EXHIBIT 10.32.2
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September 2, 2003
Re: Amendment to Employment Agreement
Dear Nigel:
The purpose of this letter is to amend your current employment
agreement with Extended Systems Bristol Limited ("ESI"), a copy of which is
attached hereto as EXHIBIT A (the "Agreement"). Please read this letter
carefully and acknowledge your approval and consent by signing the enclosed copy
of this letter and returning it to ESI as soon as possible.
By signing this letter, you agree to continue to abide and be bound by
the terms and conditions of the Agreement that is amended as follows:
1. The second to the last sentence of Section 5.3.2 of the Agreement
is hereby deleted in its entirety and the following shall be put in its place
and stead:
The Option will be subject to the terms, definitions and provisions of
the Employer's Stock Plan and the stock option agreement by and between
Employee and the Employer, both of which documents are incorporated
herein by reference; provided, that Employee shall have until the
expiry of 90 days of his termination date (or second anniversary in the
event Section 10 applies) to exercise any options which are vested or
deemed vested as of such date.
2. Sections 9 and 10 of the Agreement are hereby deleted in their
entirety and the following shall be put in their place and stead:
9. Severance Pay.
9.1 Termination Without Cause; Constructive Termination. Except as
provided in Section 10 in the event EMPLOYEE is terminated
without cause, or in the event any of the following events
occur without EMPLOYEE'S consent: (i) EMPLOYEE is relocated;
(ii) EMPLOYEE'S overall compensation package (including but
not limited to salary, bonus, commission structure, fringe
benefits, perquisites, and vacation time) is detrimentally
changed or modified other than in connection with a general
change in compensation for all ESI employees or for all ESI
employees in any group or classification that includes
EMPLOYEE (provided that any reduction in compensation is made
as a result of a decline in ESI's economic conditions, is
temporary, and is no greater than twenty percent (20%) of Base
Salary); or (iii) EMPLOYEE'S position within ESI (including
EMPLOYEE'S officer status with ESI or its parent), or any of
the duties, responsibilities or requirements of EMPLOYEE'S
position, are substantially changed or modified, THEN EMPLOYEE
shall be entitled to receive the following:
9.2.1 An amount equal to six (6) months pay at the EMPLOYEE'S then
current Base Salary (100% of normal base pay) such sum to be
paid within 28 days of the effective date of termination and
where appropriate, such payment shall be subject to deductions
in accordance with P.A.Y.E. regulations as may be in force
from time to time.;
9.2.2 (pound)6,500.00 in lieu of fringe benefits;
9.2.3 All salary, holiday pay and other benefits earned and accrued
to the date of termination; and
9.2.4 A pro rata bonus for the year in which termination occurs
assuming the EMPLOYEE would have received a bonus.
9.2.5 In order to receive the severance payment under Section 9 the
EMPLOYEE must execute a mutually agreeable Compromise
Agreement in the form of "Release of All Employment Claims."
9.2.6 Participation in all stock option plans, stock purchase plans,
and other company personnel benefits shall cease on the
EMPLOYEE'S date of termination, subject to the specific
provisions of option agreements or plans that may extend
EMPLOYEE'S rights beyond the date of termination.
10. Change in Control. Notwithstanding the foregoing, if within 12
months following a Change in Control, EMPLOYEE is terminated for any reason
other than for cause or any of the following events occur without EMPLOYEE'S
consent: (i) EMPLOYEE is relocated; (ii) any component of EMPLOYEE'S
compensation package (including but not limited to salary, bonus, commission
structure, fringe benefits, perquisites, and vacation time) is detrimentally
changed or modified; or (iii) EMPLOYEE'S position within the surviving entity,
or any of the duties, responsibilities or requirements of EMPLOYEE'S position,
are changed or modified in relation to EMPLOYEE'S position within ESI (including
EMPLOYEE'S officer status with ESI or its parent), THEN EMPLOYEE shall be
entitled to receive the following:
10.1 An amount equal to twelve (12) months pay at the EMPLOYEE'S
then current Base Salary (100% of normal base pay) such sum to
be paid within 28 days of the effective date of termination
and where appropriate, such payment shall be subject to
deductions in accordance with P.A.Y.E. regulations as may be
in force from time to time.
10.2 (pound)13,000 in lieu of fringe benefits;
10.3 All salary, holiday pay and other benefits earned and accrued
to the date of termination; and
10.4 A pro rata bonus for the year in which termination occurs
assuming the EMPLOYEE would have received a bonus.
Furthermore, all unvested ESI stock options held by EMPLOYEE
shall automatically vest upon termination (or the occurrence
of an event described in Sections 9.1 (i-iii) and, on or
before the ninetieth (90th) day following termination (or the
triggering event, as the case may be), EMPLOYEE shall have the
option, exercisable by delivery of written notice of exercise
to ESI or its successor, of converting any incentive stock
options into nonqualified stock options with an exercise
period extending until the earliest of twenty-four (24) months
following such date, or the expiration date of such option.
10.5 For purposes of this Agreement, a "Change In Control" shall
mean the occurrence of any of the following events:
10.5.1 A third "person," including a "group," but excluding an
existing stockholder of ESI who is the "beneficial owner" (as
these terms are defined in or for the purposes of Section
13(d) of the Securities Exchange Act of 1934, as amended, and
as in effect on the date hereof) of more than 20% of the total
number of votes that may be cast for the election of directors
of ESI, (A) becomes the beneficial owner of shares of ESI
having more than 50% of the total number of votes that may be
cast for the election of directors of ESI, or (B) otherwise is
able to appoint, designate or control, by proxy, agreement or
otherwise, a majority of the directors of ESI;
10.5.2 The merger or consolidation of ESI with or into any other
corporation or entity or the merger or consolidation of any
other corporation or entity into or with ESI, in which case
those persons who are stockholders of ESI immediately prior to
such merger or consolidation do not receive, as a result of
such merger or consolidation, more than 50% in voting power of
the outstanding capital stock of the surviving corporation; or
10.5.3 Any sale or transfer in a single transaction or series of
related transactions of more than 50% of fair market value of
ESI's assets.
10.5.4 Notwithstanding the above, ESI and EMPLOYEE acknowledge that
this Section 10 shall be triggered and EMPLOYEE shall be
entitled to severance thereunder if after execution of a
definitive agreement but prior to the actual closing of a
Change in Control, EMPLOYEE is terminated in relation to the
Change in Control
10.5.5 Payments. Severance payments may be paid in one lump sum or
in installments at the option of EMPLOYEE.
3. Except as specifically set forth herein, the Agreement shall
remain in full force and effect. This Amendment shall be governed in all
respects in accordance with the laws of England and Wales. This Amendment may be
executed in counterparts, each of which shall be an original and all of which
together shall constitute the same document. This Amendment shall be binding
upon, and inure to the benefit of, the parties and their respective permitted
successors and assigns.
Very truly yours,
Extended Systems of Idaho, Incorporated
By: /s/ Xxxxxxx Xxxxxx
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Its: President and CEO
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Accepted and Approved By:
/s/ Xxxxx X. Xxxxx
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Employee
Dated: 9/10/03
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