EXHIBIT 10.5
EMPLOYMENT AGREEMENT
Amendment Number 1
THIS EMPLOYMENT AGREEMENT AMENDMENT NUMBER 1 ("Amendment")
dated as of January 1, 2005, is made between Xxxxxx Interactive Inc., a Delaware
corporation ("Company"), and Xxxxxxx X. Xxxxx ("Executive"). This Amendment
amends the Employment Agreement between the Company and the Executive dated as
of April 1, 2004 (the "Agreement").
1. A new Section 4.9(c) is hereby added to the Agreement
to read as follows:
If all or any portion of the payments or other benefits paid
or payable to Executive under this Agreement and under any
other plan, program or agreement of the Company or its
affiliates, in each case, however, in connection with or after
a Change of Control, are determined to constitute an excess
parachute payment within the meaning of Section 280G of the
Internal Revenue Code of 1986, as amended, and as it may be
amended on or after the date of this Agreement (the "Code"),
and results in the imposition on Executive of an excise tax
under Section 4999 of the Code, then, in addition to any other
benefits to which Executive is entitled under this Agreement,
Xxxxxx shall pay to Executive an amount equal to the sum of
(i) the excise taxes payable by Executive by reason of
receiving excess payments; and (ii) a gross-up amount
necessary to offset any and all applicable federal, state, and
local excise, income, or other taxes incurred by Executive by
reason of Xxxxxx'x payment of the excise tax described in (i)
above.
2. All other terms of the Agreement shall remain in full
force and effect.
IN WITNESS WHEREOF, this Agreement has been executed and
delivered as of the date first above written.
XXXXXX INTERACTIVE INC.
By: /s/ Xxxxxx X. Xxxxx
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Title: Chief Executive Officer
/s/ Xxxxxxx X. Xxxxx
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XXXXXXX X. XXXXX
