Exhibit 10.12
STORAGENETWORKS, INC.
AMENDMENT TO EXECUTIVE RETENTION AGREEMENT
This Amendment to Incentive Executive Retention Agreement is entered into
as of the 5th day of March between StorageNetworks, Inc. (the "Company") and
Xxxx X. Xxxxxxxx (the "Executive").
WHEREAS, the Company and the Executive are parties to that certain
Executive Retention Agreement dated as of August 8, 2002 (the "Agreement");
WHEREAS, the Company and the Executive desire to amend the Agreement as
provided herein.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Executive
hereby agree as follows:
1. Section 1.1(a)(c) of the Agreement is hereby amended and restated in
its entirety as follows:
"(c) the consummation of a merger, consolidation, reorganization,
recapitalization or statutory share exchange involving the Company or a sale or
other disposition of all or substantially all of the assets of the Company in
one or a series of transactions (a "Business Combination"). Solely for purposes
of Section 4.1 only, such a transaction shall not be considered a Change of
Control if, immediately following such Business Combination, each of the
following two conditions is satisfied: (i) all or substantially all of the
individuals and entities who were the beneficial owners of the Outstanding
Company Common Stock and Outstanding Company Voting Securities immediately prior
to such Business Combination beneficially own, directly or indirectly, more than
60% of the then-outstanding shares of common stock and the combined voting power
of the then-outstanding securities entitled to vote generally in the election of
directors, respectively, of the resulting or acquiring corporation in such
Business Combination (which shall include, without limitation, a corporation
which as a result of such transaction owns the Company or substantially all of
the Company's assets either directly or through one or more subsidiaries) (such
resulting or acquiring corporation is referred to herein as the "Acquiring
Corporation") in substantially the same proportions as their ownership,
immediately prior to such Business Combination, of the Outstanding Company
Common Stock and Outstanding Company Voting Securities, respectively; and (ii)
no Person (excluding the Acquiring Corporation or any employee benefit plan (or
related trust) maintained or sponsored by the Company or by the Acquiring
Corporation) beneficially owns, directly or indirectly, 20% or more of the then
outstanding shares of common stock of the Acquiring Corporation, or of the
combined voting power of the then-outstanding securities of such corporation
entitled to vote generally in the election of directors (except to the extent
that such ownership existed prior to the Business Combination); or"
2. Section 4.2(a) of the Agreement is hereby amended by adding the following
provision after Section 4.2(a)(iv):
"(v) If a Change of Control has occurred prior to the Date of
Termination, to the extent not previously accelerated or vested pursuant to
Section 4.1 or otherwise, (a) each outstanding option to purchase shares of
Common Stock of the Company held by the Executive shall become immediately
exercisable in full and shares of Common Stock of the Company received upon
exercise of any options will no longer be subject to a right of repurchase by
the Company, (b) each outstanding restricted stock award shall be deemed to be
fully vested and will no longer be subject to a right of repurchase by the
Company and (c) notwithstanding any provision in any applicable option agreement
to the contrary, each such option shall continue to be exercisable by the
Executive (to the extent such option was exercisable on the Date of Termination)
for a period of twelve months following the Date of Termination."
3. Section 6.1 of the Agreement is hereby amended and restated in its
entirety as follows:
"6.1 Successor to Company. The Company shall require any successor
(whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business or assets of the
Company expressly to assume and agree to perform this Agreement to the
same extent that the Company would be required to perform it if no such
succession had taken place. Failure of the Company to obtain an
assumption of this Agreement at or prior to the effectiveness of any
succession shall be a breach of this Agreement and shall constitute a
termination without Cause, except that for purposes of implementing the
foregoing, the date on which any such succession becomes effective shall
be deemed the Date of Termination. In addition, notwithstanding any other
provision of this Agreement to the contrary, any termination by the
Executive of his employment for Good Reason following a Change of Control
shall be considered a termination without Cause, entitling the Executive
to all of the benefits provided for herein in connection with a
termination without Cause. As used in this Agreement, "Company" shall
mean the Company as defined above and any successor to its business or
assets as aforesaid which assumes and agrees to perform this Agreement,
by operation of law or otherwise."
4. Except as amended hereby, all other provisions of the Agreement shall
remain in full force and effect.
IN WITNESS WHEREOF, the Company and the Executive have executed this
Amendment as of the date set forth above.
STORAGENETWORKS, INC. EXECUTIVE
By: /s/ Xxxx X. Xxxxx /s/ Xxxx X. Xxxxxxxx
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Title: Vice President and General Counsel Xxxx X. Xxxxxxxx
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