Exhibit 10.7(b)
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
This FIRST AMENDMENT to the EMPLOYMENT AGREEMENT dated February 14, 2000
between INTERLAND, INC (tile "Company") and H. XXXXXXXXXXX XXXXXXXXX
("Executive") is made and entered into between the Company and the Executive as
of November 10, 2000.
The parties agree as follows:
1. A new section, Section 22, shall be added at the end of the Employment
Agreement as follows:
22. Change in Control Payments
(a) Anything in this Agreement to the contrary notwithstanding, in the
event it shall be determined (as hereafter provided) that any payment or
distribution to or for the Executive, whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or pursuant to or by
reason of any other agreement, policy, plan, program or arrangement (including,
without limitation, any employment agreement, stock plan or salary continuation
agreement), or similar right (a "Payment"), would be subject to the excise tax
imposed by Section 4999 of the Code (or any successor provisions thereto), or
any interest or penalties with respect to such excise tax (such excise tax,
together with any such interest and penalties, are hereafter collectively
referred to as the "Excise Tax"), then the Executive shall be entitled to
receive an additional payment or payments (a "Gross-Up Payment") from the
Company. The total amount of the Gross-Up Payment shall be an amount such that,
after payment by (or on behalf of) the Executive of any Excise Tax and all
federal, state and other taxes (including any interest or penalties imposed with
respect to such taxes) imposed upon the Gross-Up Payment, the remaining amount
of the Gross-Up Payment is equal to the Excisc Tax imposed upon the Payments but
in no event shall the Gross-Up Payment, plus any amounts withheld for taxes on
account of such payments, exceed one million dollars ($1,000,000). For purposes
of clarity, the amount of the Gross-Up Payment shall be that amount necessary to
pay the Excise Tax in full and all taxes assessed upon the Gross-Up Payment.
(b) An initial determination as to whether a Gross-Up Payment is required
pursuant to this Section 22 and the amount of such Gross-Up Payment shall be
made by
an accounting firm selected by the Company and reasonably acceptable to the
Executive which is then designated as one of the five largest accounting firms
in the United States (the "Accounting Firm"). The Accounting Firm shall provide
its determination (the "Determination"), together with detailed supporting
calculations and documentation to the Company and the Executive as promptly as
practicable after such calculation is requested by the Company or by the
Executive, and if the Accounting Firm determines that no Excise Tax is payable
by the Executive with respect to a Payment or Payments, it shall furnish the
Executive with an opinion reasonably acceptable to the Executive that no Excise
Tax will be imposed with respect to any such Payment or Payments. Within fifteen
(15) days of the delivery of the Determination to the Executive, the Executive
shall have the right to dispute the Determination (the "Dispute"). The Gross-Up
Payment, if any, as determined pursuant to this Section 22 shall be paid by the
Company to the Executive within fifteen (15) days of the receipt of the
Accounting Xxxx'x Determination. The existence of the Dispute shall not in any
way affect the right of the Executive to receive the Gross-Up Payment in
accordance with the Determination. If there is no Dispute, the Detennination
shall be binding, final and conclusive upon the Company and the Executive
subject to the application of subsection (c) below.
(c) As a result of the uncertainty in the application of Sections 4999 and
280G of the Code, it is possible that a Gross-Up Payment (or a portion thereof)
will be paid which should not have been paid (an "Excess Payment") or a Gross-Up
Payment (or a portion thereof) which should have been paid will not have been
paid (an "Underpayment"). An Underpayment shall be deemed to have occurred upon
the earliest to occur of the following events: (1) upon notice (formal or
informal) to the Executive from any governmental taxing authority that the tax
liability of the Executive (whether in respect of the then current taxable year
of the Executive or in respect of any prior taxable year of the Executive) may
be increased by reason of the imposition of the Excise Tax on a Payment or
Payments with respect to which the Company has failed to make a sufficient
Gross-Up Payment, (2) upon a determination by a court, (3) by reason of a
determination by the Company (which shall include the position taken by the
Company, or its consolidated group, on its federal income tax return), or (4)
upon the resolution to the satisfaction of the Executive of the Dispute. If any
Underpayment occurs, the
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Executive shall promptly notify the Company and the Company shall pay to the
Executive within fifteen (15) days of the date the Underpayment is deemed to
have occurred under (1), (2), (3) or (4) above, but in no event less than five
days prior to the date on which the applicable government taxing authority has
requested payment, an additional Gross-Up Payment equal to the amount of the
Underpayment plus any interest and penalties imposed on thc Underpayment,
provided that such additional Gross-Up Payment when added to any prior Gross-Up
Payment does not exceed the $1 million cap in section (a).
An Excess Payment shall be deemed to have occurred upon a "Final
Determination" (as hereinafter defined) that the Excise Tax shall not be imposed
upon a Payment or Payments (or portion of a Payment) with respect to which the
Executive had previously received a Gross-Up Payment. A Final Determination
shall be deemed to have occurred when the Executive has received from the
applicable government taxing authority a refund of taxes or other reduction in
his tax liability by reason of the Excess Payment and upon either (1) the date a
determination is made by, or an agreement is entered into with, the applicable
governmental taxable authority which finally and conclusively binds the
Executive and such taxing authority, or in the event that a claim is brought
before a court of competent jurisdiction, the date upon which a final
determination has been made by such court and either all appeals have been taken
and finally resolved or the time for all appeals has expired, or (2) the statute
of limitations with respect to the Executive's applicable tax return has
expired. Wan Excess Payment is determined to have been made, the amount of the
Excess Payment shall be treated as a loan by the Company to the Executive and
the Executive shall pay to the Company within 15 days following demand (but not
less than 30 days after the determination of such Excess Payment) the amount of
the Excess Payment plus interest at an annual rate equal to the rate provided
for in Section 1274(b)(2)(B) of the Code from the date the Gross-Up Payment (to
which the Excess Payment relates) was paid to the Executive until the date of
repayment to the Company.
2. In all other respects, the Employment Agreement shall continue in full force
and effect.
IN WITNESS WHEREOF, the parties have executed this First Amendment as of
the date first above written.
EXECUTIVE:
/s/ H. Xxxxxxxxxxx Xxxxxxxxx
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H. Xxxxxxxxxxx Xxxxxxxxx
COMPANY:
INTERLAND, INC.
By: /s/ Xxxxxxx Xxxxxxxxxx
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Xxxxxxx Xxxxxxxxxx
President & Chief Executive Officer
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