AMENDMENT TO EMPLOYMENT AGREEMENT
THIS AMENDMENT to the Executive Employment Agreement dated September
27, 2001 (the "Employment Agreement") is made as of June 20, 2002 by and between
Xxxxxxxx X. Xxxxxxx, an individual residing at 0000 Xxxxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxx 00000 (the "Executive"), and Comdial Corporation, a Delaware corporation
having offices at 000 Xxxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxx 00000 (the "Company").
Capitalized terms used in this Amendment shall have the same meanings set forth
in the Employment Agreement.
WITNESSETH:
WHEREAS, the Company has entered into a term sheet dated June 10, 2002
with Comvest Venture Partners, L.P. ("Comvest") whereby Comvest has agreed to
provide a secured bridge loan to the Company in the aggregate principal amount
of not less than Two Million Dollars ($2,000,000.00) (the "Bridge Loan").
WHEREAS, it is a condition to the Bridge Loan that the Company and the
Executive amend the Employment Agreement to incorporate modifications to certain
of the terms thereof.
NOW THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the parties hereby agree as follows:
1. Compensation.
A. The first sentence of Section 4.1 of the Employment Agreement is
hereby deleted in its entirety and replaced with the following:
"(a) During the Term, the Company shall pay the Executive a "Base
Salary" of $225,000 payable in installments in accordance with the
Company's regular payroll practices and subject to all withholdings
required by law."
B. Section 4.2 of the Employment Agreement is hereby amended by adding
the following after the last sentence thereof:
"Executive shall be eligible to participate in a Performance
Bonus Plan to be established by the Compensation Committee of the BOD
following the initial closing of the Bridge Loan (the "Closing").
Subject to the terms of such plan, the bonus payable thereunder shall
equal 100% of the Base Salary."
C. The following new subsection 4.3.3 shall be added to Section 4.3 of
the Employment Agreement:
"4.3.3. Additional Grants. Two business days following the
Closing, the Executive shall be granted (i) an option under the Plan
to purchase 2% of the shares of the Company's common stock on a fully
diluted basis (approximately 1,000,000 shares) at an exercise price
equal to the closing price on the date of grant, which option shall
vest in three equal annual installments commencing one year from the
date of grant, and (ii) an option under the Plan to purchase up to
500,000 shares of the Company's stock at an exercise price equal to
the closing price on the date of grant, which option shall vest in
full on the date of grant."
D. The following new Section 4.9 shall be added as the end of Section 4
Compensation and Benefits:
"4.9 Warrants. Executive shall in lieu of a bonus previously
awarded by the Compensation Committee of the BOD, receive warrants to
purchase up to 825,000 shares of Common Stock of the Company at an
exercise price equal to $0.01."
2. Effectiveness; Termination. This Amendment shall be deemed effective as of
the date hereof, except for Section 1A, which shall be effective August 1,
2002. In the event the private placement contemplated by the term sheet
dated June 10, 2002 between the Company and Commonwealth Associates, L.P.
is not completed on or prior to September 27, 2002, this Amendment shall be
null and void and of no further force and effect and the options granted to
Executive pursuant to Section 1C hereof shall be automatically cancelled.
3. Miscellaneous.
A. Agreement Amended. Subject to the provisions of this Section 3, this
Amendment shall be deemed to be an amendment to the Employment Agreement. All
references to the Employment Agreement in any other document, instrument
agreement or writing hereafter shall be deemed to refer to the Employment
Agreement as amended hereby.
B. Successors and Assigns. This Amendment shall be binding upon and inure
to the benefit of the Executive and the Company and their respective successors
and assigns.
C. Governing Law. This Amendment and the rights and obligation of the
parties hereunder shall be construed in accordance with and governed by the law
of the State of Florida, without regard to conflict of laws principles.
IN WITNESS WHEREOF, the parties hereby have executed this
Agreement by proper persons thereunto duly authorized.
COMDIAL CORPORATION
By: /s/ Xxxx X. Xxxxx
-----------------------------------------
Xxxx X. Xxxxx, Chief Financial Officer
EXECUTIVE
By: /s/Xxxxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxxxx X. Xxxxxxx
2
