EXHIBIT 10.8b
AMENDMENT TO EMPLOYMENT AGREEMENT
This "Amendment to Employment Agreement" (this "Amendment") is made on the
22nd day of January 1999 by and between IFS International, Inc., a Delaware
corporation (the "Company"), IFS International, Inc., a New York corporation and
a wholly owned subsidiary of the Company, and any other subsidiary of the
Company and Xxxxx X. Xxxxx (the "Executive"), based on the following:
A. On May 12, 1998, the Company and the Executive executed that certain
"Employment Agreement" (the "Agreement") whereby the Company retained the
services of the Executive as its President and Chief Executive Officer.
B. The Company and the Executive wish to modify the Agreement pursuant to
the terms of this Amendment.
NOW, THEREFORE, the parties to this Amendment agree as follows:
1. Modification to Section 3(a). Section 3(a) of the Agreement shall be
deleted in its entirety and the following shall appear in its place:
Initial Term. Unless this Agreement is previously terminated by either
party as provided in sections 11 or 12 below, the Companies hereby employ the
Executive pursuant to the terms of this Agreement, and the Executive hereby
accepts such employment, for the period beginning on February 15, 1998 and
ending on February 14, 2003 (the "Initial Term").
2. Modification to Section 4(b). Section 4(b) of the Agreement shall be
deleted in its entirety and the following shall appear in its place:
Annual Bonus. The Executive and the Board shall meet no later than 90 days
from the start of each of the Company's fiscal years to establish performance
standards and goals to be met by the Executive, which standards and goals shall
be based upon earnings, cash flows, EBITDA and other objectives that are
mutually agreed to by the Executive and the Board. During the Term, the
Companies shall pay to the Executive, no later than thirty (30) days after the
completion of each fiscal year, a bonus which shall be computed as no more than
80% of Executive's annual salary (the "Annual Bonus"). Executive may elect to
receive payment of the Annual Bonus in cash, in common stock of IFS
International, Inc., a Delaware corporation, or any combination of the two. Any
common stock delivered in payment of the Annual Bonus shall be valued at the
then-current market value (closing average of bid and asked prices) on the
payment date. Nothing in this section shall prevent the Executive and the Board
from mutually agreeing to an alternative computation of the Annual Bonus, which
may be implemented and paid to the Executive in place of the Annual Bonus
described herein. Any Annual Bonus calculated for payment to the Executive for
the period from February 1998 through June 1, 1999 shall take into consideration
the fact that the Executive will have been employed by the Companies for a
period of sixteen (16) months (rather than twelve (12) months) prior to the
calculation of the Annual Bonus. The Companies shall, therefore, calculate the
Annual Bonus for the period starting on June 1, 1998 and ending on May 31, 1999
and shall add to it an additional 33 1/3% of the Annual Bonus amount. The Annual
Bonus shall be subject to any Applicable Tax Withholdings and/or Employee
Deductions.
3. Modification to Section 4(e). Section 4(e) of the Agreement shall be
deleted in its entirety and the following shall appear in its place:
Stock Options. In conjunction with his agreement to render services to the
Companies, and in conjunction with the execution of this Agreement, the
Executive shall receive a total of three hundred thirty thousand (330,000)
options to purchase the Company's common stock. The Executive and the Company
acknowledge that the Executive has received a total of sixty thousand (60,000)
options (the "1996 Options"), the terms and conditions of which are governed by
the 1996 IFS International, Inc. Stock Option Plan. The remaining two hundred
seventy thousand (270,000) options (the "1998 Options") shall be governed by the
terms and conditions of the 1998 IFS International, Inc. Stock Plan (the "1998
Plan"). The 1998 Options shall vest over a period of five (5) years, fifty-four
thousand (54,000) shares on February 15, 1998 and fifty-four thousand (54,000)
shares on each February 15th thereafter through 2002. The purchase price per
share shall be the fair market value of the Company's common stock as of the
date of approval of the grant. Subject to the requirements of any state or
federal securities laws of the United States, the common stock to be acquired by
exercise of the options granted hereunder shall be freely tradeable. Subject to
the terms and conditions of the 1996 Plan and the 1998 Plan, the Executive shall
be entitled to exercise the options with cash, or will be entitled to a
"cashless" exercise using other common stock of the Company, or will be entitled
to exercise the options using any other consideration acceptable to the Company.
The Executive agrees to be bound by the terms of the 1996 Plan and the 1998 Plan
as adopted.
4. Deletion to Section 4(f). Section 4(f) shall be deleted in its entirety
and not replaced.
