Amendment of
EMPLOYMENT AGREEMENT
THIS AMENDMENT, made and entered into April 13, 2001 (the "Effective
Date"), by and between Xxxxxx X. Xxxxx, Xx. (the "Executive") and Comdisco, Inc.
(the "Company");
WITNESSETH THAT:
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WHEREAS, the Executive and the Company have previously entered into an
employment agreement dated February 27, 2001 (the "Employment Agreement"), and
the parties to the Employment Agreement wish to amend its terms;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth below, it is hereby covenanted and agreed by the Executive and the Company
as follows, effective as of the Effective Date:
1. The following is hereby substituted for the second sentence of
paragraph 2(b) of the EmploymentAgreement:
"Notwithstanding the foregoing provisions of this paragraph (b), for
the performance period beginning on the Employment Commencement Date
and ending September 30, 2001, the Executive shall not be entitled to a
bonus."
2. The following is hereby substituted for paragraph 2(c)(ii) of the
Employment Agreement:
"As of April 13, 2001, the Executive shall be granted an option
covering 1,000,000 shares of Stock. The terms of such option shall be
reflected in the Notice of Grant of Stock Options and Award Agreement
set forth as Supplement 1C to this Agreement, which is attached to and
forms a part of this Agreement. The exercise price for the option
granted under this paragraph (ii) shall be $1.41 per share of Stock.
For the avoidance of doubt, it is recited here that the option granted
pursuant to this paragraph (ii) is in lieu of the options that would
otherwise have been granted pursuant to this paragraph (ii) as in
effect prior to its amendment on April 13, 2001."
3. The following new paragraph 2(p) is hereby added to the Employment
Agreement, to follow immediately after paragraph 2(o) thereof:
"(p) As soon as practicable after April 13, 2001, the Executive shall
receive from the Company a one-time lump sum cash payment of
$2,000,000. However, if the Executive's employment is terminated in
accordance with paragraph 3(c) (relating to termination for Cause) or
3(e) (relating to resignation by the Executive), and his Date of
Termination occurs before the earlier of February 27, 2004 or the
occurrence of a Strategic Transaction (as defined below) then, as of
the Date of Termination, the Executive shall be required to repay to
the Company, such $2,000,000 amount without interest, which repayment
shall be due as soon as practicable after such Date of Termination. For
the avoidance of doubt, it is recited here that the payment made in
accordance with this paragraph (p) shall not be taken into account for
purposes of determining the Executive's life insurance or any other
compensation or benefits. For purposes of this Agreement, a "Strategic
Transaction" shall occur on the date of the events described in any of
clause (i), (ii), or (iii) next following: (i) the date of the
consummation of a merger, consolidation or other similar transaction
involving the Company and any other entity, other than (1) a merger,
consolidation or other similar transaction 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 or, if the
surviving entity has a parent, the parent), in combination with the
ownership of any trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any Affiliate or Subsidiary,
more than 50% of the combined voting power of the voting securities of
the Company or such surviving entity or parent outstanding immediately
after such transaction, or (2) a merger, consolidation or other similar
transaction effected to implement a recapitalization of the Company in
which no person (determined pursuant to clause (i) of Supplement 2) is
or becomes the beneficial owner, directly or indirectly, of securities
of the Company (not including in the securities beneficially owned by
the Company, its Subsidiaries or its Affiliates, or any trustee or
other fiduciary holding securities under an employee benefit plan of
the Company or any Affiliate or Subsidiary) representing more than 50%
of either the then outstanding shares of Stock or the combined voting
power of the Company's then outstanding voting securities; (ii) the
date of the consummation of a plan of complete liquidation of the
Company, or the date of the sale or disposition by the Company of all
or 50% or more of the Company's assets; or (iii) the date that is
thirty days after the filing of a voluntary petition for relief under
the Bankruptcy Code by the Company or the date that is thirty days
after the entry of a judicial order for relief in connection with an
involuntary petition for relief under the Bankruptcy Code filed against
the Company. For purposes of this Agreement, the term "Affiliate" shall
have the meaning set forth in Rule 12b-2 promulgated under the
Securities Exchange Act of 1934."
IN WITNESS THEREOF, the Executive has hereunto set his hand, and the
Company has caused these presents to be executed in its name and on its behalf,
all as of the Effective Date.
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Xxxxxx X. Xxxxx, Xx.
Comdisco, Inc.
By: ____________________________________
Its: _________________________
Supplement 1C
Grant Outside Plan
Notice of Grant of Stock Options and Award Agreement
This Supplement 1C is attached to and forms a part of the amendment of
employment agreement (the "Agreement") between Xxxxxx X. Xxxxx, Xx. (the
"Executive") and Comdisco, Inc. (the "Company") made and entered into April 13,
2001. The purpose of this Supplement 1C is to set forth the Notice of Grant of
Stock Options and Award Agreement applicable to a certain stock option award to
be granted pursuant to paragraph 2(c)(ii) of the Agreement.
NOTICE OF GRANT OF STOCK OPTIONS AND AWARD AGREEMENT
Option Number:
ID:
Effective 4/13/01, and pursuant to the terms of paragraph 2(c)(ii) of your
employment agreement with Comdisco, Inc. (the "Company") dated April 13, 2001
(the "Agreement"), you have been granted a Non-Qualified Stock Option to buy
1,000,000 shares of Company stock at $1.41 per share.
This grant of stock options is not made under the Comdisco, Inc. 1998 Long-Term
Stock Ownership Incentive Plan (as Amended and Restated Effective September 29,
2000) (the "Plan"), but is subject to the same terms and conditions as though it
had been made under the Plan (provided, however, that this grant shall not be
counted against the total set forth in Section 3(a) of the Plan, and shall not
be subject to the provisions of Section 3(b) of the Plan), and the grant shall
be subject to the following additional terms and conditions.
The total option price of the shares granted is $1,410,000.
The option will become vested and remain exercisable in accordance with the
terms of the Agreement.
Tax Treatment: This option is a "non-qualified option." You are not subject to
Federal income taxation at the time of grant. Upon exercise of a non-qualified
option, the difference between the option exercise price and the fair market
value of the common stock on the date of exercise will be considered ordinary
income.
By your signature and Comdisco's signature below, you and Comdisco agree that
these options are granted under and governed by the terms and conditions of the
Plan and the Award Agreement, all of which are attached and made a part of this
document.
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Comdisco, Inc. Date
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Xxxxxx X. Xxxxx, Xx. Date
