AMENDMENT TO
EMPLOYMENT, NON-SOLICITATION, CONFIDENTIALITY
AND NON-COMPETITION AGREEMENT
THIS AMENDMENT is made and entered into effective as of the 1st day of
January, 1999, by and between Celerity Systems, Inc., a Delaware corporation
(hereinafter the "Company") and Xxxxx Xxxx (hereinafter the "Executive"). This
Amendment amends the Employment, Non-solicitation, Confidentiality and
Non-competition Agreement (the "Agreement") entered into between the parties as
of May 1, 1995. Except to the extent that the Agreement is specifically amended
hereby, the Agreement shall remain in full force and effect.
Recitals
A. The Executive is currently the Executive Vice President of Research and
Architecture of the Company and in that capacity his principal
responsibility is the development of new products for the Company.
B. The Company is in the process of refining and adapting its existing
products for specific sales opportunities and does not expect, for several
months, to engage in significant new product development activities. As
such, several employees that were a part of the Research and Architecture
department have been reassigned to the Engineering department.
C. As a result of the matters set forth in paragraphs A. and B. above, the
Executive desires to take a temporary leave of absence from his employment
with the Company to pursue certain other personal and professional
interests and the Company has determined that such a leave of absence
would be appropriate and would not jeopardize the interests of the
Company.
Terms and Conditions
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, the parties hereto do hereby agree as follows:
1 The Executive will take a voluntary leave of absence from his employment
with the Company, effective as of January 1, 1999, and continuing through
the end of the term of the Agreement (April 30, 2000). In the event that
the Executive desires to return to employment with the Company prior to
such time, he may do so provided that he shall give the Company written
notice at least 30 days prior to the date on which the Executive intends
to return to such employment. In the event that the Company desires to
have the Executive return to employment prior to April 30, 2000, it may
elect to do so provided that it gives the Executive written notice at
least 60 days prior to the date that the Executive is to return to such
employment.
2 The entire period of the leave of absence will be counted under the
Agreement and will not extend the term of the Agreement.
3 During the leave of absence, the Executive will provide consulting
services to the Company for up to 20 hours per month on such projects as
the Company assigns to the Executive. The Company and the Executive will
cooperate, in good faith, to determine the specific times when such
services will be provided. The Executive acknowledges, however, that such
services may be requested with respect to time sensitive projects and he
will use his best efforts to be available to provide such services so as
to enable the Company to meet required deadlines.
4 In consideration for the consulting services to be provided pursuant to
Section 3 above, the Company shall pay the Executive a monthly retainer of
$2,500 payable on the ______ day of each month. The parties acknowledge
and agree that, except for such additional amounts as may be due pursuant
to Sections 5 and 6 below, this payment constitutes the only payment due
to the Executive for such consulting services and the Executive will not
be entitled to salary, benefits, expenses, options, bonuses, vacation or
any other form of compensation pursuant to the Agreement during the period
of his leave of absence.
5 The Company may require the Executive to provide consulting services in
addition to the services set forth in Section 3 above for up to 20
additional hours per month on such projects as the Company determines and
at such times as the Company reasonably requests. The Company shall pay
the Executive $200 per hour for such additional services, provided,
however, that (i) the Executive shall not perform such additional
consulting services without the prior written authorization of the
Company, (ii) the Executive shall provide the Company with an accounting
of and invoice for the additional hours worked, and (iii) if the Company
has authorized a maximum numbers of hours to be worked by the Executive,
he shall not invoice the Company and the Company shall not be responsible
for payment of any amounts in excess of such maximum number without the
Company's express written consent.
6 In the event that the Company requires consulting services from the
Executive in excess of 40 hours in any one month period during the period
of the leave of absence, the Executive shall use reasonable efforts to
provide such services and the Executive shall be compensated for such
services on the same terms as are set forth in Section 5 above, including
the terms relating to authorization to perform work, accounting and
invoicing.
7 The Executive agrees to remain as a member of the Board of Directors of
the Company during the leave of absence. Such agreement by the Executive
does not prevent the Company from removing the Executive from the Board of
Directors or failing to nominate him for future election in accordance
with the laws and bylaws governing the Company. In addition, in the event
that the leave of absence continues for more than ___ days, the Executive
agrees to resign from the Board of Directors upon written request from the
Company.
8 The Executive specifically acknowledges and agrees that the provisions of
Section 7 of the Agreement remain in full force and effect, with such
changes as are set forth below in this Section 8, during the period of the
leave of absence. Section 7 of the Agreement is amended to provide that
the "Restricted Period" as defined in Section 7.4 of the Agreement shall
begin on January 1, 1999, and the Agreement is further amended to provide
that "Company
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Business" as defined in Section 7.3 of the Agreement includes, but is not
limited to, development, manufacture, license and sale of T 6000 set top
boxes and all products related to or derived from the T 6000 set top box.
9 The parties agree that the Company may issue an announcement or other
public statement addressing the leave of absence taken by the Executive.
The Executive shall not issue any general public statement regarding the
leave of absence and all statements made by the Executive relating to the
leave of absence shall be consistent with the provisions of this
Amendment.
10 Upon the conclusion of the leave of absence and the return of the
Executive to the full time employment of the Company, this Amendment shall
terminate and the original terms of the Agreement shall govern the
employment relationship of the parties through the remaining term of the
Agreement, if any.
WITNESS the execution hereof as of the day and year first above written.
CELERITY SYSTEMS, INC. EXECUTIVE:
By:_________________________ _______________________
Xxxxx Xxxx
Title:_____________________
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