EXHIBIT 10.6A
AMENDMENT NO. 2
TO EMPLOYMENT AGREEMENT
This Amendment No. 2 (this "Amendment") to Employment Agreement (the
"Agreement") made as of the 4th day of February, 1997 between Banyan Systems
Incorporated, a Massachusetts corporation (the "Company"), and Xxxxxxx X. Xxxxx
(the "Employee") is effective as of the 16th day of October 1998. Capitalized
terms used and not otherwise defined herein shall have the meanings ascribed to
them in the Agreement.
The parties hereto agree that the Agreement is hereby amended as follows:
1. The first sentence of Section 2(a) of the Agreement is amended to
provide that the Employee shall serve as Chairman of the Board,
President and Chief Executive Officer of the Company, as elected at
the October 14, 1997 meeting of the Board, reporting to the Board.
2. Section 3.1 of the Agreement is amended to provide that the Company
shall, effective January 1, 1999, pay the Employee, in bi-weekly
installments, a minimum base salary of Four Hundred Thousand Dollars
($400,000) per year. Such base salary shall be subject to adjustment,
from time to time but not later than, one year subsequent to the date
hereof, as determined by the Board.
3. Section 3.2(a) of the Agreement, which relates to the Employee's
"target bonus," is amended to provide that the Employee shall be
eligible to receive a minimum target bonus of Two Hundred Thousand
Dollars ($200,000) following the end of each calendar year beginning
with 1999, based on the achievement of performance objectives (based
primarily on operating profit and cash flow objectives or other
mutually acceptable objectives) as determined by the Board. Section
3.2(a) is further amended to provide that, beginning in 1999, 50% of
the target bonus shall be paid to the Employee as an advance against
such year's target bonus in quarterly installments of Twenty-Five
Thousand Dollars ($25,000) in each of March, June, September and
December of such year. The balance of the target bonus for 1999, if
any, shall be paid at the conclusion of the audit for such year
(typically sixty (60) days after the end of the year). The Employees
target bonus and any advances thereon paid by the Company shall be
subject to adjustment, from time to time but not later than, one year
subsequent to the date hereof, as determined by the Board.
4. Section 3.2(b) of the Agreement, which relates to the Employee's
"stretch bonus," is amended to provide that the Employee shall be
eligible to receive such bonus for the year 1999 under the same terms
applicable to 1997 and 1998. Section 3.2(b) of the Agreement is
further amended to provide that the Employee's stretch bonus shall be
subject to adjustment, from time to time but not later than, one year
subsequent to the date hereof, as determined by the Board.
5. On the date hereof, the Company and the Employee shall enter into and
execute the Restricted Stock Agreement attached hereto as Annex A (the
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"Stock Agreement"), pursuant to which, and subject to the terms and
restrictions therein, the Company shall issue and sell to the Employee
Two Hundred Thousand (200,000) shares (the "Shares") of the Company's
Common Stock at a per share purchase price of $0.01. If the Employee
is unwilling to sell or unable, due to restrictions imposed by the
Securities Act of 1933, as amended ("SEC Restrictions"), or the Stock
Agreement ("Stock Restrictions"), to sell a sufficient number of
Shares to satisfy his federal and state tax obligations with respect
to the issuance to him of the Shares (including his obligation to pay
to the Company any withholding taxes upon such issuance), the Company
shall lend to the Employee such amounts as are necessary to satisfy
such obligations. Such loans shall bear no interest until the SEC
Restrictions and the Stock Restrictions, if any such restrictions
exist, lapse and shall bear interest at the prime rate less one
percent (1%) after such SEC Restrictions and Stock Restrictions lapse
or if no such restrictions exist but the Employee is unwilling to
sell. Such loans shall be due and payable one (1) year after the date
hereof, provided that the after-tax proceeds of any earlier sale of
the Shares shall be used to prepay such loans.
6. Upon the occurrence of a Change in Control, each outstanding
restricted stock award, including, without limitation, the Shares,
held by the Employee shall be deemed to be fully vested and no longer
subject to a right of repurchase by the Company. For the avoidance of
doubt, this paragraph 6 shall not apply to stock options.
7. Effective as of the date hereof, and at no additional cost to the
Employee, the Company shall increase the Employee's Company-provided
term life insurance benefit from two (2) times the Employee's annual
base salary to five (5) times the Employee's annual base salary.
8. For the purposes of Section 10 of the Agreement, and until the
Employee shall designate a different address to the Company pursuant
to Section 10 of the Agreement, the address of the Employee shall be:
X.X. Xxx 000,
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Xxxxxxx, XX 00000-0000.
To the extent any provision of this Amendment is inconsistent with any
provision of the Agreement, such provision of the Agreement is hereby modified
and superseded by the terms hereof. Any term of the Agreement not so modified
or superseded shall remain in full force and effect.
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EXECUTED as of the 16th day of October 1998.
COMPANY:
BANYAN SYSTEMS INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and
Chief Financial Officer
EMPLOYEE:
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
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