FIRST AMENDMENT TO EMPLOYMENT, NON-COMPETITION AND PROPRIETARY RIGHTS AGREEMENT
Exhibit 10.33
FIRST AMENDMENT TO EMPLOYMENT, NON-COMPETITION
AND PROPRIETARY RIGHTS AGREEMENT
This First Amendment (“Amendment”) dated as of June 30, 2009 amends that certain Employment, Non-Competition and Proprietary Agreement (the “Agreement”) effective as of the 1st day of April, 2007, by and between XXXXXXXX.XXX, INC., a Delaware corporation (the “Company”), and XXXXX XXXXXXX (the “Employee”). Capitalized terms used herein and not otherwise defined shall have the same meaning as set forth in the Agreement.
RECITALS:
A. The Company has filed an S-1/A Registration Statement with the Securities & Exchange Commission in order to effect a public offering of certain shares of its Common Stock and is desirous of entering into this Amendment to adequately compensate her for her additional responsibilities as a result of the proposed public offering and the additional business activities that will be associated with the Company’s ongoing operations.
B. Employee is desirous of amending the Agreement and of continuing to perform services on behalf of the Company to the best of her abilities.
NOW, THEREFORE, in consideration of the foregoing and the agreements, covenants and conditions set forth herein, the Employee and the Company hereby agree as follows:
1. Vesting and Options. Article III of the Agreement is amended by adding the following Section 3.5 to the Article:
3.5 Vesting and Options. As of June 1, 2009, Employee holds the following options of the Company (collectively, the “Existing Options”) and had as of that date no other rights to any other options to purchase stock of the Company:
| # Shares |
Exercise Price |
Expiration Date | ||
| 10,000 | $1.75 | 3/31/13 | ||
| 65,000 | $3.00 | 10/17/15 | ||
| 50,000 | $3.00 | 3/4/15 | ||
| 25,000 | $3.00 | 3/31/16 | ||
| 100,000 | $3.00 | 09/19/16 | ||
| 100,000 | $6.00 | 12/30/17 |
The Company has filed a registration statement and amendments thereto with the Securities & Exchange Commission for an initial public offering (“IPO”) of the common stock of the Company. Effective as of the time of the initial closing of the IPO, provided Employee’s employment with the Company has not previously been terminated (for any reason), Employee shall be granted an option to purchase an additional 100,000 shares of common stock of the Company, subject to adjustment after the date of this Amendment for any forward or reverse splits of the common stock of the Company (the “New Option”) for a term of 10 years,
exercisable at the same price per share as the shares of common stock are sold in the IPO, fully vested, nonforfeitable and with a right to exercise the New Option at any time over its term; irrespective of whether Employee remains in the employ of the Company. Effective as of the time of the initial closing of the IPO, provided Employee has not previously voluntarily resigned from employment with the Company, Employee’s Existing Options shall be modified, to the extent necessary, so that they will all be fully vested as of the date of this Amendment, nonforfeitable and with a right to exercise the Existing Options at any time over their remaining terms, irrespective of whether Employee remains in the employ of the Company.
2. Miscellaneous.
(a) Notice. The address for notification to the Company with respect to this Agreement is hereby changed as follows:
| To Company at: | Xxxxxxxx.xxx Inc. 0000 Xxxxxx Xxxxx Xxxx. XX – Xxxxx 000 Xxxx Xxxxx, Xxxxxxx 00000 | |||||
| Attention: | Xxxxxxx Xxxxxx | |||||
| Telephone: | 000-000-0000 | |||||
| Facsimile: | 000-000-0000 with a copy to 000-000-0000 | |||||
| E-Mail: | xxxxxxx@xxxxxx.xxx | |||||
(b) Arbitration. The fifth sentence of Section 5.7 of the Agreement is amended and restated as follows:
“The arbitrator shall determine which party, if either, prevailed and shall award the prevailing party its or his costs and legal fees.”
(c) Survival. Section 5.12 of the Agreement is amended and restated in its entirety as follows:
5.12 Survival. The parties’ rights and obligations under this Agreement shall survive any termination of this Agreement.
(d) Section 409A Compliance. Article V of the Agreement is amended by adding the following Section 5.13 to the Article:
5.13 Section 409A Compliance. Notwithstanding anything in the Agreement to the contrary, if (i) all or any portion of any payment or payments to which Employee may be entitled under the terms of the Agreement (each, a “Payment”) constitutes a deferral of compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”); (ii) the applicable Payment is payable (or deemed payable) in connection with a “separation from service” as defined in Section 409A(a)(2)(A)(i) of the Code and the regulations and other guidance issued thereunder; and (iii) Employee is a “specified employee” as defined in Section 409A(a)(2)(B)(i) of the Code and the regulations and other guidance issued thereunder, then the applicable Payment shall be made in a lump sum no earlier than the first day of the seventh month following the month in which Employee’s “separation from service” occurs and no later than 15 days thereafter.
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3. Exhibit A. Exhibit A is amended and restated in its entirety as set forth below the signature block hereof.
| COMPANY: | EMPLOYEE: | |||||
| XXXXXXXX.XXX, INC. | ||||||
| Xxxxx Xxxxxxx | ||||||
| By: |
/s/ Xxxxxxx Xxxxxx | /s/ Xxxxx Xxxxxxx | ||||
| Xxxxxxx Xxxxxx, Chairman of the Board | [Signature] | |||||
| Address: | ||||||
| Address: | ||||||
| Employee Owned Inventions: | ||||||
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EXHIBIT A
| 1. | Base Salary: $165,600 per annum. |
| 2. | Bonus matrix: $25,920 per quarter. |
