EXHIBIT 10.9b
AMENDMENT TO EMPLOYMENT AGREEMENT
This "Amendment to Employment Agreement" (this "Amendment") is made on the
22nd day of January 1999 by and between IFS International, Inc., a Delaware
corporation (the "Company"), IFS International, Inc., a New York corporation and
a wholly owned subsidiary of the Company, and any other subsidiary of the
Company and Xxxxx Xxxxxxxx (the "Executive"), based on the following:
A. On May 12, 1998, the Company and the Executive executed that certain
"Employment Agreement" (the "Agreement") whereby the Company retained the
services of the Executive as the Chairman of its Board of Directors and as an
Officer of its wholly owned subsidiary, IFS International, Inc. In October 1998,
the Executive resigned as Chairman of the Board of Directors and accepted a
position as Executive Vice President of the Company reporting to the new
Chairman of the Board of Directors. The Executive retained his position as a
member of the Board of Directors.
B. The Company and the Executive wish to modify the Agreement pursuant to
the terms of this Amendment.
NOW, THEREFORE, the parties to this Amendment agree as follows:
1. Modification to Section 2(a). The first sentence of Section 2(a) of the
Agreement shall be modified to state, "The Company hereby engages the Executive
as a member of the Board of Directors and the Companies hereby engage the
Executive as an Officer.
2. Modification to Section 3(a). Section 3(a) of the Agreement shall be
deleted in its entirety and the following shall appear in its place:
Initial Term. Unless this Agreement is previously terminated by either
party as provided in sections 11 or 12 below, the Companies hereby employ the
Executive pursuant to the terms of this Agreement, and the Executive hereby
accepts such employment, for the period beginning on January 1, 1997 and ending
on December 31, 2001 (the "Initial Term").
3. Modification to Section 4(a). Section 4(a) of the Agreement shall be
deleted in its entirety and the following shall appear in its place:
Annual Base Salary. During the Term, the Companies shall pay to the
Executive an annual salary in the amount of One Hundred Thirty Thousand dollars
($130,000) (the "Annual Salary"). The Annual Salary shall be subject to any Tax
Withholdings and/or Employee Deductions that are applicable. The Annual Salary
shall be paid to the Executive in equal installments in accordance with the
periodic payroll practices of the Companies for executive employees.
4. Modification to Section 4(b). Section 4(b) of the Agreement shall be
deleted in its entirety and the following shall appear in its place:
Performance Bonus. The Chairman of the Board of Directors shall from
time-to-time, but not less than one (1) time per year, evaluate the performance
of the Executive and award to the Executive a performance bonus (the
"Performance Bonus") in such amount as the Chairman of the Board of Directors
may determine, in his sole discretion, to be reasonable, after taking into
consideration other compensation paid or payable to the Executive under this
Agreement, as well as the financial and non-financial progress of the business
of the Companies and the contributions of the Executive toward that progress. In
no event shall the Performance Bonus be more than forty percent (40%) of the
Executive's annual salary. Payment of the Performance Bonus shall be subject to
any applicable Tax Withholdings and/or Employee Deductions.
5. Modification to Section 4(e). A second paragraph shall be added to
Section 4(e) of the Agreement which shall state:
In conjunction with the execution of this Agreement, the Executive shall
receive one hundred fifty thousand (150,000) options to purchase the Company's
common stock (the "1998 Options"), the terms and conditions of which shall be
governed by the 1998 IFS International, Inc. Stock Plan. The Executive agrees to
be bound by the terms of the 1998 IFS International, Inc. Stock Plan as adopted.
The 1998 Options shall vest over a period of five (5) years, thirty thousand
(30,000) shares on each anniversary of the execution of this Agreement. The
purchase price per share for the 1998 Options shall be the fair market value of
the Company's common stock as of the date of the grant. Subject to the
requirements of any state or federal securities laws of the United States, the
common stock to be acquired by exercise of the options granted hereunder shall
be freely tradeable. Subject to the terms and conditions of the 1998 IFS
International, Inc. Stock Plan, the Executive shall be entitled to exercise the
options with cash, or will be entitled to a "cashless" exercise using other
common stock of the Company, or will be entitled to exercise the options using
any other consideration acceptable to the Company.
