AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit 10.46
AMENDMENT
TO EMPLOYMENT AGREEMENT
THIS AMENDMENT TO EMPLOYMENT
AGREEMENT (the “Amendment”) is dated the 10th
day of November, 0000
X X X X X X X:
LIVE CURRENT MEDIA INC., a
corporation incorporated under the laws of Nevada, USA
(the
“Company”)
OF
THE FIRST PART
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C. XXXXXXXX XXXXXXX of
Vancouver, British Columbia
(the
“Executive”)
OF
THE SECOND PART
WHEREAS the Company and the
Executive (collectively, “the parties”) entered into an
employment agreement dated as of May 31, 2007 (the “Employment Agreement”)
pursuant to which the Company has been employing the Executive as therein
provided;
AND WHEREAS the Executive has
deferred his compensation under the Employment Agreement since February 1,
2009;
AND WHEREAS the parties now
wish to amend the Employment Agreement as set forth herein;
NOW THEREFORE THIS AGREEMENT WITNESSETH that
in consideration of the premises and the terms and conditions contained herein,
the parties covenant and agree as follows:
1. The
Employment Agreement shall be and is hereby amended effective as of October 1,
2009 (the “Effective
Date”) as set forth below:
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(a)
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Definitions.
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(i) Unless
defined herein, capitalized terms have the meaning given to them in the
Employment Agreement.
(ii) The
following language shall be added to the end of the definition of “Change of Control
of the Company” set forth in Section 1 of the Employment
Agreement:
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“Change
of Control of the Company” as used in this Agreement shall also mean (a) if
during the Employment Period, as it may be extended from time-to-time, the
individuals who constituted the Company’s Board at the beginning of such period
(the “Incumbent Board”) cease to constitute a majority of the Company’s Board
for any reason(s) other than (i) the voluntary resignation of one or more Board
members; (ii) the refusal by one or more Board members to stand for election to
the Board; and/or (iii) the removal of one or more Board members for good cause;
provided, however, (1) that if the nomination
or election of any new director of the Company was approved by a vote of at
least a majority of the Incumbent Board, such new director shall be deemed a
member of the Incumbent Board; and (2) that no individual shall be considered a
member of the Incumbent Board if such individual initially assumed office (A) as
a result of either an actual or threatened director election contest wherein a
person or group of persons opposed a solicitation made by the Company with
respect to the election or removal of directors at any annual or special meeting
of the Company’s shareholders, or (B) as a result of a solicitation of proxies
or consents by or on behalf of any person other than the Company or its
designated representatives (a “Proxy Contest”), or (C) as a
result of any agreement intended to avoid or settle any director election
contest or Proxy Contest; (b) any cancellation or nonrenewal of the Company’s
directors and officers insurance coverage without the approval of the Executive
or the majority of the Incumbent Board; or (b) as a result of a successful
tender offer.
(b) Base
Salary. Section 3.1 of the Employment Agreement shall be
deleted in its entirety and replaced with the following:
Base
Salary. During the period from June 1, 2007 through January
31, 2009, the Company shall pay the Executive a gross base salary in the amount
of $300,000. From and after February 1, 2009, and continuing during
the period of Executive’s employment hereunder, the Company shall pay the
Executive a gross base salary in the amount of $120,000.00 (the “Salary”) in respect of each
year thereafter, payable in equal instalments on the closest Business Day to the
middle and the end of each calendar month during such year. The
payment of $80,000 of the Salary that was deferred during the period beginning
on February 1, 2009 and ending on September 30, 2009 shall be converted to
equity and paid as restricted shares of the Company’s common
stock. The stock price for such conversion shall be the closing price
of the common stock on December 1, 2009. Such payment shall have
deducted from it any amounts as are required by law to be withheld and deducted
by the Company, which amounts shall be remitted by the Company to the requisite
government authorities or agencies.
(b) Bonus
Remuneration. Section 3.3 of the Employment Agreement shall be
deleted in its entirety and replaced with the following:
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Bonus
Remuneration. The Executive may, in respect of each year of
his employment hereunder, be entitled to an annual bonus in the form of shares
of the Company’s common stock or cash or some combination
thereof. The entitlement to, amount and form of bonus remuneration
shall be determined and approved by the Board of Directors in its sole
discretion. Any bonus remuneration shall be paid within 30 days
following the date when the audited financial statements for such year have been
approved by the Board.
(c) Termination Without Just Cause and
Without Notice. Clause (i) of subsection 6.3(a) of the
Employment Agreement shall be deleted in its entirety and replaced with the
following:
(i) $300,000;
and
2. General
Provisions.
(a) Except
as specifically amended herein, all terms and conditions of the Employment
Agreement shall remain in full force and effect and are hereby affirmed by the
parties.
(b) Headings. The headings used in
this Amendment have been inserted for convenience of reference only and shall
not affect the construction or interpretation hereof.
(c) Invalidity of Provisions. Each
of the provisions contained in this Amendment is distinct and severable and a
declaration of invalidity or unenforceability of any such provision by a court
of competent jurisdiction shall not affect the validity or enforceability of any
other provision hereof.
(d) Entire Agreement. This
Amendment supercedes all prior discussions, representations, warranties and
agreements, both written and oral, among the Parties with respect to the subject
matter hereof, and contains the sole and entire agreement among the Parties with
respect to the subject matter hereof. No prior drafts of this Amendment and no
words or phrases from any such prior drafts shall be admissible into evidence in
any action, suit or other proceeding involving this Amendment.
(e) Waiver. Any term of
this Amendment may be waived at any time by the Party that is entitled to the
benefit thereof, but no such waiver shall be effective unless set forth in a
written instrument duly executed by or on behalf of the Party waiving such term
or condition. No waiver by any Party of any term or condition of this Amendment,
in any one or more instances, shall be deemed to be or construed as a waiver of
the same or any other term or condition of this Amendment on any future
occasion. All remedies, either under this Amendment or by any laws or otherwise
afforded, will be cumulative and not alternative.
(f) Amendment. This Amendment may
be amended, supplemented or modified only by a written instrument duly executed
by or on behalf of each Party hereto.
(g) Binding Effect. This Amendment
is binding upon, inures to the benefit of and is enforceable by the Parties and
their respective successors and assigns.
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(h) Currency. All
amounts in this Amendment are stated and shall be paid in Canadian
currency.
(i) Governing Law. This Agreement
shall be governed by and interpreted in accordance with the laws of British
Columbia.
(j) Counterparts. This Agreement
may be executed via facsimile transmission and in counterparts, each of which
will be deemed an original, but all of which together will constitute one and
the same instrument.
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3.
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Acknowledgment by
Executive. Executive acknowledges that
he:
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(a)
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has
had sufficient time to review and consider this Amendment
thoroughly;
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(b) has
read and understands the terms of this Amendment and his obligations hereunder;
and
(c) has
been given an opportunity to obtain independent legal advice, or such other
advice as he may desire concerning the interpretation and effect of this
Amendment.
IN WITNESS WHEREOF the parties
have executed this Amendment as of the day and year first above
written.
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By: /s/
C. Xxxxxxxx Xxxxxxx
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C.
Xxxxxxxx Xxxxxxx
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Chief
Executive Officer
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Witness
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EXECUTIVE
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/s/ Xxxxxx
Xxxxx
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/s/ C. Xxxxxxxx
Xxxxxxx
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C.
XXXXXXXX XXXXXXX
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