AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment to Employment Agreement ("Amendment") is
entered into between Xxxxxxx X. Xxxxx ("Executive") and ICF Communication
Solutions, Inc., a California corporation ("ICF") and COMC, Inc., a Delaware
corporation and the sole shareholder of ICF ("COMC" and, collectively with ICF,
the "Company"), effective December 21, 2001 (the "Effective Date").
WHEREAS, Executive and Company entered into an Employment
Agreement dated August 10, 1999 ("Employment Agreement") and wish to amend the
Employment Agreement as follows:
1. Term of Employment. Section 2 of the Employment Agreement, entitled
"Term of Employment" is amended and restated in its entirety to read as follows:
"2. Term of Employment. This Agreement shall commence on the
date hereof (the "Employment Date"), and this Agreement, together with all
obligations of Company and Executive hereunder, including but not limited to the
obligations of Company under Section 4(a), shall continue until such time that
the Amended and Restated Subordinated Note executed by COMC in favor of
Executive in the original principal amount of $750,000, a copy of which is
attached hereto as Exhibit II and incorporated herein in its entirety by this
reference, is repaid in full according to its terms, or the Note or portion
thereof is sold or otherwise transferred by Executive. Upon repayment of the
Note in full according to its terms, or the sale or transfer of the Note or any
portion thereof, this Agreement and all obligations hereunder (other than
Executive's obligations under Sections 10, 11, 14, 15 and 16 hereof, which shall
continue according to their terms) shall terminate and be of no further force or
effect (the "Termination Date")."
2. Termination. Sections 7(a), 7(b), 7(c), 7(d), 7(f) and 7(g) of the
Agreement are hereby deleted in their entirety, and Section 7(e) shall hereafter
be Section 7(a).
3. Compensation Upon Termination or During Disability. Section 8 shall
be deleted in its entirety and upon Executive's death or disability, the Company
shall pay Executive or Executive's estate all amounts that Executive would
otherwise be entitled to for so long as the Amended and Restated Subordinated
Note, or any portion thereof, remains unpaid.
4. Nonsolicitation. Existing Section 14 and all references thereto
shall be changed and renumbered as Section 17, and new Sections 14, 15 and 16
entitled Nonsolicitation, Notification of New Employer, and Equitable Relief,
respectively, shall be added to the Agreement to read as follows:
"14. Nonsolicitation. Executive agrees that during the period
of his or her employment with Company and for one year after the date of
termination of his or her employment with Company, he or she will not:
(A) induce, solicit, recruit or encourage any employee of
Company to leave the employ of Company, which means that he or
she will not:
(i) disclose to any third party the names, backgrounds or
qualifications of any employees or otherwise identify them
as potential candidates for employment; or
(ii) personally or through any other person approach,
recruit, interview or otherwise solicit employees to work
for any other employer.
AND
(B) solicit, either on behalf of Executive or any third
party, the business of any client or customer of Company:
(i) whose account Executive has been assigned to or whose
account Executive has serviced during the one-year period
prior to the date of Executive's termination of employment
with Company, or (ii) using any Confidential Information of
Company, either on behalf of Executive or any third party.
AND
(C) solicit the business of any prospective customer or
client of Company:
(i) whose business Executive was involved in soliciting
or recruiting while employed by Company, or
(ii) using any Confidential Information of Company.
Upon termination of employment, Company will provide Executive with a
list of clients and/or customers covered by Paragraph 14(B). If Company fails,
for any reason, to provide Executive with such list, or is unable, for any
reason, to deliver such list to Executive, Executive acknowledges and agrees
that he or she remains bound by Paragraph 14(B).
15. Notification to New Employer. If Executive leaves the
Company's employ, Executive hereby consents to Company notifying Executive's new
employer about Executive's rights and obligations under this Agreement.
16. Equitable Relief. Executive agrees that it would be
impossible or inadequate to measure and calculate the Company's damages from any
breach of the covenants set forth in this Agreement. Accordingly, Executive
agrees that if Executive breaches this Agreement, the Company will have
available, in addition to any other right or remedy available, the right to
obtain an injunction from a court of competent jurisdiction restraining such
breach or threatened breach and to specific performance of any such provision of
this Agreement. Executive further agrees that no bond or other security shall be
required in obtaining such equitable relief and Executive hereby consents to
such injunction's issuance and to the ordering of specific performance. In any
legal proceeding commenced under this Paragraph 16, the losing party shall pay
the prevailing party's actual attorneys' fees and expenses incurred in the
preparation for, conduct of or appeal or enforcement of judgment from the
proceeding. The phrase "prevailing party" shall mean the party who is determined
in the proceeding to have prevailed or who prevails by dismissal, default or
otherwise."
6. References to Agreement. Upon and after the effectiveness of this
Amendment, each reference in the Agreement to "this Agreement," "hereunder,"
"hereof" or words of like import referring to the Agreement, shall mean and be a
reference to the Agreement as amended hereby.
7. Effect of Amendment. Except as specifically amended above, the
Agreement is and shall continue to be in full force and effect and is hereby
ratified and confirmed in all respects by Executive and Company.
8. Waiver. The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of Executive or
Company under the Agreement, as amended hereby, nor constitute a waiver of any
provision of the Agreement, as amended hereby.
9. Severability. If any one or more of the provisions contained in this
Amendment is, for any reason, held to be unenforceable, that holding will not
affect any other provision of this Amendment, but, with respect only to that
jurisdiction holding the provision to be unenforceable, this Amendment shall
then be construed as if such unenforceable provision or provisions had never
been contained therein.
10. Governing Law. This Amendment will be governed by California law.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered as of the Effective Date.
"EXECUTIVE"
_______________________________
XXXXXXX X. XXXXX
"ICF"
ICF COMMUNICATION SOLUTIONS, INC., a
California corporation
By: __________________________________
Its: ______________________________
By: __________________________________
Its: ______________________________
"COMC"
COMC, INC., a Delaware corporation
By: __________________________________
Its: ______________________________
By: __________________________________
Its: ______________________________
Exhibit III
Note
