AMENDMENT NO. 2
TO
EMPLOYMENT AGREEMENT
AMENDMENT NO. 2 TO EMPLOYMENT AGREEMENT effective as of the 2nd day of
January, 1998, by and among OMNIREL, LLC, a Delaware limited liability company
with offices at 000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx (the "Company");
XXXX X. XXXXXXXXXX, residing at 000 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx 00000
("Executive"); and ZING TECHNOLOGIES, INC. ("Zing").
RECITALS
Executive has been President and Chief Executive Officer of the Company
since 1985 and possesses valuable experience, skills and know-how with respect
to all aspects of the Company's business. The parties hereto are party to an
Employment Agreement dated as of June 26, 1991 (the "Employment Agreement"), as
amended by Amendment No. 1 to the Employment Agreement effective as of June 27,
1995, and desire to further amend to Employment Agreement as hereinafter set
forth. The Company desires to continue to employ Executive on the terms and
conditions set forth in the Employment Agreement, as amended by Amendment No. 1
to the Employment Agreement and this Amendment No. 2 to the Employment
Agreement, and Executive is willing to continue such employment on such terms
and conditions.
It is therefore hereby agreed by and among the parties as follows:
1. Amendments to Employment Agreement.
(a) Section 2 of the Employment Agreement is hereby amended and
restated to read as follows:
"2. Term of Employment.
Executive's term of employment under this Agreement shall commence
on the date hereof and, subject to the terms hereof, shall continue until
Jun 30, 2000, and shall be automatically extended from year to year
thereafter unless either party shall first provide twelve (12) months
prior written notice of termination of such employment. The later of June
30, 2000, or the date of the expiration of the term of employment as
determined above is referred to as the "Expiration Date.""
(b) The introductory clause of Section 3.1 of the Employment
Agreement which reads "Base Salary. For performing the services to be rendered
by Executive hereunder, the Company shall pay Executive a base salary ("Base
Salary") at the rate of $125,000 per year,"
Page 1 of 4
is hereby amended to read as follows:
"Base Salary. For performing the services to be rendered by Executive
hereunder, the Company shall pay Executive a base salary at the rate
of $175,000 per year, which base salary shall be reviewed yearly by the
special committee of the Zing board responsible for supervision of
management of the Company under the Company's operating agreement in order
to determine to what extent, if any, such base salary should be adjusted.
(The base salary as in effect from time to time is hereinafter referred to
as "Base Salary.")"
(c) The "Base Salary Digit" set forth in Section A.1. of Schedule A
to the Employment Agreement, for purposes of calculating the Executive's
Incentive Bonus, is hereby amended and restated to read as follows:
"Fiscal Year Ended Base Salary Digit
------------------ -----------------
1992 60%
1993 65%
1994 70%
1995 75%
1996 80%
1997 85%
1998 90%
1999 95%
2000 100%"
(d) In the event that during the term of this Agreement the Company
acquires another business entity, then the foregoing bonus provisions shall be
renegotiated with the Executive with a view to reflecting equitably his
increased responsibilities, if any, resulting from such acquisition; provided,
however, that in no event shall any post-acquisition bonus be less than a bonus
computed in accordance with the provisions of this Agreement had no such
acquisition occurred.
(e) Executive's Incentive Bonus shall be prorated for any fiscal
year of the Company during which the Executive dies or is no longer capable of
substantially performing each of the duties customarily performed by him
hereunder for a period of 90 days.
(f) Section 3.5 of the Employment Agreement is hereby deleted in
its entirety.
(g) Section 7.4 of the Employment is hereby amended to read in its
entirety as follows:
"7.4 Resignation for Good Reason: Termination without Cause. If Executive
resigns for Good Reason or is discharged without Cause, he shall be
entitled to receive as if this
Page 2 of 4
Agreement had not been terminated the Base Salary, and continue to receive
the medical insurance then being paid ("Surviving Benefits"), as same is
from time to time changed for all executives participating in such plan,
until such time as he has secured alternate employment or until one year
after the Expiration Date, whichever first occurs, but no other benefits to
which he would otherwise be entitled hereunder during the term hereof."
(h) The first sentence of Section 8.2(a) of the Employment
Agreement is hereby amended to read in its entirety as follows:
"Executive covenants and agrees that he shall not engage in "Competition"
against the Company, Zing, or any of their respective subsidiaries during
the period commencing on the date hereof and ending on (i) if Executive's
term of employment expires as provided in Section 2, one year after the
Expiration Date, (ii) if Executive is terminated or resigns pursuant to
paragraph 7.4 hereof, then the date of such termination or resignation, as
the case may be, or (iii) if Executive is terminated or resigns pursuant to
paragraph 7.3 hereof, then the later to occur of (A) July 1, 2000 and (B)
the two-year anniversary of such termination or resignation. In
consideration of such non-competition agreement, and in the event that
Executive's term of employment expires as provided in clause (i) above,
Executive shall be entitled to continue to receive his Base Salary and
Surviving Benefits for a period of one year after the Expiration Date."
(g) The address of Zeus Components, Inc. in Section 13 of the
Employment Agreement is hereby amended to read as follows:
"Zing Technologies, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
(h) All references in the Employment Agreement to "Zeus Components,
Inc." and "Zeus" are hereby amended to read "Zing Technologies, Inc." and
"Zing", respectively.
2. Reaffirmation of Employment Agreement.
Except as provided herein, this Amendment No. 2 shall not
constitute a waiver or modification of any term, provision or condition of the
Employment Agreement as amended by Amendment No. 1 to the Employment Agreement,
and all terms, conditions, agreements, provisions, representations and
warranties contained in the Employment Agreement as amended by Amendment No. 1
to the Employment Agreement shall remain in full force and effect.
3. Governing Law.
The Amendment No. 2 shall be construed, interpreted and governed in
accordance with the laws of the State of New York, without reference to rules
relating to conflicts of law.
Page 3 of 4
IN WITNESS WHEREOF, the parties have executed this Amendment No. 2,
effective as of January 2, 1998.
OMNIREL LLC
By:
------------------------------
Name: X. Xxxxxxxxxx
Title: President
/s/ Xxxx X. Xxxxxxxxxx
---------------------------------
XXXX X. XXXXXXXXXX
ZING TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Chairman
Page 4 of 4
