EXHIBIT 10.70
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AMENDMENT TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT
BY AND BETWEEN
XXXXXXXXX.XXX INCORPORATED
AND
XXXXXXX X. XXXX
DECEMBER 10, 2001
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The Amended and Restated Employment Agreement, dated as of November 20,
2000 (the "EMPLOYMENT AGREEMENT"), by and between xxxxxxxxx.xxx Incorporated and
Xxxxxxx X. Xxxx, is hereby amended in the following manner:
1. The first sentence of Section 2(a) of the Employment Agreement is
hereby amended and replaced in its entirety to read as follows:
"Executive shall serve as President and Chief Operating Officer of
the Company."
2. Section 2(a) of the Employment Agreement is hereby amended by adding
the following two sentences at the end of Section 2(a):
"Executive shall serve during the Employment Term as a member of the
Board of Directors of the Company. Upon termination of Executive's
employment with the Company, Executive shall resign from the Board
of Directors."
3. Section 4(c)(iv) of the Employment Agreement is hereby amended and
replaced to read in its entirety as follows:
"(iv) TERMINATION. Upon Executive's Termination for Cause or
Termination without Good Reason, the unvested portion of the Option
shall be immediately forfeited and canceled. Upon termination of
Executive's employment with the Company, the portion of the Option
that is not, and does not become, vested in accordance with the
terms hereof shall be immediately forfeited and canceled. The vested
portion of the Option shall expire on the earlier of (i) the tenth
(10th) anniversary of the Date of Grant, or (ii) (A) eighteen (18)
months after any termination if the termination is as of the result
of Executive's death, Termination for Disability, Termination
without Cause, Termination for Good Reason or non-extension of the
Employment Term in accordance with Section 1 hereof as a result of
notice from the Company, and (B) ninety (90) days after such
termination if such termination is a result of Executive's
Termination for Cause or non-extension of the Employment Term in
accordance with Section 1 hereof as a result of notice by
Executive."
4. The first sentence of Section 8(c) of the Employment Agreement is
hereby amended and replaced to read in its entirety as follows:
"A Termination for Good Reason means a termination by Executive by
written notice given within ninety (90) days after the occurrence of
the Good Reason event, and other than in the case of (vii) below,
unless such circumstances are fully corrected prior to the date of
termination specified in the Notice of Termination for Good Reason
(as defined in Section 8(d) hereof)."
5. The second sentence of Section 8(c) of the Employment Agreement is
hereby amended to add at the end of the sentence:
"or (vii) the resignation by Executive from the Company at any time
after November 20, 2001."
6. Section 9(d) of the Employment Agreement is hereby amended to read in
its entirety as follows:
"(a) TERMINATION WITH CAUSE. If Executive's employment hereunder is
terminated by the Company for Cause, the Executive shall be entitled
to receive only his Base Salary through the date of termination, and
any unreimbursed business expenses payable pursuant to Section 7.
Executive's rights under all benefits plans and equity grants shall
be determined in accordance with the Company's plans, programs and
grants, except as provided in Section 4(c) and (d) hereof with
respect to the Option and the Restricted Stock."
IN WITNESS WHEREOF, the parties hereto have executed this amendment as of
December 10, 2001.
XXXXXXXXX.XXX INCORPORATED
/s/ Xxxxxxx Xxxxxxxx
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By: Xxxxxxx Xxxxxxxx
Title: Chairman and Chief Executive
Officer
/s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
