EXHIBIT 10.6
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
This First Amendment to Employment Agreement is made and entered into on
this __ day of February, 1998, between URSUS TELECOM CORPORATION (the "Company")
and Xxxxxxxx Xxxxxxxx ("Xxxxxxxx").
PRELIMINARY STATEMENT
The parties have previously entered into an Employment Agreement dated as
of January 1, 1998 (the "Agreement") and have agreed to amend certain provisions
of the Agreement as set forth below.
NOW, THEREFORE, in consideration of the agreements contained herein, and other
good and valuable consideration, the receipt and adequacy of which are hereby
conclusively acknowledged, the parties, intending to be legally bound, agree as
follows:
1. The provisions of this First Amendment shall govern and control over any
conflicting or inconsistent provisions in the Agreement, but except as modified
hereby, all provisions of the Agreement remain unmodified and in full force and
effect and are hereby reaffirmed by each of the parties hereto. Unless
otherwise defined herein, all capitalized terms shall have the same meanings as
provided therefor in the Agreement.
2. Sections 1 and 2(a) of the Agreement are modified to reflect that Xxxxxxxx
shall serve as a member of the Company's Board of Directors and as the Company's
Chief Accounting Officer, as well as its Chief Financial Officer.
3. Section 3 of the Agreement is amended as follows:
(a) To amend the second sentence in the third paragraph of Section 3 by
deleting the same in its entirety, and substituting therefor:
"For each fiscal year during the term of this Agreement in which
EBITDAB equals or exceeds $4 million, the Annual Bonus payable to
Xxxxxxxx shall equal twenty percent (20%) of Base Salary, and shall be
increased by an additional five percent (5%) of Base Salary for each
$1 million of EBITDAB in excess of the first $4 million. The Annual
Bonus shall be computed on a pro rata dollar-for-dollar basis with
EBITDAB in excess of $4 million (I.E., an increase in the Annual Bonus
of 0.000005% of Base Salary for each $1 increase in EBITDAB). If any
Annual Bonus, as so determined, is an amount that includes a fraction
of a cent, it shall be rounded up to the nearest whole cent."
(b) To provide that if the Term of the Agreement shall terminate at any
time prior to the Company's fiscal year end due to expiration of the Term
without renewal, then the Annual Bonus shall be payable on the same terms
and conditions as would have applied if, and shall be calculated in the
same manner as if, Xxxxxxxx had remained employed by the Company under the
Agreement through the end of such fiscal year. If the Agreement shall
terminate at any time prior to the Company's fiscal year end by reason of
termination by the Company without "cause" or termination by Xxxxxxxx for
"good reason", then the provisions of section 10 of the Agreement, amended
as provided in 4 and 5 below, shall apply with respect to the payment of
the Annual Bonus for such fiscal year.
(c) To provide that the aggregate amount of Annual Bonus and all other
bonuses that Xxxxxxxx may receive in respect of any single fiscal year
shall not exceed 200% of Xxxxxxxx'x Base Salary as in effect at the end of
such fiscal year.
(d) Notwithstanding any conflicting provisions hereof, Xxxxxxxx shall not
be required to refund any advance payments of Annual Bonus as a result of
any interim reconciliation based on unaudited EBITDAB; but only based upon
the EBITDAB reflected in the Company's annual audited financial statements.
3. The last sentence of Section 8 of the Agreement is deleted and amended in
its entirety to read as follows: "Xxxxxxxx hereby disclaims any right to
receive a pro rata portion of any bonus that has not yet been paid to him with
respect to the fiscal year in which such termination occurs."
4. Section 10 is amended to provide that if the last day of the Term of the
Agreement, or if the last day of the twelve month period following termination
of the Term (whichever is applicable), is prior to the end of a fiscal year of
the Company, then the Annual Bonus payable for such year shall be calculated and
paid with respect to the full fiscal year.
5. For purposes of Sections 8 and 10 of the Agreement, any portion of the
Annual Bonus that has not yet been paid shall not be paid in the event of
termination of the Term for "cause", but shall be paid in the event of
termination of the Term by the Company without "cause" or by Xxxxxxxx for "good
reason."
IN WITNESS WHEREOF, this Agreement has been executed and delivered in the
manner prescribed by law on the date first written above.
URSUS TELECOM CORPORATION
By: _________________________ ______________________________
Authorized Signatory Xxxxxxxx Xxxxxxxx