6. Deletion to Section 4(f). Section 4(f) shall be deleted in its entirety
and not replaced.
7. Deletion to Section 12(g). Section 12(g) shall be deleted in its
entirety and not replaced.
8. Modification to Section 12(h). The last sentence of Section 12(h) shall
be modified to state the following: "Notwithstanding the foregoing, amounts
which are vested in any Employee Benefit Plans, including stock options, shall
be payable in accordance with such plan."
9. Modification to Section 13. Section 13 shall be deleted in its entirety
and the following shall appear in its place:
In the event the Executive's employment hereunder is terminated before the
expiration of a Term, and such termination is attributable to (i) an event
defined as a Change in Control; (ii) an event defined as a Termination by
Executive for Good Reason; and/or (iii) termination by the Board of Directors of
IFS International, Inc., a Delaware corporation, which does not constitute a
Termination for Cause; then all rights and obligations of the Companies and the
Executive under section 2 [Employment Obligations], section 4 [Compensation],
section 5 [Allowances], section 6 [Business Expenses], and section 8 [Personal
Time-Off] shall terminate as of the effective date of the termination date;
provided, however: that the Executive shall receive, in a lump sum and without
discount to present value, an amount equal to: the sum of the Executive's Annual
Salary (calculated at the then current rate) plus Performance Bonus (calculated
as forty percent (40%) of the Executive's Annual Salary) multiplied by the
larger of either (x) the number of years then remaining in the term of this
Agreement (calculated to the nearest day as of the termination date), or (y) two
years. In addition:
(a) All stock options which have been or are scheduled to be granted during
the Term of this Agreement pursuant to section 4(e) shall become fully vested at
the xxxxx xxxxx and the Companies shall pay to the Executive a sum which shall
permit the Executive to exercise, in his sole and absolute discretion, all or
some of the options;
(b) At the election of the Executive, the Companies shall (i) provide to
the Executive and his spouse and dependents, for a period of twelve (12) months,
medical, dental, and vision insurance and, to the Executive, disability
insurance, which benefits shall be comparable to the benefits received by the
Executive at the time of termination of his employment; or (ii) provide to the
Executive additional compensation, payable on a monthly basis, which would
approximate the cost to the Executive to obtain such comparable benefits;
(c) The Companies shall reimburse the Executive for the Executive's
business expenses incurred through the effective date of the termination, within
three (3) business days of the Executive's submission of the Executive's expense
report to the Companies.
The Companies shall gross-up the payment comprised of the Executive's
Annual Salary plus Performance Bonus to cover the payment of any and all taxes,
of any kind or nature, that are incurred by the Executive as a result of his
receipt of the foregoing compensation.
The Executive shall not be required to mitigate the amount of any payment
pursuant to this section 13 by seeking other employment or otherwise, and no
such payment shall be offset or reduced by the amount of any compensation or
benefits provided to the Executive in any subsequent employment. The provisions
of this section 13 shall not be deemed to prejudice the rights of the Companies
or the Executive to any remedy or damages to which such party may be entitled by
reason of a breach of this Agreement by the other party, whether at law or
equity.
10. Deletion of Section 14. Section 14 shall be deleted in its entirety and
not replaced.
11. All Other Terms and Provisions of the Agreement To Remain. The parties
agree that all other terms and provisions of the Agreement shall remain the
same.
12. Electronically Transmitted Documents. This Amendment shall have no
force and effect until it is fully executed by all parties hereto. If a copy or
counterpart of this Amendment is originally executed and such copy or
counterpart is thereafter transmitted electronically by facsimile or similar
device, such facsimile document shall for all purposes be treated as if manually
signed by the party whose facsimile signature appears.
WHEREFORE, the parties hereto have executed this Agreement in the City of
Albany, State of New York, as of the date first set forth above.
IFS INTERNATIONAL, INC.
A Delaware Corporation
By:_____________________________________
President and Chief Executive Officer
By:_____________________________________
Chairman of the Compensation Committee
of the Board of Directors
By:_____________________________________
Chairman of the Board of Directors
By:_____________________________________
Secretary
IFS INTERNATIONAL, INC.
A New York Corporation
By:_____________________________________
President and Chief Executive Officer
By:_____________________________________
Secretary
EXECUTIVE:
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Xxxxx Xxxxxxxx
