EXHIBIT 10.9 AMENDMENT TO THE EMPLOYMENT AGREEMENT BETWEEN
XXXXXX X. XXXXX AND THE REGISTRANT
June 28, 2001
Xxx Xxxxx
VP and CFO
ONTRACK Data International, Inc.
0000 Xxxxxxxxx Xxxx
Xxxx Xxxxxxx, XX 00000
Re: Amendment to (a) Employment Letter of April 11, 1996, and (b) Amendment to
Employment Letter of February 2, 2000
Dear Xxx:
This letter agreement will confirm our mutual agreement and understanding of
your employment with Ontrack as of the above date, in conformity with
Compensation Committee recommendations approved by the Board at the June 27,
2001 Telephonic Board Meeting.
1. You will continue to hold the executive officer positions of Vice President
and CFO, but you will now report to Ontrack's new CEO and President, Xxx Xxxxx.
You will continue to be eligible for any relevant executive incentive
compensation plan benefits approved by the Compensation Committee and/or the
Board.
2. Your existing base salary will remain the same at approximately $166,000 per
year.
3. In the event your employment is terminated for any reason other than (A) your
disability or (B) your willful engagement in fraud or dishonesty which is
demonstrably and materially injurious to the Company or any of its subsidiaries,
monetarily or otherwise, you will receive a severance payment, paid out normally
in the same manner as salary, equal to twelve (12) months base salary, including
normal Company health and other benefits, conditioned, however, upon your
ongoing compliance with the terms of the Ontrack Confidentiality Agreement and
Covenant Not To Compete which you have previously signed. This Section 3 shall
replace and supercede the paragraph titled "Severance Pay" contained in your
Employment Letter, dated April 11, 1996, and Section 3 of the Amendment to the
Employment Letter, dated February 2, 2000 in their entirety. This Section 3
shall survive the termination of your employment with the Company in accordance
with its terms. This Section 3 shall be binding on any successor to 51% or more
of the business or assets of Ontrack and its subsidiaries, whether by purchase,
merger or otherwise.
4. In addition to the severance benefits provided in Section 3 above, any one or
more of the following occurring without your consent and within 18 months of a
Change in Control of Ontrack (as defined in the exhibit attached), will entitle
you to severance pay equaling six (6) times your then-current monthly
compensation, excluding, however, Company health and other benefits:
(A) a termination of your employment by Ontrack, its
subsidiaries or successors to Ontrack's business by merger or
otherwise;
(B) the assignment to you of any duties inconsistent with your
status or position with Ontrack, or a substantial diminution
in the nature or status of your responsibilities, in each case
from those immediately prior to the Change of Control; or
(C) a reduction in your annual compensation including, but not
limited to, base pay and short and long term incentive pay in
effect prior to the Change of Control.
Notwithstanding, any other provisions of this Letter Agreement, if you
(a) breach your fiduciary duties as an officer or employee, (b) willfully engage
in fraud or dishonesty which is demonstrably and materially injurious to the
Company or any of its subsidiaries, monetarily or otherwise, or (c) breach any
covenant not to compete, confidentiality obligation or other written contract
with the Company or any subsidiary of the Company, your rights to any benefits
otherwise payable due to a Change in Control under this subsection shall
immediately terminate and be null and void. This Section 4 shall replace and
supercede Section 4 of the Amendment to the Employment Letter, dated February 2,
2000 in its entirety. This Section 4 shall survive the termination of your
employment with the Company occurring within 18 months of a Change of Control of
Ontrack in accordance with its terms. This Section 4 shall be binding on any
successor to 51% or more of the business or assets of Ontrack and its
subsidiaries, whether by purchase, merger or otherwise.
5. You are hereby granted 10,000 additional Ontrack non-statutory stock options
at the market price of $5.65, the closing market price as of June 27, 2001.
All other terms and conditions of the offer of employment of April 11, 1996, and
the letter agreement of February 2, 2000, remain in full force and effect except
to the extent specifically modified by this letter agreement.
Sincerely,
Xxxx Xxxxxx
Chairman of the Board
Agreed: __________________________
Xxx Xxxxx
June 28, 2001
CHANGE IN CONTROL EXHIBIT TO LETTER AGREEMENT DATED JUNE 28, 2001
A "Change in Control" shall be deemed to have occurred if (i) there shall be
consummated (aa) any reorganization, consolidation or merger of the Company in
which the Company is not the continuing or surviving corporation or pursuant to
which shares of the Company's Common Stock would be converted into cash,
securities or other property, in either case other than a merger of the Company
in which the holders of the Company's Common Stock immediately prior to the
merger have the same proportionate ownership of common stock of the surviving
corporation immediately after the merger, or (bb) any sale, lease, exchange or
other transfer (in one transaction or a series of related transactions) of all,
or substantially all, of the assets of the Company, or (ii) any "person" (as
defined in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), shall become the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of 50% or more of
the Company's outstanding Common Stock, or (iii) during any period of two
consecutive years, individuals who at the beginning of such period constitute
the entire Board of Directors of the Company shall cease for any reason to
constitute at least one-half of the membership thereof unless the election, or
the nomination for election by the Company's shareholders, of each new director
was approved by a vote of at least one-half of the directors then still in
office who were directors at the beginning of the period.
