AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment (the "Amendment"), effective as of March 10, 2004 (the
"Effective Date"), to the employment agreement executed on or about May 7, 2002
(the "Employment Agreement") by and between GoAmerica, Inc., a Delaware
corporation (the "Company"), and Xxxxx Xxxxxxxxx (the "Executive").
WITNESSETH:
WHEREAS, the Company and the Executive entered into the Employment
Agreement; and
WHEREAS, the Company and the Executive desire to amend the Employment
Agreement to reflect changes which the parties hereby agree to in connection
with the Company's continued employment of the Executive; and
WHEREAS, the Company and the Employee executed a Mutual Release, dated
December 19, 2003, which release is incorporated herein by reference.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1. Amendments - The Employment Agreement shall be amended as follows:
1.1 Section 1. Term. Nothing in this Amendment shall be construed
to alter the term of the Employment Agreement (the "Term").
1.2 Section 2. Positions and Duties. Section 2 is hereby amended
and restated in its entirety as follows:
The Executive shall hold the office of Chairman until such
time as he: (i) voluntarily resigns such title; or (ii) the
Board of Directors of the Company (the "Board") approves a new
Chairman/Executive Chairman who the Board determines in good
faith has superior qualifications in the Company's area of
business concentration. Nothing in this Agreement shall
prevent the Executive from accepting alternate full-time
employment from another company and no such alternate
employment will limit the benefits provided hereunder unless
expressly stated in this Amendment. The Executive shall remain
a director, at a minimum, through the end of the director's
term (the "Director's Term") which commenced on December 19,
2003. The Company will use reasonable commercial efforts to
obtain nomination and election of the Executive as a director
of the Company, throughout the Director's Term, unless: (i)
the Executive voluntarily resigns; (ii) the Executive
voluntarily chooses not to stand for reelection; or (iii) the
Executive is removed for Cause.
1.3 Section 3. Compensation. The benefits provided in Section 3
shall remain in full force and effect through the end of the
Term, except that Sections 3(a) and 3(e) shall be amended as
follows:
(a) Section 3(a) is hereby amended and restated in its
entirety. For the Term (and, thereafter, if the
Executive remains director), the Executive shall receive
fees and equity grants to the same extent as the fees
and equity grants received by "non-employee" directors
of the Company, to the extent permissible by statute,
charter and bylaws. The Executive shall also receive any
other nominal salary required, if any, to maintain the
Executive on the Company's benefit plans.
(b) Section 3(e) is hereby amended and restated in its
entirety. The Executive will be entitled to the same
health, medical and welfare benefits provided to other
senior executives of the Company (and their "dependents"
as that term may be defined under the applicable benefit
plan(s) of the Company) through the end of the Term, so
long as continuation of such benefits are permitted by
the Company's carriers. If, for any reason, the Company
is not able to provide such benefits directly, the
Company shall continue to pay for the continuation of
all such benefits through a continuation pursuant to
COBRA. In the event that the Company is required, for
any reason, to move the Executive onto COBRA prior to
May 7, 2005, the Company agrees that for each month
between May 7, 2005 and December 7, 2006 during which
the Executive is not eligible for COBRA continuation,
the Executive shall receive a cash payment equal to the
last COBRA payment made (whether by the Executive or the
Company) under the Company's plan, to help offset the
cost to the Executive of obtaining independent
insurance. If, at any time the Executive becomes
eligible for medical benefits from an employer other
than the Company, the Executive's eligibility for
continued medical benefits from the Company shall cease.
1.4 Section 6. Compensation in the Event of Termination. Section
6(a) is hereby amended and restated in its entirety as
follows:
In the event that either: (i) the Executive's employment is
terminated for a reason other than Cause, including for Good
Reason by the Executive; or (ii) the Company does not renew
the Employment Agreement at the conclusion of the Term or any
renewal thereof, the Executive shall be eligible to receive
severance from the Company in accordance with the Company's
severance policy with respect to executive officers of the
Company in effect at the time of termination or non-renewal.
Any severance amount paid pursuant to this Section 6, if any,
shall be calculated based upon the Executive's base salary as
in effect on March 31, 2003.
The payments, rights and entitlements described in Section
6(a) above, if any, shall only be made if the Executive shall
first have executed and delivered to the Company its form of
release with respect to his employment hereunder and the
termination of such employment.
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1.5 Section 8. Restrictive Covenant. Section 8 shall be deleted in
its entirety.
1.6 Stock Options. The Company acknowledges and agrees that any
stock option or other equity grant which was granted to the
Executive prior to the date of this Amendment shall remain in
force and effect and shall continue to vest throughout the
balance of the Term and any renewals thereof and shall
continue to be exercisable pursuant to their terms.
2. Reference to and Effect on the Employment Agreement
2.1 On and after the date hereof, each reference to "this
Agreement," "hereunder," "hereof," "herein," or words of like
import shall mean and be a reference to the Employment
Agreement as amended hereby. No reference to this Amendment
need be made in any instrument or document at any time
referring to the Employment Agreement. A reference to the
Employment Agreement in any such instrument or document shall
be deemed to be a reference to the Employment Agreement as
amended hereby.
2.2 Except as amended and/or superseded by, or inconsistent with,
this Amendment or the Mutual Release, the provisions of the
Employment Agreement shall remain in full force and effect. In
the event of a conflict among this Amendment, the Mutual
Release and/or the Employment Agreement, the express content
of the immediately preceding order of documents shall control
any interpretation.
3. Governing Law
The Employment Agreement and Amendment shall be governed by and
construed in accordance with the laws of the State of New Jersey
without giving effect to principles of conflicts of laws.
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of
the date first written above.
GOAMERICA, INC.
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
Chief Executive Officer
EXECUTIVE
/s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx
