Amendment No. 1 to Employment Agreement
Exhibit
10.2
Amendment
No. 1 to Employment Agreement
This
Amendment No. 1 dated as of October 26, 2007, by and between Ionatron, Inc.
(the
“Company”) and Xxxx X. Xxxxxxxx (the “Executive”) amends the Employment
Agreement entered into on August 18, 2006 by and between the Company and the
Executive (the “Agreement”). Capitalized items used herein and not defined
herein shall have the same meanings as set forth in the Agreement.
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(1)
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The
last sentence of Section 2.3 is deleted in its entirety and replaced
with
the following:
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| “2.3 |
The
Incentive Bonus shall be paid in a single lump sum no later than
the
earlier of (i) 15 calendar days following the date on which the Company
files with the Securities and Exchange Commission (the “SEC”) its Annual
Report on Form 10-K (or Form 10-KSB) which includes audited financial
statements for such Employment Year audited by an independent registered
public accounting firm and (ii) December 31st
of
the following calendar year.”
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(2)
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The
following new Section 2.7 shall be added at the end of Section
2.6.
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| “2.7 |
Automobile
Allowance.
The Executive shall, commencing on the date of the Amendment, be
entitled
to a $1,000 per month automobile allowance, to cover the expenses
of
operating, maintaining and using an automobile, upon the presentation
of
appropriate vouchers and/or receipts to the extent the Company does
not
pay the expenses directly.
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(3)
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The
following shall be added at the end of the last sentence of Section
5.1.1.
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“,
including Good Reason (as defined in Section 5.1.3 hereof)”
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(4)
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The
following shall be added as a new Section 5.1.3 to the
Agreement;
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| “5.1.3. | Good Reason. For purposes of this Agreement, “Good Reason” shall mean any of the following shall have occurred (without the Executive’s prior written consent): |
| (i) | a decrease in the Executive’s Base Salary or a failure by the Company to pay material compensation due and payable to the Executive in connection with his employment; |
| (ii) | a material diminution of the responsibilities or title of the Executive with the Company; |
| (iii) | a material breach by the Company of any material term or provision of this Agreement; or |
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(iv)
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the
removal of the Executive as a director of the Company or the failure
of
the Executive to be re-elected as a director of the Company;
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and,
in
each case, shall not have been cured within thirty (30) days following receipt
of written notice from the Executive setting forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination for Good
Reason.” Any written notice of Good Reason must be provided to the Company by
the Executive within ninety (90) days after the occurrence of the event
providing the basis for termination for Good Reason set forth in the written
notice.
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(5)
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Section
5.4.2 shall be deleted in its entirety and replaced with the
following:
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“5.4.2. Termination
without Cause by the Company or for Good Reason by the Executive.
Subject
to the provisions of subsection 5.4.3 hereof, if, prior to the expiration of
the
Term, the Executive’s employment hereunder is terminated by the Company without
Cause or by the Executive for Good Reason, the Company shall pay to the
Executive all expenses and accrued Benefits arising prior to such termination
which are payable to the Executive pursuant to this Agreement through the Date
of Termination and the Company shall continue to pay the Executive his Base
Salary as then in effect for a period of twelve (12) months from the Date
of Termination (such period being referred to hereinafter as the “Severance
Period”), payable in monthly installments. In addition, during the Severance
Period, the Executive shall be entitled to continue to participate in all
employee benefit plans that the Company provides (and continues to provide)
generally to its senior executives.”
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(6)
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Section
5.4.4 shall be deleted in its entirety and replaced with the
following:
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“5.4.4 Vesting
of Equity Awards Upon Change in Control.
Anything
contained herein to the contrary notwithstanding, upon the occurrence of a
Change in Control (as defined in the Company’s 2007 Stock Incentive Plan),
notwithstanding the vesting and exercisability schedule in any stock option
agreement between the Company and the Executive, all unvested stock options
granted by the Company to the Executive pursuant to this Agreement or otherwise
shall immediately vest and become exercisable and shall remain exercisable
for
the full term of the option and all other unvested equity awards shall vest
immediately.”
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(7)
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All
other terms and provisions of the Agreement remain unchanged and
of full
force and effect
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(8)
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This
Amendment No. 1 may be executed by the parties in one or more
counterparts, each of which shall be deemed to be an original but
all of
which taken together shall constitute one and the same agreement,
and
shall become effective when one or more counterparts has been signed
by
each of the parties hereto and delivered to each of the other parties
hereto. A photocopy or electronic facsimile of this Amendment No.
1 or of
any signature hereon shall be deemed an original for all
purposes.
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IN
WITNESS WHEREOF,
the
parties have executed this Agreement as of the date first written above.
| "COMPANY" | ||
| IONATRON, INC. | ||
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| By: | /s/ Xxxxxxx X. Xxxxxxx | |
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Printed Name: Xxxxxxx X. Xxxxxxx |
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| Title: Chief Financial Officer | ||
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"EXECUTIVE"
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| By: | /s/ Xxxx X. Xxxxxxxx | |
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Xxxx
X. Xxxxxxxx
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