AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
Exhibit
10.2
AMENDMENT
NO. 1 TO
This Amendment No. 1 to Employment
Agreement ("Amendment")
is entered into as of July 1, 2009 by and between Telanetix, Inc., a Delaware
corporation (the "Company"), and J. Xxxx Xxxxx, an
individual ("Executive"), with respect to
the following facts:
A. The
Company and Executive are parties to that certain Employment Agreement dated as
of April 28, 2008 (the "Agreement").
B. The
Company desires to provide Executive with additional severance compensation
in the event of a termination without cause for the purpose of providing
Executive additional economic security and motivating Executive to remain in the
employment of the Company
C. The
Company and Executive now desire to amend the Agreement on the terms and
conditions contained in this Amendment.
NOW,
THEREFORE, in consideration of the foregoing premises and the mutual covenants
contained in this Amendment, and intending to be legally bound, the Company and
Executive agree as follows:
1. Amendments.
1.1 Termination Without
Cause. Section 8.2 of the Agreement is deleted in its entirety
and replaced with the following:
8.2 At the Election of the
Company Without Cause. The Company may, immediately and unilaterally,
terminate the Executive’s employment and this Agreement at any time without
cause upon written notification to the Executive.
(i) If the Company so terminates
pursuant to this Section 8.2 (i.e., none of the matters specified in Section 8.1
have occurred), all unvested Options will continue to vest in accordance with
Section 6.4 of this Agreement, and the expiration date for exercise of all
vested Options granted to the Executive shall be determined in accordance with
the terms of the Company’s 2005 Equity Incentive Plan. In the event
of a termination without cause initiated by the Company, the Company shall pay
the Executive a severance payment (“Severance Payment”) equivalent to twelve
(12) months of the Executive’s then current Base Salary at the time of
termination, made payable in installments in accordance with the Company’s pay
period practices.
(ii) If
the Company so terminates pursuant to this Section 8.2 and such termination
occurs within twelve months following a Sale or Merger Event, then (A) the
Severance Payment shall be an amount equivalent to twelve (12) months of the
Executive’s then current Base Salary and Bonus at the time of termination
(calculated at 100% of the potential Bonus amount), and payable in installments
in accordance with the Company’s pay period practices, and (B) provided
Executive adheres to the non-competition provision of Section 10.3 for the full
12 months following termination of employment, the Company shall pay to
Executive as an additional Severance Payment an additional amount equivalent to
twelve (12) months of the Executive’s then current Base Salary and Bonus at the
time of termination, such additional amount to be paid in a lump sum on the one
year anniversary of the termination of employment.
The
Severance Payment under either scenario is contingent upon Executive’s execution
of a general release of claims in a form acceptable to the Company, and complies
with the post termination obligations imposed upon him by Section 10 of this
Agreement. Except as described in Section 6.4 of this Agreement and
in this Section 8.2, the Company shall have no other obligations to the
Executive in the event that the Executive’s employment is terminated pursuant to
this Section 8.2. Termination of the Executive’s employment without cause
pursuant to this Section 8.2 shall be in addition to and without prejudice to
any other right or remedy to which the Company may be entitled at law, in
equity, or under this Agreement.
1.2 Constructive
Termination. A new Section 8.5 of the Agreement is added to
the Agreement which provides as follows:
8.5 Constructive
Termination. Executive shall be deemed to have been terminated
without cause under Section 8.2 if the Company, without Executive’s prior
written consent: (i) significantly reduces the responsibilities and/or duties of
Executive, excluding for this purpose an isolated, insubstantial and inadvertent
action not taken in bad faith and which is remedied by the Company promptly
after receipt of notice thereof given by Executive; (ii) reduces Executive’s
base salary except that this clause shall not apply if the salary reduction is
of not more than 10% and is applicable to all Company executives above the rank
of Vice President, (iii) reduces Executive’s bonus opportunity except that this
clause shall not apply if the bonus opportunity reduction is applicable to all
Company executives above the rank of Vice President, (iv) materially reduces the
aggregate benefits provided to Executive, except that this clause shall not
apply if the benefit reduction is applicable to all Company executives above the
rank of Vice President, (v) changes the location of Executive’s office to a
location which is fifty (50) miles or more from the office where Executive is
located on the date hereof, or (vi) if a successor to the Company fails to
assume this Agreement.
2. Effect on
Agreement. Except as
expressly modified by this Amendment, all terms, conditions and provisions of
the Agreement shall continue in full force and effect. In the event
of a conflict between the terms and conditions of the Agreement and the terms
and conditions of this Amendment, the terms and conditions of this Amendment
shall prevail.
3. Entire
Agreement. The Agreement, as amended by this Amendment,
constitutes the complete and exclusive statement of the agreement between the
parties, and supersedes all prior proposals and understandings, oral and
written, relating to the subject matter contained herein. This
Amendment shall not be modified or rescinded except in a writing signed by the
parties.
4. Counterparts. This
Amendment may be executed in multiple counterparts and may be delivered by
facsimile transmission or by electronic mail in portable document format ("PDF") or other means intended
to preserve the original graphic content of the signature. Each such
facsimile or PDF counterpart shall constitute an original, and all of which,
taken together, shall constitute one instrument.
IN
WITNESS WHEREOF, the parties have caused this Amendment to be executed and
delivered as of the date first written above.
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TELANETIX,
INC.
By: /s/ Xxxxxxx
Xxxxxxx
Xxxxxxx X. Xxxxxxx, CEO
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/s/
J. Xxxx
Xxxxx
J.
Xxxx Xxxxx
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