EXHIBIT 10.23
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
This First Amendment to Employment Agreement is entered into as of this
1st day of February, 2000 by and between XxxxxxxXxxxxx.xxx, Inc., a Delaware
corporation (the "Company") and Xxxxxxx Xxxxx, an individual with an address at
00 Xxxxxxxxx Xxxx, Xxxxxx, Xxx Xxxxxxxxx 00000 ("Employee").
INTRODUCTION
1. The Company and Employee entered into that certain Employment
Agreement dated as of May 22, 1999 (the "Employment Agreement"), pursuant to
which the Company employed Employee as its Vice President of Operations.
2. The Company and Employee now desire to amend the Employment Agreement
as hereinafter set forth.
AGREEMENT
In consideration of the premises and mutual promises hereinbelow set
forth, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
I. A new Section 3.8 regarding severance payments is hereby added
to the Employment Agreement as follows:
"3.8 SEVERANCE PAYMENTS.
3.8.1 TERMINATION BY THE COMPANY. In the event the Company
terminates this Agreement pursuant to Section 5 (Termination Without Cause), the
Company shall, prior to the effective date of the termination, pay Employee, in
one lump sum, an amount equal to (a) 1.5 times Employee's Base Salary, at his
then current rate, less applicable taxes, if termination shall occur prior to a
"Change in Control" or an "Approved Change in Control" (both as hereinafter
defined) or subsequent to an Approved Change in Control, or (b) 2.0 times
Employee's annual salary, at his then current rate, less applicable taxes, if
termination shall occur after a Change in Control. The Company shall also pay
Employee's health insurance benefits at described in SECTION 3.2 for a period of
one year in the event of termination pursuant to SECTION 5, and in the event of
a Change in Control, any options granted to Employee shall become fully vested
as of such date of termination in connection with such Change of Control.
3.8.2 DEFINITIONS.
(a) CHANGE IN CONTROL. A "Change in Control" shall be
deemed to have occurred in any of the following events:
(i) the stockholders of the Company approve a merger
or consolidation of the Company with any other corporation, other than (a) a
merger or consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than 80% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation, (b) a merger or consolidation effected to
implement a recapitalization of the Company (or similar transaction) in which no
"person" or group (as such terms are defined in Section 13(d)(3) of the
Securities Exchange Act of 1934) acquires more than 30% of the combined voting
power of the Company's then outstanding securities, or (c) a reorganization
pursuant to which the Company creates a holding company for itself in which the
stockholders of the Company immediately prior to the reorganization (other than
those exercising dissenters' rights) become the stockholders of the holding
company immediately after the reorganization; or
(ii) the stockholders of the Company approve a plan
of complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the Company's assets;
or
(iii) as a result of or in connection with any cash
tender offer, merger, or other business combination, sale of assets or contested
election, or combination of the foregoing, the persons who were directors of the
Company just prior to such event shall cease to constitute a majority of the
Board; or
(iv) when any "person" or "group" (as such terms are
defined in Section 13(d)(3) of the Securities Exchange Act of 1934) becomes a
"beneficial owner" (as such term is defined in Rule 13d-3 under the Securities
Exchange Act of 1934), directly or indirectly, of securities of the Company
representing forty percent (40%) or more of the total number of votes that may
be cast for the election of directors of the Company; or
(v) the closing of a transaction or series of
transactions in which more than 50% of the voting power of the Company is
transferred; or
(vi) a tender offer or exchange offer for the common
stock of the Company, other than one made by the Company or by a person or group
(as such terms are defined in Section 13(d)(3) of the Securities Exchange Act of
1934) that on the date hereof holds more than 5% of the outstanding shares of
the Company entitled to vote for the election of directors, where the offeror
acquires more than 40% of the outstanding shares of common stock of the Company.
(b) APPROVED CHANGE IN CONTROL. An "Approved Change in
Control" of the Company shall mean a Change in Control that is approved by a
majority of the Company's Board of Directors."
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II. Sections 4 and 5 of the Employment Agreement are hereby deleted and
replaced in their entirety by the following new Sections 4 and 5:
4. TERMINATION FOR CAUSE; DISABILITY
4.1 TERMINATION FOR CAUSE. The Company may discharge
Employee and terminate his employment under this Agreement for cause without
further liability to the Company. As used in this Section 4.1, "cause" shall
mean any or all of the following: (i) gross or willful misconduct of Employee
during the course of his employment; (ii) conviction of a felony or any criminal
offense involving dishonesty, breach of trust or moral turpitude during the
Employment Period; or (iii) Employee's breach of any of the material terms of
this Agreement. In the event of a for cause termination, all stock options
granted to the Employee, whether vested or not vested, shall immediately
terminate.
4.2 DISABILITY. If during the Employment Period, Employee
shall become ill, disabled or otherwise incapacitated so as to be unable to
perform his usual duties (a) for a period in excess of one hundred twenty (120)
consecutive days or (b) for more than one hundred eighty (180) days in any
consecutive twelve (12) month period, then the Company shall have the right to
terminate this Agreement without further liability on thirty (30) days' prior
notice to Employee.
5. TERMINATION WITHOUT CAUSE. Upon ninety (90) days prior written
notice, the Company may terminate this Agreement without cause and without
further liability to the Company except as set forth in SECTION 3.8.
III. Except as modified herein, the Employment Agreement is hereby
ratified, confirmed and approved in all respects.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ATTEST: XXXXXXXXXXXXX.XXX, INC.
By: /s/ XXXX X. XXXXX
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Title: CEO
WITNESS: EMPLOYEE:
/s/ XXXXXXX XXXXX
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Xxxxxxx Xxxxx
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