EXHIBIT 10.13(a)
AMENDMENT NO. 1
TO
EXECUTIVE EMPLOYMENT AGREEMENT
(AMENDED AND RESTATED VERSION)
THIS AMENDMENT NO. 1 (this "Amendment"), as amended and restated, is
entered into by and between XXXXXX INTERACTIVE SYSTEMS, INC. (the "Company") and
XXXXXXX X. XXX ("Executive"), effective August 5, 1998.
WITNESSETH
WHEREAS, the Company and Executive entered into an Executive Employment
Agreement effective June 25, 1995 (the "Employment Agreement") and the original
Amendment No. 1 to the Employment Agreement effective as of March 4, 1998;
WHEREAS, the parties desire to modify certain provisions in the original
Amendment No. 1 in order to provide Executive greater benefits than those
provided by such original Amendment No. 1 in return for Executive's continued
service to the Company;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, it is hereby agreed by and between the parties hereto that
Amendment No.1 to the Employment Agreement is hereby amended and restated to
read as follows:
1. SUBSTITUTION OF PROVISIONS. The following provisions shall replace Sections
7.1(a) and 7.1(b) of the Employment Agreement:
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7.1 COMPANY INITIATED TERMINATION.
(a) If within the first six (6) months of Executive's employment with
the Company, the Company terminates Executive's employment without cause or
Executive terminates employment because the Company has reduced Executive's
responsibilities, functions, titles, or overall compensation package, Executive
shall receive, as severance: (i) continued payment of Executive's base salary
for twelve (12) months from the Effective Date, (ii) continued health care
benefits for twelve (12) months from the Effective Date following Executive's
date of termination under the federal COBRA law; (iii) accelerated vesting of
any and all shares pursuant to any and all stock options granted to Executive
such that all shares which otherwise would have vested on or before the end of
the twelfth month following the Effective Date had Executive's termination not
occurred until the end of such period will be deemed vested as of the date of
the Executive's termination; and (iv) six (6) months after the date of
Executive's termination to exercise any and all vested shares subject to any and
all stock options granted to Executive (provided that any such extension shall
not extend the maximum term during which any such option may be exercised beyond
ten (10) years).
If after the first six (6) months of Executive's employment with the
Company, the Company terminates Executive's employment without cause or
Executive terminates employment because the Company has reduced Executive's
responsibilities, functions, titles, or overall compensation package, the
Executive shall receive, as severance: (i) continued payment of Executive's base
salary for twelve (12) months; (ii) continued health care benefits for twelve
(12) months following Executive's termination of employment under the federal
COBRA law;
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(iii) accelerated vesting of any and all shares pursuant to any and all stock
options granted to Executive such that all shares which otherwise would have
vested on or before the end of the sixth month following the date of Executive's
termination, with respect to all stock options granted to Executive prior to
March 4, 1998, and the twelfth month following the date of Executive's
termination, with respect to all stock options granted to Executive on or
subsequent to March 4, 1998, will be deemed vested as of the date of the
Executive's termination; and (iv) with respect to all stock options granted to
Executive prior to March 4, 1998, six (6) months, and with respect to all stock
options granted to Executive on or subsequent to March 4, 1998, twelve (12)
months, after the date of Executive's termination to exercise any and all vested
shares subject to any and all stock options granted to Executive (provided that
any such extension shall not extend the maximum term during which any such
option may be exercised beyond ten (10) years). For purposes of this Section 7.1
(a), the second option as described in Section 2.d. shall be considered to have
vested at the rate of 2.0833% per month over 48 months beginning from the
Effective Date.
(b) Notwithstanding Section 7.1(a) above, if the Company (i) merges or
combines with any other company or entity in a manner which produces a change of
control; (ii) sells all or substantially all its assets to any other company or
entity; (iii) has forty percent (40%) or more of its stock acquired by a person
and/or affiliates of such person, the Executive shall receive: (i) continued
payment of base salary for twenty-four (24) months and payment of 200% of
Executive's Bonus following Executive's date of termination for any reason; (ii)
continued health care benefits for twenty-four (24) months following Executive's
termination of employment under the federal COBRA law; (iii) accelerated vesting
of any and all shares,
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pursuant to any and all stock options granted to Executive; and (iv) with
respect to all stock options granted to Executive prior to March 4, 1998, twelve
(12) months, and with respect to all stock options granted to Executive on or
subsequent to March 4, 1998, twenty-four (24) months, after the date of
Executive's termination of employment for any reason to exercise any and all
vested shares subject to any and all stock options granted to Executive
(provided that any such extension shall not extend the maximum term during which
any such option may be exercised beyond ten (10) years). For the purposes of
this agreement, "change of control" means a merger or consolidation in which the
Company is not the surviving corporation, or in which the shareholders of the
Company immediately prior to the merger or consolidation do not hold a majority
of the shares of the resulting corporation and "Bonus" means the average of the
amount of Executive's bonus for the previous two (2) fiscal years of the
Company.
2. TAX CONSEQUENCES. Executive acknowledges that he has been advised by the
Company to consult with a tax advisor or attorney with respect to the tax
consequences, if any, of these amendments to his stock option grants.
3. AFFIRMATION. Subject to the foregoing modifications to Section 7.1(a) and
7.1(b), the Company and Executive each hereby affirm all of the terms and
conditions of the Employment Agreement, and acknowledge that the Employment
Agreement is a binding agreement between the Executive and the Company.
4. ENTIRE AGREEMENT. This Amendment, together with the Employment Agreement,
contains the entire agreement between the parties and constitutes the complete,
final and exclusive embodiment of their agreement with respect to the subject
matter. This Amendment is executed without reliance upon any promise, warranty
or representation, written or oral, by any
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party or any representative of any party other than those expressly contained
herein and it supersedes any other such promises, warranties or representations.
IN WITNESS WHEREOF, the parties have duly authorized and caused this
Amendment to be executed as follows:
XXXXXXX X. XXX XXXXXX INTERACTIVE SYSTEMS, INC.
/s/ Xxxxxxx X. Xxx By: /s/ Xxxxx Xxxxxxxx
_________________________________ __________________________________
Date: November 13, 1998 Title: Vice President, Human Resource
____________________________ ______________________________
Date: November 13, 1998
________________________________
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