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EXHIBIT 10.20
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
THIS FIRST AMENDMENT TO EMPLOYMENT AGREEMENT (this "Amendment") dated
as of November 15, 1999, is entered into by and among FutureLink Corp., a
Delaware corporation (the "Company"), and the successor-in-interest to
FutureLink Distribution Corp., a Colorado corporation, and Xxxxxxx X. Xxxxxx,
Xx. (the "Employee") in order to amend the Employment Agreement entered between
the parties hereto on July 15, 1999, which became effective August 1, 1999 (the
"Employment Agreement"). All capitalized terms used herein and not otherwise
defined shall have the meanings set forth in the Employment Agreement unless the
context otherwise requires.
RECITALS
WHEREAS, pursuant to the Employment Agreement, the Employee
has served as the Company's Executive Vice-President Sales and Marketing since
August 1, 1999;
WHEREAS, the parties desire that the Employee serve as the
Company's Executive Vice-President for Application Service Provision;
WHEREAS, concurrently and in connection with the execution of
the Employment Agreement, the Company and the Employee entered into a Loan
Agreement (the "Loan Agreement") and Promissory Note (the "Note") pursuant to
which the Company loaned the Employee Two Million Dollars ($2,000,000) to be
used to purchase common stock of the Company (the "Loan");
WHEREAS, the Company and the Employee are amending the Loan
Agreement;
AND WHEREAS the Employee and the Company wish to amend the
Employment Agreement to change the Employee's position with the Company, and to
conform to the amendment to the Loan Agreement; and
NOW THEREFORE, in consideration of the premises and of the
mutual covenants and agreements herein contained the parties hereto agree as
follows:
AGREEMENT
1. Section 1.1 of the Employment Agreement is hereby deleted in its
entirety and superceded by the following:
"1.1 Position and Duties. The Company hereby engages and employs the
Executive as Executive Vice-President for Application
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Service Provision, with his principal office in Tysons Corner,
Virginia, for the term set forth in this Agreement."
"The Company's Board of Directors (the "Board") may provide such
additional designations of title to the Executive as the Board, in its
discretion, may deem appropriate. The Executive shall perform the
executive duties and functions related to the above positions, subject
to the reasonable limitations of authority set forth from time to time
in the resolutions of the Board and applicable law."
2. Section 2.4 of the Employment Agreement is hereby deleted in its
entirety and superceded by the following:
"2.4 Share Purchase and Loan. Upon execution of this Employment
Agreement, the parties shall execute the Confidentiality and
Non-Competition Agreement attached as Schedule "A" hereto, the Loan
Agreement attached as Schedule "B" hereto (the "Loan Agreement") and
the Escrow Agreement attached as Schedule "C" hereto (the "Escrow
Agreement"). Under the terms of the Loan Agreement and subject to the
terms of the Escrow Agreement, the Company shall immediately loan to
the Executive the sum of $2,000,000.".
"The shares held pursuant to the Escrow Agreement (the "Escrowed
Shares") shall be issued by the Company in accordance with exemptions
from registration in accordance with applicable securities laws and
shall be "legended" appropriately. However, these Escrowed Shares,
whether or not released from escrow in accordance with the Escrow
Agreement, shall be entitled to the following registration rights:
(a) The Company hereby agrees with the Executive that it shall include
the Escrowed Shares in a subsequent Registration Statement on Form
S-1 or such other form as the Company deems appropriate, with the
Securities and Exchange Commission (the "SEC"), covering the resale
of the Escrowed Shares. The Escrowed Shares shall be entitled to
"piggy-back" registration rights and be included on either the
Registration Statement currently being considered by the Company or
on the next Registration Statement to be filed by the Company, at
the Company's discretion;
(b) The Company shall use its best efforts to cause the Registration
Statement provided for above to be filed with the SEC no later
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than July 31, 2000 and to be declared effective no later than
September 30, 2000;
(c) Should the Company fail to cause a Registration Statement with
respect to the registration of the Escrowed Shares to be filed on
or before July 31, 2000, the Executive shall thereafter have the
right to demand that the Company prepare and file a Registration
Statement covering the resale of the Escrowed Shares immediately
thereafter; and
(d) The Company shall file any Registration Statement including the
registration for resale of the Escrowed Shares without charge to
the Executive. The Executive shall, however, bear the fees of his
own counsel and any transfer taxes applicable to the resale of the
Escrowed Shares sold by the Executive pursuant thereto."
4. No amendment, alteration, modification or waiver of any provision
hereof shall be valid unless in writing and signed by both parties hereto.
5. The waiver by either party hereto of a breach or violation of any
term or provision of this Agreement by the other party hereto shall not operate
or be construed as a waiver of any subsequent breach or violation. The
invalidity of any one or more words, phrases, sentences, paragraphs, clauses or
sections contained in this Agreement shall not affect the enforceability of the
remaining portion(s) of this Agreement or any part thereof, all of which are
inserted conditionally on their being valid in law, and, in the event that any
one or more of the words, phrases, sentences, paragraphs, clauses or sections
contained in this Agreement shall be declared invalid by a court of competent
jurisdiction, this Agreement shall be construed as if such invalid word or
words, phrase or phrases, sentence or sentences, paragraph or paragraphs, clause
or clauses, or section or sections had not been inserted into this Agreement.
6. The parties hereto shall respectively do all acts and things and
execute all documents reasonably required to give effect to this Agreement.
7. This Agreement shall be governed by, interpreted and enforced in
accordance with the laws of the State of California and the parties hereto
expressly attorn to the jurisdiction of the courts of Orange County, State of
California.
8. The division of this Agreement into Sections is for convenience of
reference only and shall not affect the construction and interpretation of this
Agreement.
9. This Agreement may be executed in one or more counterparts each of
which together shall constitute the entire agreement.
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IN WITNESS WHEREOF the Company and the Borrower have executed this
Agreement as of the date first above written.
FUTURELINK CORP.
By: /s/ XXXXXXX X. XXXXX
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Print Name: Xxxxxxx X. Xxxxx
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Print Title: SVP Administration
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By: /s/ XXXX X.X. XXXXX
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Print Name: Xxxx X.X. Xxxxx
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Print Title: VP & Secretary
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/s/ X. X. XXXX /s/ XXXXXXX X. XXXXXX, XX.
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Witness XXXXXXX X. XXXXXX, XX.
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