Exhibit 10.1
AMENDMENT TO EMPLOYMENT AGREEMENT
This document amends that certain Employment Agreement ("Agreement")
executed as of the July 22nd, 1998, by and between Xxxxxx Technologies, Inc.
(hereinafter called the "Company") and Xxxxx XxXxxxxxxxx (hereinafter called the
"Employee").
The parties hereto agree that Section 8 of the Agreement shall be
amended to read as follows effective as of the date of execution hereof:
8. 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
his 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 his 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 his termination of employment for a period of
time while he is performing no (or DE MINIMIS) services for
the Company Group, such period of time shall be subtracted
from his 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 4th day of September, 2001.
EMPLOYEE: COMPANY:
Xxxxxx Technologies, Inc.
/s/ Xxxxx XxXxxxxxxxx
-----------------------------------
Xxxxx XxXxxxxxxxx
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Its: PRESIDENT AND CHIEF OPERATING OFFICER
