AMENDMENT NO. 1 TO TO THE EMPLOYMENT AGREEMENT
Exhibit 10.21
This Amendment No.1 (“Amendment”) to the Employment Agreement by and between Quepasa
Corporation, a Nevada corporation (the “Company”), and Xxxxxxx X. Matte is entered into and
effective as of March 27, 2008. Capitalized terms used but not otherwise defined herein have the
meanings assigned thereto in the Employment Agreement.
RECITALS
WHEREAS, the parties to this Amendment are parties to that certain Employment Agreement, dated
as of October 25, 2007 (the “Employment Agreement”); and
WHEREAS, the parties hereto desire to amend the Employment Agreement to bring it into
compliance with Section 409A of the Internal Revenue Code of 1986, as amended (“Code”) and
make certain other changes.
NOW, THEREFORE, in consideration of the foregoing, the mutual promises contained herein, and
other good and valuable consideration, the sufficiency of which is hereby acknowledged, intending
to be legally bound hereby, the parties agree as follows:
AGREEMENT
1. Section 7(b)(i) of the Employment Agreement shall be amended by adding the following
language at the end thereof:
Notwithstanding the foregoing, if Employee is a “Specified Employee”
of the Company for purposes of Code Section 409A at the time of a
payment event set forth in Sections 7(b) and the Company determines in
good faith that no applicable exception to the requirements of Code
Section 409A exists for the payment, then no payments pursuant to
Section 7(b)(i) shall be made to Employee by the Company until the
amount of time has passed that is necessary to avoid incurring excise
taxes under Code Section 409A. Should this provision result in a
delay of payments to Employee, on the first day any such payments may
be made without incurring a penalty pursuant to Code Section 409A (the
“409A Payment Date”), the Company shall begin to make such payments as
described in this 7(b)(i), provided that any amounts that would have
been payable earlier but for the application of this paragraph
7(b(i)), shall be paid in lump-sum on the 409A Payment Date along with
accrued interest at the prime rate of interest set forth in the
Western Edition of the Wall Street Journal from the date that payments
to Employee should have been made under this Agreement. The balance
of such severance payments shall be payable in accordance with regular
payroll timing and the COBRA premiums shall be reimbursed monthly.
For purposes of this provision, the term Specified Employee shall have
the meaning set forth in Code Section 409A(2)(B)(i) or any successor
provision and the treasury regulations and rulings issued hereunder.
2. Section 8(a) of the Employment Agreement shall be amended and restated in its entirety as
follows:
a. SALARY, PERFORMANCE AWARD, AND BONUS PAYMENTS. Following the
occurrence of a Change of Control (other than as a consequence of his
death or Disability (as defined below), Employee shall be entitled to
receive from the Company, the following:
(i) Base Salary. An amount equal to two (2) times Employee’s
Base Salary as in effect at the date of termination shall be paid in a
lump sum on the date of termination;
(ii) Target Bonus. An amount equal to two (2) times Employee’s
target bonus amount under the Management Bonus Program for the fiscal
year in which the date of termination occurs, to be paid in a lump sum
on the date of termination; and
(iii) Other Benefits. All benefits under Paragraphs 7(b)(ii),
7(b)(iii), 7(b)(iv), and 7(b)(v) shall be extended to Employee as
described in such Paragraphs; provided, however, that all stock
options held by Employee as of the date of a Change in Control shall
fully vest and immediately become exercisable in full. In the event
that Employee is terminated following a Change in Control, all stock
options held by Employee shall remain exercisable for a period of two
(2) years following such termination.
(iv) Section 409A Compliance. Notwithstanding the foregoing,
if Employee is a “Specified Employee” of the Company for purposes of
Code Section 409A at the time of a payment event set forth in Section
8(a) and the Company determines in good faith that no applicable
exception to the requirements of Code Section 409A exists for the
payment, then no payments pursuant to Section 8(a)(i) and (ii) shall
be made to Employee by the Company until the amount of time has passed
that is necessary to avoid incurring excise taxes under Code Section
409A. Should this provision result in a delay of payments to
Employee, on the first day any such payments may be made without
incurring a penalty pursuant to Code Section 409A (the “409A Payment
Date”), the Company shall begin to make such payments as described in
Section 8(a)(i) and (ii), provided that any amounts that would have
been payable earlier but for the application of this paragraph
8(a)(iv)), shall be paid in lump-sum on the 409A Payment Date along
with accrued interest at the prime rate of interest set forth in the
Western Edition of the Wall Street Journal from the date that payments
to Employee should have been made under this Agreement. The balance
of such severance payments shall be payable in accordance with regular
payroll timing and the COBRA premiums shall be reimbursed monthly.
For purposes of this provision, the term Specified Employee shall have
the meaning set forth in Code Section 409A(2)(B)(i) or any successor
provision and the treasury regulations and rulings issued hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their
respective authorized officers as of the day and year first above written.
| QUEPASA CORPORATION | ||
| /s/ Xxxx X. Xxxxxx | ||
| By: Xxxx X. Xxxxxx | ||
| Its: Chief Executive Officer | ||
| EMPLOYEE | ||
| /s/ Xxxxxxx X. Matte | ||
| By: Xxxxxxx X. Matte |
[Signature page to Amendment No. 1]
