Exhibit 10.46
AMENDMENT TO EMPLOYMENT AGREEMENT
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This Amendment to Employment Agreement (this "Amendment"), dated as of
March 7, 2005, is between InfoNow Corporation, a Delaware corporation (the
"Company") and Xxxxxx X. Xxxxxx ("Employee").
RECITALS
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WHEREAS, the Company and Employee are parties to an Employment Agreement
dated February 3, 2004 and effective February 22, 2004 (the "Employment
Agreement");
WHEREAS, the Board of Directors of the Company (the "Board") has appointed
Employee as Interim Chief Executive Officer for a period of six months
commencing on March 4, 2005 (the "Interim Period") and during the Interim Period
Employee's performance will be reviewed by the Board and the Board will
determine, in its sole discretion, whether to (i) appoint Employee permanent
Chief Executive Officer of the Company, (ii) return Employee to the position of
Chief Financial Officer of the Company or (iii) terminate Employee's employment
in accordance with the terms of the Employment Agreement;
WHEREAS, the Company and the Employee desire to amend the Employment
Agreement to provide that Employee will be employed by the Company as its
Interim Chief Executive Officer during the Interim Period;
WHEREAS, Employee acknowledges that the Company has reduced the salaries of
the other members of the Company's senior management team, and in consideration
for Employee's assumption of the duties of Interim Chief Executive Officer,
Employee's salary shall not be reduced; and
WHEREAS, pursuant to Section 16 of the Employment Agreement, no term of the
Employment Agreement may be altered, revoked or waived except by an instrument
in writing signed by the party sought to be charged with such amendment
revocation or waiver.
AGREEMENT
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NOW, THEREFORE, in consideration of the mutual promises contained herein,
the Company and Employee agree as follows:
SECTION 1. CAPACITY AND DUTIES. Section 2 of the Employment Agreement shall
be deleted in its entirety and replaced with the following:
"Employee shall be employed by the Company as its Interim
Chief Executive Officer for a period of six months
commencing on March 4, 2005. The Company's Board of
Directors shall review Employee's performance during this
six month period and will determine, in its sole discretion,
whether to (i) appoint Employee Chief Executive Officer of
the Company, (ii) return Employee to his previous position
of Chief Financial Officer of the Company or (iii) terminate
Employee's employment in accordance with the terms of this
Agreement. During his employment Employee shall perform the
duties and bear the responsibilities commensurate with his
position and shall serve the Company faithfully and to the
best of his ability, under the direction of the Company's
Board of Directors. Employee shall devote his entire working
time, attention and energies to the business of the Company.
His actions shall be such that they do not intentionally
discredit the Company or its products and services. Except
for his involvement in personal investments, provided such
involvement does not require any significant services on his
part or participation in any legally mandated responses or
proceedings related to his former employment with ICG
Communications, Employee shall not engage in any other
business activity or activities that require significant
personal services by Employee or that, in the judgment of
the board of directors, may conflict with the proper
performance of Employee's duties hereunder."
SECTION 2. TERMINATION. Section 5(d) of the Employment Agreement shall be
deleted in its entirety and replaced with the following:
"The Company may terminate this Agreement at any time for
any or no reason upon payment to Employee of one year's
annual salary in accordance with Section 4(b). The Company
shall be deemed to terminate this Agreement under this
Section 5(d) upon the occurrence any of the following
events: (i) Employee is assigned any responsibility or duty
materially inconsistent with his current position, duties
and responsibilities as Interim Chief Executive Officer of
the Company or his former position as Chief Financial
Officer of the Company, if such event shall continue for a
period of 10 days following written notice from Employee to
the Company, (ii) a reduction in Employee's annual salary or
bonus amounts (but not a change in the Targets), (iii)
Employee is required to relocate his place of work or
residence to any city or community outside of the Denver,
Colorado metro area, or (iv) the Company's material breach
of any obligation created by this Agreement if such breach
shall continue for a period of 10 days following written
notice from Employee to the Company. The Company and
Employee expressly agree that the returning of Employee to
the position of Chief Financial Officer of the Company shall
not constitute a termination of this Agreement under this
Section 5(d)."
SECTION 3. OPTION GRANT. InfoNow shall grant options to purchase 100,000
(one hundred thousand) shares of the Company's common stock, such grant to occur
no later than March 31, 2005. Such options will vest on the earlier of the six
(6) month anniversary of the grant date or the removal of Employee as Chief
Executive Officer of the Company.
SECTION 4. GOVERNING LAW. This Amendment shall be governed by and construed
and enforced in accordance with the laws of the State of Colorado, its rules of
conflict of laws notwithstanding.
SECTION 5. TERMS. Capitalized terms not defined herein shall have the
meaning ascribed to them in the Employment Agreement.
SECTION 6. EFFECT OF AMENDMENT. Except as modified by this Amendment, the
Employment Agreement shall remain in full force and effect. In the event of any
conflict between this Amendment and the Employment Agreement, this Amendment
shall control.
SECTION 7. COUNTERPARTS AND TELECOPIES OR FACSIMILES. This Amendment may be
executed in counterparts, or by copies transmitted by telecopier or facsimile,
all of which shall be given the same force and effect as the original.
[SIGNATURE PAGE TO FOLLOW]
SIGNATURES
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
INFONOW CORPORATION
BY:/S/ Xxxxx X. Xxxxxx
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NAME: Xxxxx X. Xxxxxx
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TITLE: Interim Chief Financial Officer
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EMPLOYEE
/s/ Xxxxxx X. Xxxxxx
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NAME: Xxxxxx X. Xxxxxx
