EXHIBIT 10.2
FIRST AMENDMENT TO
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
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This FIRST AMENDMENT TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT
(this "Amendment") is made and entered into as of February 3, 1998, by and
between TresCom International, Inc., a Florida corporation (the "Employer"), and
Xxxxxx X. X'Xxxxx (the "Executive").
W I T N E S S E T H:
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WHEREAS, the Employer and the Executive previously entered into an
Amended and Restated Employment Agreement dated as of February 15, 1997 (the
"Agreement"); and
WHEREAS, it is now the intention of the Employer and the Executive to
amend the Agreement as set forth below;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Employer and the Executive
agree as follows:
1. Section 3 of the Agreement is hereby supplemented as follows:
3.8 Special Bonus.
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3.8.1 In the event of a Change in Control, and subject to
the provisions of Sections 3.8.2 and 3.8.3, the Executive shall
be eligible to receive a one-time special bonus of $1.5 million
(the "Special Bonus").
3.8.2 The total amount of the Special Bonus shall be
payable to the Executive in three equal installments as follows:
(i) the first installment shall be payable contemporaneously with
the closing of any transaction constituting a Change in Control,
or, if no closing is required with respect to such Change in
Control, within 15 business days after public notice of the
Change in Control has been made; (ii) the second installment
shall be payable on the first anniversary of the payment of the
first installment; and (iii) the third installment shall be
payable on the second anniversary of the payment of the first
installment; provided, however, that each such payment shall be
contingent on the Executive being then currently employed by the
Employer, or any corporate successor or successor's assignee (the
"Successor"); and provided, further, that if after a Change in
Control, there is a Termination pursuant to Section 4.3.2, 4.3.3,
4.3.4, 4.3.5 or 4.3.6 of the Agreement, the remaining amount of
the Special Bonus, if any, shall accelerate and be payable to the
Executive (or his personal representative) within five business
days of such Termination, except for a Termination pursuant to
Section 4.3.4 of the Agreement, in which case such Special Bonus
shall be immediately payable upon such Termination.
3.8.3 Notwithstanding anything to the contrary contained in
this Agreement, if payments under this Section 3.8 are to be made
as a result of a Change in Control, and such Change in Control
constitutes a change in the ownership or effective control of the
Employer (within the meaning of Section 280G of the Internal
Revenue Code (the "Code") and the regulations issued thereunder),
the amount so payable shall be reduced, so that the present value
of such payments and the value of accelerating the exercise of
any stock options in respect of such Change in Control
(determined in accordance with Code Section 280G(d)(4)), computed
on the date of such Change in Control, shall not exceed 2.99
times the Executive's average annual compensation which is
includible in his gross income (for federal income tax purposes)
during the most recent five taxable years ending before that date
on which such Change in Control occurs.
2. Section 4.2.2(vi) of the Agreement is hereby amended and restated
in its entirety as follows:
"(vi) "Good Reason" shall, upon a Change in Control, mean the
occurrence, without the Executive's express written consent, of
any of the following circumstances, unless such circumstances are
fully corrected prior to the date of termination specified in the
termination notice given with respect thereto: (A) if the
Executive is requested to execute a new employment contract by a
Successor, the failure of the Executive to obtain an agreement in
form and substance reasonably satisfactory to him from such
Successor to provide employment to the Executive in the capacity
of a senior executive, at his then current Base Salary, for a
period of at least two years from the date of the Change in
Control; (B) the failure of the Executive to continue to be
retained as an employee in a senior executive position; (C) a
reduction by the Employer or the Successor in the Executive's
Base Salary currently payable pursuant to Section 3.1 hereof; or
(D) a relocation of the Executive's office to a location more
than 50 miles from the current executive office of the Employer
and a failure to make the Executive whole for all losses and
costs reasonably incurred in connection with the relocation,
including, but not limited to, moving expenses, forfeited bonds,
fees or escrows to clubs or other organizations and losses from
the sale of the Executive's personal residence."
3. All capitalized terms used herein and not otherwise defined shall
have the meaning ascribed to them in the Agreement.
4. Except as expressly provided for in this Amendment, all terms,
conditions or obligations contained in the Agreement shall remain unchanged and
in full force and effect.
5. In the case of any inconsistency between this Amendment and the
terms of the Agreement, the terms of this Amendment shall govern.
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6. Notwithstanding anything to the contrary contained in this
Amendment or the Agreement, Section 3.8 shall survive the termination of the
Agreement, if any, for a period of two years from the date of any Change in
Control.
7. Notwithstanding anything to the contrary contained in the
Agreement, the Executive's rights and obligations under this Amendment and the
Agreement shall not be transferable by assignment or otherwise, and any
purported assignment, transfer or delegation thereof shall be null and void.
This Amendment and the Agreement shall inure to the benefit of, and be binding
upon and enforceable by any Successor.
8. THIS AMENDMENT SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO SUCH STATE'S CONFLICT
OF LAWS RULES.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Amendment as of the day and year first above written.
TRESCOM INTERNATIONAL, INC.
By: /s/ Xxxxxxx XxXxxxxxx
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Name: Xxxxxxx XxXxxxxxx
Title: Chief Operating Officer
By: /s/ Xxxxxx X. X'Xxxxx
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Name: Xxxxxx X. X'Xxxxx
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