (the “Sale Bonus”). The
Sale Bonus shall be subject to any applicable tax and payroll deductions
required by law.
- 2
-
|
6.
|
Amendment to Section
3(a). The Parties agree that Section 3(a) of
the Agreement shall be amended to read, in its
entirety:
|
(a)(i)
Base
Salary. During the Employment Period, the Company shall pay to
the Executive an annual base salary (“Base Compensation”)
of One Hundred Sixty Thousand British Pounds Sterling (£160,000) payable through
a payroll bureau located in the United Kingdom of Great Britain and Northern
Ireland in accordance with the Company’s customary payroll periods or such other
basis as may be determined by the Board of Directors and subject to any
applicable tax and payroll deductions required by law.
(ii)
Salary Reduction
Period. Notwithstanding Section 3(a)(i)
above, for the period of April 1, 2009 though December 31, 2009 (the “Salary Reduction
Period”), the Base Compensation of the Executive shall be equal to One
Hundred Forty-Four Thousand British Pounds Sterling (£144,000), as pro rated for
such period. In connection with the reduction of the Executive’s salary during
the Salary Reduction Period, subject to the approval of the Company’s Stock
Option Committee, the Executive shall be entitled to receive Eight Hundred
Eighty-Six Thousand Two Hundred Sixty (886,260) shares of the Company’s common
stock, par value $0.01 per share (the “Common Stock”), at a
per share exercise price of $0.02 per share (the “Salary Reduction
Option”). The Salary Reduction Option shall vest with respect to
1/12th of the
shares subject to such option on the last day of each month commencing on May
29, 2009, pursuant to the terms of the Company’s standard form of stock option
agreement and the Company’s stock option plan, subject to the Executive’s
continued employment with the Company on such dates, such that the Salary
Reduction Option is vested and exercisable with respect to one hundred percent
(100%) of the shares subject to the Salary Reduction Option as of April 29,
2010. Amendment to
Section 3(d). The Parties agree that Section 3(d) of the
Agreement shall be amended to read, in its entirety:
Subject
to the approval of the Stock Option Committee or the Company’s Board of
Directors, the Company shall issue to the Executive (i) an option to acquire
Sixteen Million Twenty-Five Thousand Six Hundred Forty-Three (16,025,643) shares
of Common Stock, at a per share exercise price to be determined prior to or upon
the date of the grant (the “First Option”), (ii)
an option to acquire Sixteen Million Twenty-Five Thousand Six Hundred
Forty-Three (16,025,643) shares of Common Stock at a per share exercise price to
be determined prior to or upon the date of the grant (the “Second Option”), and
(iii) an option to acquire Eighteen Million (18,000,000) shares of the Common
Stock at a per share exercise price to be determined prior to or upon the date
of the grant (the “Third Option”, and
together with the First Option, Second Option, and Salary Reduction Option, the
“Options”). The
First Option shall vest with respect to one hundred percent (100%) of the shares
subject to the First Option, eighteen months after the Effective Date, subject
to the Executive’s employment with the Company on such date. The Second Option
shall vest with respect to 1/15th of the
shares subject to the Second Option, each month following the Effective Date,
subject to the continued employment of the Executive with the Company on such
dates, such that the Second Option is vested and exercisable with respect to one
hundred percent (100%) of the shares subject to the Second Option, fifteen (15)
months after the Effective Date. The Third Option shall vest in equal monthly
increments of Seven Hundred Fifty Thousand (750,000) shares on the 29th day of
each month commencing on June 29, 2010, subject to the continued employment of
the Executive with the Company on such dates, such that the Third Option is
vested and exercisable, with respect to one hundred percent (100%) of the shares
subject to the Third Option, as of May 29, 2012. Notwithstanding the foregoing,
upon the occurrence of a Sale Transaction or Change in Control (as defined
below) all unvested Options immediately shall be vested and exercisable. Except
as otherwise expressly provided in this Agreement, all terms and conditions
concerning the granting and exercise of the Options awarded to the Executive
hereunder, shall be governed by the Company’s option plan, as such plan may be
amended from time to time. The Options shall be memorialized by stock option
agreements between the Company and the Executive.
- 3
-
A “Change of Control”,
as such term is used herein, is defined as, and has occurred when: (i) any
person (defined herein to mean any person within the meaning of Section 13(d) of
the Securities Exchange Act of 1934, as amended, or “13(d)”), other than
the Company, or an employee benefit plan established by the Company’s Board of
Directors, acquires, directly or indirectly, the beneficial ownership
(determined under rule 13d-3 of 13(d)) of securities issued by the Company
having forty percent (40%) or more of the voting power of all the voting
securities issued by the Company in the election of directors at the meeting of
the holders of voting securities to be held for such purpose; or (ii) a majority
of the directors elected at any meeting of the holders of voting securities of
the Company are persons who were not nominated for such election by the
Company’s Board of Directors or a duly constituted committee of the Company’s
Board of Directors having authority in such matters; or (iii) the Company
mergers or consolidates with or transfers substantially all of its assets to
another person.
|
7.
|
Retroactive
terms. The Parties acknowledge that all terms of the
amendments set forth herein with respect to all forms of compensation owed
by the Company to the Executive prior to the date of this Amendment are
accurately reflected as set forth herein and that this Amendment contains
the entire understanding of the Parties with respect to the subject matter
thereto.
|
|
8.
|
Counterparts. This
Amendment may be executed in one or more counterparts, each of which shall
be deemed to be an original but all of which together shall constitute one
and the same instrument.
|
|
9.
|
Reaffirmation of Other
Terms and Conditions. Except as expressly modified or
contradicted by this Amendment, all other terms and conditions of the
Agreement and all exhibits and schedules thereto (if any) shall remain in
full force and effect, unmodified and unrevoked and the same are hereby
reaffirmed and ratified by the Parties as if fully set forth
herein.
|
**
SIGNATURE PAGE FOLLOWS **
- 4
-
IN WITNESS WHEREOF, the
Parties have caused this First Amendment to Employment Agreement to be executed
on the date first written above.
| EMPLOYER: | EMPLOYEE: | ||||
| NEOMDIA TECHNOLOGIES, INC. | |||||
| By: |
/s/
Xxxxxxx X. Xxxx
|
/s/
Xxxx X. XxXxxxxx
|
|||
| Name: |
Xxxxxxx
X. Xxxx
|
Xxxx
X. XxXxxxxx
|
|||
| Its: |
Chief
Financial Officer
|
|
|||
- 5
-
