PureDepth, Inc. Amendment No. 3 to Employment Agreement Jonathan J. McCaman
Exhibit
10.46
Amendment
No. 3 to Employment Agreement
Xxxxxxxx
X. XxXxxxx
PureDepth,
Inc. (“PureDepth” or “Company”) and Xxxxxxxx X. XxXxxxx (“Employee”) are
entering into this Amendment No. 3 (the “Amendment”) to the employment letter
agreement, dated May 7, 2007 (the “Initial Agreement”), as previously amended by
Amendment to Employment Agreement dated April 29, 2008 and Amendment No. 2 to
Employment Agreement dated September 12, 2008 (the “Second Amendment”) (such
amendments collectively with the Initial Agreement, the “Agreement”), this 20th
of February, 2009 (the “Effective Date”).
WHEREAS,
the Board of Directors of the Company has determined that it is in the best
interests of the Company and its stockholders to provide for certain
acceleration of vesting of certain options held by the Employee, as provided
below.
THEREFORE,
the parties agree as follows:
1. Definitions. Except
as otherwise defined herein, all capitalized terms shall have the meaning set
forth in the
Agreement.
2. Equity.
(a) That
portion of Section 5(b) of the Second Amendment relating to the acceleration of
certain options is hereby amended and restated to read as follows:
“Future
Options. Any options granted to Employee after October 1, 2008
shall be subject to the acceleration provisions set forth below.
“If
Employee’s employment with the Company is terminated without Cause on or within
twelve (12) months following the effective date of a Change of Control, then,
subject to the requirements set forth in Section 7.2(a) and (b) of the Initial
Agreement and provided that the release described in such Section 7.2(b) has
become effective in accordance with its terms prior to the 30th day following
the effective date of such termination, then Employee shall become vested in
100% of the shares subject to options to purchase Company common stock then held
by him which were initially granted to Employee after October 1,
2008.
For
purposes of the foregoing, a termination of Employee’s employment shall be
“without Cause” if the Company unilaterally terminates Employee’s employment
with the Company for any reason other than Cause; provided, however, that
termination of Employee’s employment shall not be “without Cause” for these
purposes if it results from the death or disability of Employee. A
termination shall also be “without Cause” if (i) during Employee’s employment,
the Company changes Employee’s title or position without Employee's written
permission, such that he experiences a material diminution in his authority,
duties or responsibilities (a “Material Adverse Change”), (ii) within 10 days of
the effective date of the Material Adverse Change, Employee provides written
notice to the Board of Directors of Employee’s intent to voluntarily resign from
employment with the Company due to the Material Adverse Change if such Material
Adverse Change is not cured within fifteen days of the Board’s receipt of such
notice, (iii) the Board does not cure the Material Adverse Change within fifteen
days of its receipt of such notice, and (iv) Employee voluntarily resigns no
later than the end of business on the fifteenth day following the Board’s
receipt of such notice.”
(b) Section
5(a) of the Second Amendment relating to the acceleration of vesting of options
granted to Xx. XxXxxxx on or prior to October 1, 2008 (the “Initial Options”) is
not amended hereby. Notwithstanding the foregoing and for purposes of
clarity, such acceleration provisions shall terminate with respect to any
portion of an Initial Option which is cancelled, and any new options granted to
the Employee on or after such cancellation shall be subject to the terms of
Section 2(a) of this Amendment.
3. Application of Section
409A.
(a) Notwithstanding
anything set forth in the Agreement to the contrary, no amount payable pursuant
to the Agreement which constitutes a “deferral of compensation” within the
meaning of the Treasury Regulations issued pursuant to Section 409A of the Code
(the “Section 409A Regulations”) shall be paid unless and until Employee has
incurred a “separation from service” within the meaning of the Section 409A
Regulations. Furthermore, to the extent that Employee is a “specified
employee” within the meaning of the Section 409A Regulations as of the date of
Employee’s separation from service, no amount that constitutes a deferral of
compensation which is payable on account of Employee’s separation from service
shall paid to Employee before the date (the “Delayed Payment Date”) which is
first day of the seventh month after the date of Employee’s separation from
service or, if earlier, the date of Employee’s death following such separation
from service. All such amounts that would, but for this Section,
become payable prior to the Delayed Payment Date will be accumulated and paid on
the Delayed Payment Date.
(b) The
Company intends that income provided to Employee pursuant to the Agreement will
not be subject to taxation under Section 409A of the Code. The
provisions of the Agreement shall be interpreted and construed in favor of
satisfying any applicable requirements of Section 409A of the
Code. However, the
Company does not guarantee any particular tax effect for income provided to
Employee pursuant to the Agreement. In any event, except for
the Company’s responsibility to withhold applicable income and employment taxes
from compensation paid or provided to Employee, the Company shall not be
responsible for the payment of any applicable taxes on compensation paid or
provided to Employee pursuant to the Agreement.
7. Continuation of Other
Terms. Except as set forth herein, all other terms and
conditions of the Agreement shall remain in full force and effect.
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/s/
Xxxx
Xxxxx
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Xxxx
Xxxxx
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Member,
Board of Directors
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Compensation
Committee
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Date:
3-10-09
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Acknowledged,
Accepted and Agreed:
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/s/
Xxxxxxxx
X. XxXxxxx
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Xxxxxxxx
X. XxXxxxx
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Date:
3/3/09
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