5. Modification to Section 12(e). The last sentence of Section 12(e) shall
be modified to state the following: "Notwithstanding the foregoing, amounts
which are vested in any Employee Benefit Plans, including stock options, shall
be payable in accordance with such plan."
6. Modification to Section 13. Section 13 shall be deleted in its entirety
and the following shall appear in its place:
In the event the Executive's employment hereunder is terminated before the
expiration of a Term, and such termination is attributable to (i) an event
defined as a Change in Control; (ii) an event defined as a Termination by the
Executive for Good Reason; and/or (iii) termination by the Board of Directors of
IFS International, Inc., a Delaware corporation, which does not constitute a
Termination for Cause; then all rights and obligations of the Companies and the
Executive under section 2 [Employment Obligations], section 4 [Compensation],
section 5 [Allowances], section 6 [Business Expenses], and section 8 [Personal
Time-Off] shall terminate as of the effective date of the termination date;
provided, however: that the Executive shall receive, in a lump sum and without
discount to present value, an amount equal to: the sum of the Executive's Annual
Salary (calculated at the then current rate) plus Annual Bonus (calculated as
eighty percent (80%) of the Executive's Annual Salary) multiplied by the larger
of either (x) the number of years then remaining in the term of this Agreement
(calculated to the nearest day as of the termination date), or (y) two years. In
addition:
(a) All stock options which have been or are scheduled to be granted during
the Term of this Agreement pursuant to section 4(e) shall become fully vested at
the prevailing xxxxx xxxxx and the Companies shall pay to the Executive a sum
which shall permit the Executive to exercise, in his sole and absolute
discretion, all or some of the options;
(b) At the election of the Executive, the Companies shall (i) provide to
the Executive and his spouse and dependents, for a period of twelve (12) months,
medical, dental, and vision insurance and, to the Executive, disability
insurance, which benefits shall be comparable to the benefits received by the
Executive at the time of termination of his employment; or (ii) provide to the
Executive additional compensation, payable on a monthly basis, which would
approximate the cost to the Executive to obtain such comparable benefits;
(c) The Companies shall provide to the Executive a fully paid up life
insurance policy insuring the life of the Executive in the amount of Five
Hundred Thousand dollars ($500,000);
(d) The Companies shall forgive any unpaid loans or indebtedness owed by
the Executive to the Companies or any of them;
(e) The Companies shall immediately purchase the Annuity;
(f) The Companies shall immediately purchase the Executive's automobile and
transfer title, free and clear of all liens and encumbrances, to the Executive;
and
(g) The Companies shall reimburse the Executive for the Executive's
business expenses incurred through the effective date of the termination, within
three (3) business days of the Executive's submission of the Executive's expense
report to the Companies.
The Companies shall gross-up the payment comprised of the Executive's
Annual Salary plus Annual Bonus to cover the payment of any and all taxes, of
any kind or nature, that are incurred by the Executive as a result of his
receipt of the foregoing compensation.
The Executive shall not be required to mitigate the amount of any payment
pursuant to this section 13 by seeking other employment or otherwise, and no
such payment shall be offset or reduced by the amount of any compensation or
benefits provided to the Executive in any subsequent employment. The provisions
of this section 13 shall not be deemed to prejudice the rights of the Companies
or the Executive to any remedy or damages to which such party may be entitled by
reason of a breach of this Agreement by the other party, whether at law or
equity.
7. Deletion of Section 14. Section 14 shall be deleted in its entirety
and not replaced.
8. All Other Terms and Provisions of the Agreement To Remain. The parties
agree that all other terms and provisions of the Agreement shall remain the
same.
9. Electronically Transmitted Documents. This Amendment shall have no force
and effect until it is fully executed by all parties hereto. If a copy or
counterpart of this Amendment is originally executed and such copy or
counterpart is thereafter transmitted electronically by facsimile or similar
device, such facsimile document shall for all purposes be treated as if manually
signed by the party whose facsimile signature appears.
WHEREFORE, the parties hereto have executed this Agreement in the City of
Albany, State of New York, as of the date first set forth above.
IFS INTERNATIONAL, INC.
A Delaware Corporation
By:_____________________________________
Chairman of the Board of Directors
By:_____________________________________
Chairman of the Compensation Committee
of the Board of Directors
By:_____________________________________
Secretary
IFS INTERNATIONAL, INC.
A New York Corporation
By:_____________________________________
Executive Vice President
By:_____________________________________
Secretary
EXECUTIVE:
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Xxxxx X. Xxxxx
