Exhibit 10.1
AMENDMENT TO EMPLOYMENT AGREEMENT
THIS AMENDMENT TO EMPLOYMENT AGREEMENT (this "Amendment") is entered
into August 26, 2004, between Xxxxxx X. Xxxxx (the "Executive") and Xybernaut
Corporation, a Delaware corporation (the "Company").
WHEREAS, the Executive and the Company entered into an Employment
Agreement dated November 1, 2002, attached as Exhibit A hereto (the "Employment
Agreement"); and
WHEREAS, the Executive and the Company desire to amend the Employment
Agreement as set forth herein.
NOW, THEREFORE, in consideration of the promises and mutual covenants
and agreements contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the Executive and
the Company agree to amend the Employment Agreement as follows:
1. Sections 1(j) and renumbered 8(d) of the Employment Agreement are
amended by changing "twenty (20) business days" to "five (5) business days."
2. Section 5(c) of the Employment Agreement is amended by adding the
following sentence: "Any and all unvested options shall immediately vest upon
the termination of the Executive's employment."
3. Section 8(c) of the Employment Agreement is deleted in its entirety
and the remaining Sections are renumbered accordingly.
4. Renumbered Section 8(e) of the Employment Agreement is amended by
deleting it in its entirety and replacing it with the following language:
The Executive and the Company agree that, if none of the
foregoing termination events take place, then the Executive's
employment will terminate upon the date that the earliest of the
following events occurs: (a) December 31, 2004; (b) the Company
hires a new Chief Financial Officer; or (c) the Executive secures
other employment. In the event that the Executive secures other
employment, he will provide reasonable notice to the Company, the
termination will become effective at the end of such notice
period and he will use best efforts to provide for continued
employment to allow an accurate and timely filing of the Form
10-Q for the third quarter 2004. In the event the Executive's
termination occurs prior to the filing of such Form 10-Q, the
Executive and the Company each agree to use best efforts to reach
a mutually agreeable flexible work arrangement for the Executive
to assist in such filing. In the event of the Executive's
termination of employment pursuant to this renumbered Section
8(e), the Company shall: (i) pay the Executive the equivalent of
six months of the Executive's then-current Salary; (ii) pay any
amounts which have not been paid pursuant to Section 5(d) hereof,
if applicable; (iii) pay any accrued and unpaid vacation as
provided in Section 6(b) hereof; (iv) reimburse the Executive for
any unpaid business expenses which are properly payable pursuant
to Section 7 hereof; and (v) pay the Executive an amount equal to
the Executive's COBRA premiums for a period of six months or such
period of time before the Executive obtains other employment with
comparable health and other benefits. These amounts shall be
payable no later than ten business days following the effective
date of termination, except that payment of any reimbursable
business expenses shall be payable no later than ten business
days following receipt of applicable documentation and payments
pursuant to items (i) and (v) above shall be paid in equal
monthly installments in the middle of such monthly periods. Upon
the termination of the Executive's employment pursuant to this
renumbered Section 8(e), the Executive and the Company agree to
execute a mutual general release.
THE UNDERSIGNED each hereby execute this Amendment as of the date first
written above.
XXXXXX X. XXXXX
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XYBERNAUT CORPORATION
By:
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Name:
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Title:
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